Mixed legal systems

This essay introduces a contemporary description of the mixed jurisdiction of South Africa. It depicts how in South Africa co-existence, harmonization and resistance are found in different fields of law and identifies both pitfalls and benefits of mixity. Several components are introduced: civil law, English common law, local customary law, the Bill of Rights and international legal instruments. The successful harmonisation of civil and common law is ascribed to introduction of the English administration of justice. The British institutions, structure and process placed the focus on legal procedure and succeeded to avoid conflict between different legal cultures as economic transactions ignored different value systems and doctrine. The same model was, however, not applied in respect of indigenous customary law, where from the onset choices between values and doctrine were cast in stone with the consequent conflicts. The new constitution of 1996 is transformative and the courts are instructed to develop common law and indigenous law to promote the rights, values, spirit and purport of the Bill of Rights. Thus, in all fields of private law court decisions attempt to realise such transformation by harmonising constitutional values with legal tradition while strong impetus has been provided by legislation. As it appears that the need for harmonisation between civil and common law is experienced mainly in the commercial field, the question arises whether civil law jurisdictions can transform themselves into a mixed jurisdiction by way of legal transplants to facilitate the global market. Mixed legal systems developed mostly as the result of colonial history. Civil law and common law were able to mix because the common law court system and procedure made it possible for English trained judges to successfully merge certain areas of private law, primarily in the commercial field. This means that the court system and the law of procedure, but especially training, qualification and selection of judges are of paramount importance.

Bali, as a province with strong roots in local cultural traditions and significant economic importance for Indonesia, is striving to balance modernity and tradition, economics, especially mass tourism, and cultural identity. This is why Universitas Warmadewa, one of the largest Balinese universities, chooses the theme ‘Local Wisdom and Business Law’ for its international conferences each year.As a non-Indonesian legal scholar, this theme presents two challenges for me. Firstly, I am not an expert in tourism economics and can only approach the topic from a traditional market law perspective, theoretically. Secondly, the terms used in Indonesian legal discussions may seem vague and unclear from a German perspective, as the legal discussion in Indonesia integrates traditional legal phenomena pragmatically into the applicable legal system. This may also be historically conditioned because since independence Indonesia has to handle a legal pluralism in law, which also finds its cause in the legacy of the colonial era.When speaking on the legal perspective of ‘local wisdom’, several questions are unclear to me:What exactly is local wisdom and how can it be defined?Where does it fit into the Indonesian legal system?What role can local wisdom play in contemporary law?Local wisdom may be understood as part of traditional customary law or Adat, at least in terms of its influence on legal issues, as the conference theme suggests. The terminology around ‘customary law’, ‘Adat’, ‘indigenous law’, or ‘living law’ is still a problematic issue in Indonesian scientific discussion and should only be briefly mentioned in this presentation. The term ‘Adat law’ was originally not used in Indonesian society and was first systematically used by the Dutch. Van Vollenhoven, considered the ‘father of Indonesian Adat law’ by Indonesian scholars, defined Adat law as law that is not based on codified legal rules from the legislator. This definition is still used by contemporary Indonesian scholars. Adat law in this sense contains sanctions, making the character of ‘law’. It was characterized by Van Vollenhoven as dynamic and flexible folk law, which combines the term with the often-used term of ‘living law’. There are numerous discussions in Indonesian literature about Indonesian customary law, its functions, and significance, but the terminology has not been clearly defined and the role of religious law is also subject to numerous publications.Therefore, having read various contributions on the topic, I am left confused because some of them discuss the existence of legal principles of living customary law and describe them as “national Indonesian principles,” which can replace parts of the post-colonial Indonesian law, but they do not clearly identify these principles. The topic seems to be of almost patriotic importance to Indonesia, making it particularly difficult for foreign scholars to approach the subject in presentations before Indonesian colleagues. My contribution should be seen in light of this difficulty, as a first observation of the phenomenon from a foreign perspective.The term Adat is already difficult to comprehend, and this is even more true for the term “local wisdom” in a legal context. So, what is the “Local Wisdom” that I am asked to talk about? The Terms of Reference of our conference describe the meaning of “local wisdom” mainly as the clash of market actors in local Balinese tourism that can lead to conflicts, which the law should resolve. These conflicts are said to occur because local communities and institutions, based on a kind of traditionally grown trust, seek to build and maintain their business relationships in the tourism industry. This trust, which one could call “traditional good faith,” meets the need to regulate contractual arrangements more formally in terms of contract law (“more official...instead of just relying on promises or good faith”).In this sense, local wisdom is an aspect of good faith. Based on this understanding of the term, I have no systematic issues with the term “local wisdom.” However, it should be noted that good faith and contract, as a predictable shaping of legal relationships between market actors, should not be seen as opposites. It is possible and necessary to resolve disruptions in contractual relationships in light of good faith and, if necessary, adapt contractual regulations. Here, “local wisdom” should not be understood as a unique source of good faith, but as a general aspect that can influence the expectations of the contracting parties and their trust in shaping the law. This raises the question of which factors should be taken into account by the non-local contracting party in good faith, and which should not. It is a question of the concrete assessment of the structure of interests and the balance of the contract, how to allocate risk and assign external aspects to the contracting parties and which aspects should be considered subsequently.This is a theoretical matter, and it is unlikely to play a significant role in practice since local market actors and communities have the freedom, within the framework of private autonomy, to incorporate their traditional interests into the contract negotiations. This allows for traditional interests to participate in the “equivalence justice” of the contract. However, if the traditional interests of the local community result in unacceptable consequences for the contract’s execution, the question of whether these reasons can lead to a change in the contract’s basis may arise. In civil law systems, the clausula rebus sic stantibus is regulated as a limitation of the pacta sunt servanda principle and falls under the principle of good faith (bona fides). If the invocation of “local wisdom” by one party leads to the other party having to agree to an adjustment, it would have to be examined.I would like to give you an example of this, which seems credible even if no prove about the issue can be delivered due to the ‘popular’ source: A person without Indonesian citizenship acquired the right to use a plot of land with a house in Bali ten years ago. Since foreigners cannot acquire land ownership in Indonesia themselves, the foreigner had agreed on a legal arrangement with an Indonesian citizen resident in Bali, in which the Indonesian acquired ownership (hak milik) of the land with the foreigner’s money and agreed on right to use for the foreign partner. After ten years, the foreigner wanted to sell the property again to move to his country of origin. The agreement with the Indonesian partner stipulated that the Indonesian partner must agree to the sale of the plot on the wish of the foreign partner and would receive 10% of the sale amount in the event of a sale. In the case described, however, the Indonesian partner seems to have refused to sell the property on the agreed terms. He was not satisfied with the 10% share and demanded a 70% share instead. As justification for this, he argued that the contract terms should be changed because he had spiritually enhanced the property over the years through certain religious rituals and this required a revaluation of his shareholding.It is not known whether the case was heard in an Indonesian court and how it was finally settled. Assuming the case had occurred as described, from the perspective of Indonesian civil law, it is clear that no change in the business basis of the contract occurred as a result of the Indonesian partner’s spiritual acts, which can lead to an adjustment of the agreement between him and the foreign contractual partner. Just as local communities depend on their interests in cultural identity being taken into account even in legal relations with partners coming from outside, foreign investors must be able to rely on certain standards of contractual obligation. The principle of good faith would be grotesquely overstretched if local contracting partners could use fuzzy notions of ‘local wisdom’ to make contractual arrangements more flexible in their favour.Another example of the clash between traditional legal customs and supra-regional legal ideas in highly traditional markets with supra-regional economic importance, such as Bali, is the handling of legal disputes and methods of dispute resolution. The trust of traditional communities in supra-legal ties of interest in business relationships, as mentioned in the Terms of Reference to this Conference, meets a systemic trust in formal contractual regulations of non-local actors. The reference points of trust of the respective groups of market actors thus differ. This also affects dispute resolution. According to Sulastriyono, the voluntary character of traditional customary law has the advantage over civil law methods of litigation and dispute resolution of a ‘win-win’ solution, which leads to greater acceptance of the solution by the parties to the conflict. In theory, this is undeniable. However, it is questionable whether this acceptance can also be achieved among contract participants who do not originate from the respective culture, because the existence of sufficient advantages for a party may well depend on the integration of the party in the respective local society. Moreover, the indisputable advantages of consensual dispute resolution can also be well integrated in state procedural law via mediation mechanisms.Cases such as the one outlined one above would in principle be likely to erode the confidence of foreign investors in Indonesian law in general if courts do not rule clearly and draw clear boundaries here. The example seems to be a particularly extreme case, but it shows how important it is to clearly determine the meaning and possible role of terms such as ‘local wisdom’ and ‘tradition’ for use in law. Culturally related aspects are prone to serve as a tool for discrimination against individuals and companies that do not belong to the respective cultural environment. The difficulty, for example, of establishing an intellectual property right on cultural heritage follows not only from the contrast between individual subjective rights and collective subjective rights. It follows above all from the problem of determining the collective rights holders who are to benefit from ‘their’ cultural heritage. Who is a member of a certain culture? Is there a generational link or does it depend on the integration of the individual into his or her living environment? If the legal system does not want to fall back to abstruse considerations of ‘blood identity’, what remains is the assignment of such claims to territorial authorities or the state itself, whose task it is to protect cultural diversity on its territory. This is the path that the Indonesian legislature had taken in Art 38 Law No 28/2014 on copyright law.The misuse of cultural aspects carried into the application of law is also visible in another aspect: In another paper I have pointed out the problem that the concept of traditional customary law in Indonesian law and the position of Adat law in the hierarchy of norms seems in need of clarification. Shidarta notes that there is no sufficient clarity about the relationship between Adat law and state law and thus no consistent system of Indonesian law as a whole. Accordingly, the maturation of an independent Indonesian legal system suffers to this day from the internal conflict with the colonial legacy of existing state law based on Dutch civil law and the lack of a consistent overarching pluralistic concept of law. This is seen by Shidarta as a major reason why the systematic positions of customary law, Islamic law and western law within national law are not clearly defined and why a clear hierarchical determination of the various sources of law in relation to national law is lacking. The doubts about the systematic location and certainly also the failure to establish the principles of traditional customary law as original Indonesian law after the attainment of independence instead of the sources of law inherited from the colonial period are probably due - in addition to the idea of the state founders of an Indonesian unitary state (‘eenheidstaat’) - above all to the disagreement about the concept of customary law, which is formally understood in the sense of a binding source of law defined during the colonial period, or as post-colonial Adat law in the sense of traditional customary rights of various Indonesian ethnic groups either with a binding character or as norms of social order based on voluntariness. In this respect, too, different definitions of the term can be found in the literature:There is thus generally a more philosophical recognition of the importance of traditional customary law in the sense that customary law reflects the actual sense of law of the people and the Indonesian people as a nation. The latter statement seems problematic to me because the statement only applies with regard to the significance of customary law as a source of law, but not to the content of the individual customary laws of the various ethnic groups, in which different legal customs apply in each case. It therefore seems questionable to me whether Adat law can be understood in the sense of an alternative to Indonesian state law. In my opinion, Adat as a source of concrete legal norms has a supplementary development perspective in the communal area. Here it can certainly have an influence on economic life in the regions if it is applied consistently and transparently, and its importance would grow especially if the autonomy of municipal territorial units were strengthened, and a strong federalism were developed. However, a scientific inventory of norms and principles of local customary law is then required, and a clear formulation of such norms is needed, because it must be ruled out that the invocation of undefined, non-transparent or arbitrarily formulated Adat rules unduly restricts the freedom of market actors and are used as protectionist instruments in the provinces.In this sense, I believe that the postulate that Indonesian law must simply recognise Adat law as it has grown and as it is applied alive within the Indonesian local societies falls short, because the compatibility of social rules based on voluntariness and constantly changing with the overall legal system based on the rule of law is at least debatable. In other words: either one renounces the legal certainty and predictability of legal norms in the area of traditional customary law. This could then constitute a breach of the constitutionally enshrined principle of the Rule of Law. Or one formulates clear norms based on traditional legal principles, which have the character of binding legal norms and applies them in the sense of subsidiarity in the local environment with priority over central state law in certain predefined aspects. Then the rules of the hierarchy of norms must be correspondingly clear. However, the question of the hierarchy of norms then no longer presents itself as a problem of the nature of Adat or customary law because the latter would have lost its character as actual customary law. The advocates of a strong recognition of Adat by state law will, however, reject this path because they see the advantage of traditional customary law over state law precisely in its flexibility and ability to change. This flexibility would no longer be readily available through an integration of traditional principles into a local classical law in the sense of imperative norms.A clear hierarchy of norms defined by constitutional law seems indispensable, because such local customary law cannot displace state law without further ado, but only if the principle of subsidiarity and the better regulation of local circumstances by local law indicates otherwise. This would also be in line with the philosophical assessment of local customary law as the law that best captures the living conditions of the people in its cultural area of application. The importance of the principle of subsidiarity should generally be given more attention in the discussion on legal pluralism in Indonesia. This can not only ensure greater recognition of traditional customary law, but also enable the transparency necessary for the predictability of the law.Insofar as Adat is to be understood as the source of ‘abstract normative’ aspects, as certain common Indonesian legal values and principles in the sense of a ‘pan-Indonesian’ legal order and, as such, is to find its way into an independent state Indonesian civil law, legal scholarship in Indonesia will also have to identify and clearly define these principles. In doing so, it will be necessary to determine which principles of traditional customary law in the various regions of the archipelago are suitable as overarching legal principles, so that they can possibly have an identity-forming effect in a national private law. This difficult process might lead to reform of the Indonesian Civil Law which meets the special requirements of a socially and culturally integrated legal system.Indonesia as a state with a unified internal market needs a cross-cultural private law and commercial law. Consideration of the interests of local communities and traditions is of importance in a multicultural state. The Indonesian constitution therefore emphasises the specifics of traditional rights and thus guarantees Adat its own status in the legal system. However, there seems to be a lack of a clear hierarchy of norms in the legal system and a clear definition of the nature of Adat. A hint of a certain hierarchy between Adat and state law is indeed found in agricultural law (Art. 5 Law No. 5/1960 on the Basic Regulations of Agrarian Principles) and in forestry law (Law No. 41/1999 on Forestry). Adat is recognised here but must harmonise with state law. It is therefore likely to be in a relationship of subsidiarity to state law. The fundamental assertion of the primacy of state law over other co-existing legal systems is also in line with the view of Indonesian legal scholars such as Sunaryati Hartono. Referring to Griffiths’ formulation of “weak legal pluralism”, where co-existing legal systems are subordinated to a dominant formalistic national law, it can be stated that the Indonesian legal system follows this model.In my opinion, the integration of traditional customary law into the legal system should not be done as a mere tolerance of state law towards deviating regulations of facts in certain regions. From my perspective as a foreign observer, this seems to lead to significant problems for the development of the Indonesian economy and for investment. In particular, this seems to me to be the case for Bali. Local Wisdom can be incorporated into the contractual relations of the parties within the framework of private autonomous arrangements. A ‘creative’ qualification of protectionist measures against outside market actors or the justification of the failure to sanction breaches of contract or violations of law against outsiders as ‘Adat’ or ‘protection of local traditions’ should be consistently avoided.Incidentally, it seems to me that in contract law there is no real opposition between state law and traditional customary law. Either the parties trust each other, in which case state law does not prevent an agreement based on good faith. Or they do not, in which case only state contract law can lead to proper solutions. The same applies to traditional dispute resolution methods, to which the parties to the conflict can easily submit. In contrast, the integration of customary law as independent Indonesian legal principles or as legal norms at the local or municipal level into Indonesian law would require considerable academic effort. For this, the principles concerned would have to be clearly identified, systematised, and formulated to be able to substantiate a claim to validity beyond the respective local communities. The mere reference to historically evolved convictions of local communities is too vague. The term ‘local wisdom’ seems to me to be problematic in this sense to accurately describe the question of the collision of traditional customs and expectations of outside market actors, especially since it is already conceptually positively evaluative. Finally, it should not be forgotten, that the continental European codifications are culturally neutral and in big parts based on the Roman law. Roman law itself was not developed under the cultural framework of northern and middle European regions, however it served well as source for the modern European codifications. These codifications are working fine until these days in different nations without obvious incompatibilities with local traditions. The amount of a ‘Volksgeist’ after the idea of Friedrich Carl von Savigny within the Private Law does not play a big role in the contemporary discussion as law should be seen in a pragmatic way as a viable tool to organize the modern society. Indonesia is an important economically emerging nation. As such it might be a good idea to keep an internationally compatible private law, which might be carefully adapted to certain peculiarities of the Indonesian society. The use of general clauses as entrance doors for local legal convictions seems to be a good way for that and a clearly defined legal hierarchy with a constitutionally based legal subsidiarity principle seems important. In contrast, the foundation of modern law on nationalistic, local, or indigenous traditional customs should only be done with extreme caution, if at all. The contemporary discussion on the role of Adat in Indonesian law shows the great difficulty of determining viable legal rules that can enter a future reformed Indonesian private law as ‘originally Indonesian’. The criticism against Von Savigny’s ‘Volksgeist’ idea also applies here: Defining who the ‘people’ are and what constitutes their common identity is already hardly rationally possible in a non-multi-ethnic state, even more in a multi-ethnic state. National identity-forming circumstances are hardly suitable as common principles for pluralistic societies.

Introduction: This article will outline how the application of restorative justice in the civil law system, the common law system, and the Indonesian legal system compares.Purposes of the Research: This study aims to provide a comprehensive comparison of the regulation and implementation of restorative justice across three legal systems - civil law, common law, and Indonesia’s hybrid legal system - and to identify best practices and challenges that can inform the development of restorative justice in diverse legal contexts.Methods of the Research: The study uses a normative legal method, combining a legal concept approach to examine the philosophical and ethical foundations of restorative justice with a statutory approach to analyze formal legal mechanisms. This methodology links legal theory with practice while highlighting the integration of normative principles within Indonesia’s socio-cultural context, including Pancasila and customary law.Results of the Research: This study compares restorative justice implementation in civil law, common law, and Indonesia’s legal system. Civil law is rigid and procedural, while common law allows flexible mechanisms such as victim–offender mediation. In Indonesia, despite Supreme Court Rule Number 1 of 2024, challenges include limited understanding among law enforcement, inconsistent application, and insufficient institutional support. Strengthening implementation requires harmonized regulations, professional training, community-based mechanisms rooted in local wisdom and customary law, and public awareness. Indonesia’s model highlights a transformative approach that integrates restorative principles with national values of humanity, justice, and social harmony.

The Anglo-American law have a considerable amount of accomplishments, which have become a worldwide asset. In terms of globalization and interaction, to use these achievements would be beneficial for further development of Ukrainian legal system. However, the very philosophy and reasoning behind the precedent-based common law is different from that in the civil law tradition of which the Ukrainian law is a part. This paper is intended to contribute to the examination how the mechanism of Anglo-American law operates in view of the expediency to introduce some of its elements into the Ukrainian jurisdiction. The initial part devoted to the emergence of, and formation of, the common law. It is noted that in the case of common law the influence of Roman law should not be denied. Relying mostly on praetorium ius experience, it has manifested itself in other directions and forms compare to civil law system. Therefore, the both, common law and civil law, despite their differences have been formed on the common ground – the Roman legal tradition. Taking into consideration that throughout their history they exchanged fruitful ideas, there is no irreconcilable, "genetic" incompatibility between them. Thus, it would allow to successfully implant certain common law elements, first of all precedent as a source of law, in the body of Ukrainian law, a part of civil law system. The paper notes that issues of common law mechanism have never been a priority for scholarly research in Ukraine as in a country of civil law tradition. The inertial influence of the Soviet law has also contributed to this situation. According to the communist ideology and the positivist visions on which the Soviet law was based, the precedent has not been considered as an acceptable legal instrument. In order to clarify how the mechanism works, the paper provides an overview of precedent and stare decisis doctrine as key components of common law. While a principle of stare decisis binding courts to follow legal precedents in cases with similar circumstances is in the core of Anglo-American law, in civil law systems precedent is not considered as binding. This discussion is followed by an analysis of judicial lawmaking. The paper specifies that in the common law systems, courts are not absolutely bound by precedents. In terms of radical changes in political, social or legal areas, they are entitled to re-examine and apply the law differently without legislative intervention, to adapt it to new circumstances. Thus, the Anglo-American legal tradition provides much broader scope for judicial lawmaking than Romano-German law. However, there is no consensus on the range to which it should be extended and to which extent it should rely on precedent. Within the framework of this controversial issue judicial activism and judicial restraint, two opposite philosophies of making a ruling in common law, are addressed. In order to examine the multifaceted nature of correlation between stare decisis principle and judicial lawmaking, the latest experience of the Supreme Court of the United States' on overruling precedents is considered. The paper summarizes that, most likely, mixed legal system associated with Nordic countries should be set as the reference point for the movement of Ukraine in this area. Such approach would provide rather broad scope for the operation of the common law elements, while safeguarding its omissions such as unjustified judicial activism.

African customary law was the dominant legal system in much of pre-colonial sub-Saharan Africa. With the advent of colonialism in Africa in the middle of the nineteenth century, customary law gradually lost its primacy to the European-style legal systems and laws brought by the colonizing nations. The common law, civil law, and, to some extent, Roman-Dutch law became the general law and the primary legal system in many African countries in the colonial and post-colonial eras. In addition, Islamic law had emerged as the dominant law in some places in the continent prior to colonialism. Islamic law is different from customary law, even though the British colonial authorities decreed in some of their colonies that Islamic law is a customary law. With these developments, customary law lost and never regained its status as a full-fledged legal system in modern African nation states.

Over the last decade, missions of the UN have assisted with constitutional reforms including issues of federalism. The hopes for peace with regard to federal structures have often failed. This paper elaborates possible reasons why these hopes were disappointed. It will show that one should understand the differences between Common Law and continental systems with regard to federalism. Some experts from Common Law countries fail to appreciate the substantial difference between federal Constitutions embedded in a Civil Law culture and those embedded in a Common Law culture. The reasons for the success or failure of past, present and future federal reforms may help to improve UN activities in this field. States of the Common Law tradition are not collective units, which have to steer their society. The Jacobins of the French Revolution, considered the State as their instrument to transform feudal society into a society of equal individuals. The Civil Law tradition has its roots in the French Revolution and in the sovereignty of the national legislative assembly as the only legitimate lawmaker of the State. The unity of the law does not depend on decisions of courts but only on the legislature. Constitutions of Civil Law federations need to enable the specified governmental branches of the federation to impose sanctions against federal units that fail to comply with federal laws. According to the perspective of the Civil Law one has to deal with two ‘States’ claiming sovereignty in a hierarchy, while from the perspective of the Common Law one has to deal with mere ‘governments.’ Constitutions of multicultural federations embedded within the Civil Law culture will have to empower not just the federation but also the federal units to develop the different cultural identities. To foster different cultures is however, not a major function of the State of the Common Law tradition. Federalism of the Civil Law tradition is more complex than according to the Common Law tradition. Important differences between federations of a Common Law and Civil Law tradition lies in the lawmaking power of the courts. In Common Law, courts and legislature share the task of lawmaking; in Civil Law countries, the legislature regulates all issues of civil and criminal law. In a Civil Law country, legislatures, executives and courts cannot function if there is no valid local Constitution empowering those branches of the federal units. Thus, the federal Constitution of a civil law country has to establish the powers of the governmental branches of the federal units. Within federal system of the Civil Law, the federal units administer, implement and execute the laws of the federation. Constitutions of Civil Law federations need special provisions for the power of the federation to control and implement federal laws in the federal units. The civil law judiciary has no contempt of court against the administration and against authorities of federal units.

Prior to 1969 the legal system of Botswana enjoyed the characteristics of the dual existence of customary and common law (and the courts in which they were administered) typical of most of Anglophone Africa. The common or general law was the Roman-Dutch law “received” from the Colony of the Cape of Good Hope and this was the only law to be applied in the ordinary courts (High Court and Subordinate Courts) in the exercise of their original jurisdiction. Customary law was the preserve of the customary courts. Three main questions were inherent in the working of this system:(1) How was it to be determined which system of law (and, therefore, which system of courts) was appropriate for deciding a particular case?(2) If it was decided that customary law was to be applied, which system of customary law was appropriate?(3) Again, if customary law was to be applied, how were its rules to be ascertained in the courts?The Customary Law (Application and Ascertainment) Act of 1969 appended to this article, introduced far-reaching changes in the administration of the dual legal system and in particular contained for the first time statutory answers to the questions posed above.

This article challenges common understandings about the distinct features of the so-called “mixed jurisdictions”. One of the main features found in this group of legal systems, it is argued, is that they are civil-law in nature in the sphere of private law, while their public law sphere is typically Anglo-American. I argue that this may be correct as far as the structural elements of these two branches of law, for example with regard to the court structure; it may also be relevant in the context of the general, overarching values underlying both branches of law. However, as far as the detailed arrangements are concerned, a variety of set-ups reflect different types of mixes and combinations in all legal systems, including “mixed jurisdictions”: innovation, transplantation and adoption of which can be traced inter alia to global crosscutting between these two families of legal systems.This argument is developed through an analysis of the evolution of three grounds of review of the administration-unreasonableness, proportionality and legitimate expectations/ administrative promise-in the United Kingdom, the “ancestor” of the common law family of legal systems, and in Israel, currently considered a mixed jurisdiction. I show that both innovation and reliance on civil law constructs can be found in both systems just as much as common law constructs. The influence of EU law, especially ECtHR jurisprudence, renders the public law of the United Kingdom, to a certain extent, to be more civil-law-like than its so-called daughter system. Whether this mix of patterns is an unavoidable result of the irresolvable tension between exclusionism and openness, both willful and subjected, or matter that is particular to the distinct nature of administrative law and its case-by-case development in common law systems is a matter for further consideration. Clearly, though, legal reality, at least in the field studied in this article, challenges the viability of the distinction between “pure” and “mixed” legal systems.

Like in most Western countries, the legal system in Israel is constantly evolving. Israel is a mixed jurisdiction in many respects. Historically, during the time of the Ottoman Empire, the land of Israel was ruled by Turkish law, which was followed by British law during the time of the British Mandate. Today, Israel’s legal system still reflects a mixture of civil law and common law. This mixture is evident, for example, in the combination of codified law and precedent-based law. Several areas of the law were codified, at the time of the British Mandate, in ordinances that remain binding today. However, these ordinances were supplemented and widely interpreted in Israel’s case law, and an “Israeli common law” was created. Today, legislative efforts are being made to codify this new common law. The mixed nature of substantive law in Israel is also illustrated by Israel's constitutional regime. While Israel has no formal constitution, it has a partial bill of rights (the basic laws) enacted by its parliament. In 1995, the Israeli Supreme Court decided, referring to American constitutional law, that it had the authority to invalidate “unconstitutional laws”. In its decision, the Supreme Court relied on a limitation clause, included in the new basic laws and inspired by the Canadian Charter of Rights and Freedoms. Since then, the Israeli Supreme Court has developed a number of constitutional rights from these basic laws, influenced by both the American concept of liberty and the European concept of human dignity. Finally, comparative law plays an important role in Israeli case law. While British common law no longer binds the Israeli judiciary, judges have wide discretion to use comparative law in their decisions. When relevant, referring to foreign law may be of great assistance to a judge by providing inspiration in a difficult case. Utilizing many different sources of law may help to create harmony between various jurisdictions, especially in times of increasing globalization.

This study examines the comparative analysis of civil law systems between Indonesia and Malaysia, which adhere to the Civil Law and Common Law systems, respectively. Indonesia implements the Civil Law system, inherited from Dutch colonial rule and based on the Burgerlijk Wetboek (BW), whereas Malaysia adopts the Common Law system, derived from the English legal tradition. The fundamental difference between these systems lies in their sources of law, where Civil Law prioritizes codification through written statutes, while Common Law relies on jurisprudence and judicial precedents. Additionally, Malaysia employs a mixed legal system, incorporating elements of Customary Law and Islamic Law in specific legal matters. This study further explores the potential for harmonization of civil law between Indonesia and Malaysia through the Private International Law (PIL) framework, which facilitates cross-border dispute resolution based on the lex patriae and lex domicilii principles. By employing a Juridical-Normative methodology and adopting Comparative, Analytical, and Conceptual approaches, this research underscores the significance of understanding legal system differences to enhance legal cooperation between the two nations.

Pál SÁRY of all the substantive and procedural rules that gained authority through judicial application, even without formal legislative sanction. The work's prologue defines basic concepts such as justice, law, jurisprudence, judging, etc., using many Roman legal ideas. The first part deals mainly with noble private law, but the nobility's cardinal privileges are also included here. The second part contains the rules for nobles' litigation. The third part details town and serf law, as well as Transylvanians' special law. The courts began applying the Tripartitum, and it became mandatory in practice, despite the fact that the king had not promulgated it as law. It was soon translated into Hungarian and Croatian. Werbőczy's work had a decisive effect on legal life for several centuries. In Czechoslovakia, the Tripartitum was a source of civil substantive law until 1950, when the first Czechoslovak civil code entered into force. In addition to the Tripartitum, other collections of customary law, which were also compiled in the region, are also worth mentioning. The law code of Poljica is the most important historical source for the Republic of Poljica, which was an autonomous community in central Dalmatia (near modern day Omiš, Croatia). Its provisions, which were written in different times, contain norms of constitutional, criminal, civil, and procedural law and describe the social and economic relations of Poljica in the 15 th through 18 th centuries. The research on the customary law had an eminent representative in the humanist jurist Viktorin Kornel of Všehrd, who compiled an outstanding law book around 1500. His Knihy devatery (Nine books on the laws, courts, and tables of the Bohemian country) describes the Bohemian court organization and procedure, and also presents the rules of private law and partly of criminal law. The Korektura Taszyckiego of 1532 can be highlighted among the collections of Polish customary law. In most cases, town laws were based on legal customs that German settlers had brought from abroad, which they could continue to use under royal privileges. Towns that were founded subsequently often took over older towns' laws, creating 'town law families.' In this system, the law court of the 'mother-town' became an appellate court for the 'daughter-towns.' We can get a detailed picture of legal life in medieval and early modern towns based on their law books. Some significant town law books from the East Central European region are the focus of the fifth chapter of our textbook, which was written by Jakub Razim and Lenka Šmídová Malárová. The mid-14 th -century law book of Brno (or the law book of Jan the notary) was compiled for sworn men and magistrates, who were responsible for exercising judicial authority. This Latin compilation of municipal law and practice with court decisions is systematized by subject and divided into alphabetically arranged sections. The book's author, who worked as a notary in the Brno town office between 1342 and 1358, also applied Roman law, especially where local rules were absent. Use of the Brno law book spread quickly in Moravia and Bohemia, where it was abbreviated by Jan of Gelnhausen. The author of the Buda law book (Ofen Stadtrechtsbuch) was probably Johannes Siebenlindner, a juror at the Buda (Germ. Ofen) town court and later a town judge, Pál SÁRY the Habsburg rulers of Hungary and Croatia were also Czech kings. Between 1569 and 1795, the Polish-Lithuanian Commonwealth was one of the largest and most populous countries in Europe. This real union ended in 1795, when its territory was divided between Russia, Prussia, and Austria. Hungary's situation within the Habsburg empire changed several times. The Austro-Hungarian Compromise of 1867 reorganized the Habsburg monarchy as a dualistic real union. The Croatian-Hungarian Settlement of 1868 governed Croatia's political status as a territory of Hungary. In 1908, Austria-Hungary annexed Bosnia and Herzegovina. The First World War ended with the disintegration of Austria-Hungary. The Kingdom of Hungary suffered a huge territorial loss. The kingdom of the Serbs, Croatians, and Slovenians was created, and Romania was reorganized, acquiring vast territories. The independent country of Czechoslovakia (the First Czechoslovak Republic) was formed by the unification of the Czech, Slovak, and Carpatho-Ruthenian territories. The Second Polish Republic was established. However, this situation did not last long. The region was gradually reorganized through a series of decisions taken by the great powers (e.g., the Munich Agreement, the First and Second Vienna Awards, and the Molotov-Ribbentrop Pact). After the Second World War, the political conditions and state borders changed again, and the region's countries became part of the Soviet bloc. Between 1949 and 1991, economic cooperation between the socialist countries took place within the framework of the Council for Mutual Economic Assistance (Comecon). In 1955, the Warsaw Pact established the military organization of countries belonging to the Soviet sphere of interest, which operated until 1991. Based on this treaty, Soviet military troops could be stationed in socialist countries. The fall of communism and the disintegration of the Soviet Union brought about a significant change in the region's political and international relations. Most European private law systems today are codified, but there are also noncodified systems (in the common law system, for example, private law is not codified). The seventh chapter of our textbook, written by Emőd Veress, provides us with a history and comparative analysis of private law codifications in the East Central European region. The region's private law codes were mostly influenced by the French (Napoleonic) Civil Code of 1804, the ABGB of 1811, and the German Bürgerliches Gesetzbuch (BGB), which entered into force in 1900. For example, the Serbian civil code of 1844 was strongly influenced by both the Austrian and French codes, the Romanian civil code of 1864 was inspired primarily by the French code, and in the case of the Polish code of 1964, the effects of the German, Austrian, and French codes can all be demonstrated. The intensity of model following varied for each code. Our region is generally characterized by a dualistic solution, i.e., civil law in the narrower sense and commercial law are regulated by separate codes. However, there are also examples of the application of the monistic principle; the new Romanian civil code (Act 287 of 2009) and the new Hungarian civil code (Act V of 2013) switched to monistic regulation, breaking with the dualistic system (the latter code discusses the substantive rules of commercial companies among legal persons). The last chapter of our book, authored by Ewa Kozerska, analyzes the legal situation of the churches in the period between 1945 and 1989 in relation to Czechoslovakia, the German Democratic Republic, Hungary, and Poland. Although the socialist constitutions declared freedom of religion, in reality, the holders of political power did everything to spread the atheistic worldview and suppress religious life. Church properties were confiscated, church schools were nationalized, religious education was abolished, and monastic orders and religious associations were dissolved. The activities of the churches were significantly restricted and placed under strict state supervision. The holding of clerical positions (mainly episcopal appointments) was subject to a state license. Catholic priests were forced to join movements loyal to political power, the papal envoys were expelled, and contact with the Vatican was hindered. Resisting priests and monks were imprisoned, and show trials were often held for political purposes. Secret service agents prepared detailed reports on all manifestations of religious life. Churchgoers suffered many disadvantages. Religious life thus took place in an atmosphere of constant fear. It is no coincidence that Karol Wojtiła emphasized these words in his first Mass after his election as Pope: "Do not be afraid." The activities of the Holy Pope, who showed direction and gave spiritual strength, contributed significantly to the political changes of 1989. This textbook is the fruit of successful international cooperation. The creator and director of this joint work was my dear colleague, head of the Ferenc Mádl Institute of Comparative Law, János Ede Szilágyi, to whom I am very grateful for his principled guidance. I received useful advice from Emőd Veress in defining specific topics, for which I am also grateful. Of course, I am very grateful to the authors of the chapters for participating in our joint project and doing careful, high-quality work. Thanks are also due to the reviewers for their helpful comments. Historical maps are very important for studying legal history. The fourteen maps in our textbook are the work of Zsombor Bartos-Elekes, who, as a cartographer, also commented on the maps and compiled a list of the names of the cities on them. Special thanks to him for his precise work. We hope that our textbook will enrich many students with knowledge. It is our sincere hope that by studying the history of law, our readers become better suited to practice their chosen profession.

This policy note aims at setting a methodological framework for the study of legal transplants in taxation and more specifically to the use of the comparative legal theories of legal transplants, legal (tax) systems and legal (tax) culture to study the implementation of the Base Erosion and Profit Shifting (BEPS) 4 Minimum Standards. Attention will be given to the following questions who is participating as donor or recipient and why? how the tax systems and tax culture (actors) influence the process? and what are the rules that will be implemented? By using comparative legal theories, this policy note allows to explain the reasons why countries decided to implement the BEPS 4 Minimum Standards. These reasons are for instance, prestige, political incentives, and chance and necessity. Furthermore, the study of the differences in tax systems and tax culture can allow policy makers in international organizations and countries to understand the transplantation process and the development of tax rules implementing the BEPS 4 Minimum Standards. The theory of tax systems will take into account the differences between civil law, common law and mixed legal systems. The theory of tax culture will take into account the behaviour, values and attitudes of the relevant actors (the courts with tax competence, tax law-makers, taxpayers, tax administration, business associations, tax advisors, scholars, and civil society Non-Governmental Organization (NGOs.). In order to illustrate these differences, this policy note has addressed the implementation of the Principal Purpose Test in the countries participating in the BEPS Inclusive Framework. Legal transplants, tax culture, BEPS, global tax governance, principal purpose test, international taxation.

PurposePrecontractual liability may be imposed when a party acts in bad faith to damage the other party, when a party negotiates in order to discover business secrets with no intention of reaching a final agreement, or when a party to a non‐binding letter of intent terminates negotiations during a later phase of negotiations without legitimate reason. The purpose of this article is to clarify the concept of the duty to negotiate in good faith, either for Civil Law or Common Law system practitioners.Design/methodology/approachThe paper describes the concept of good faith and fair dealing and its effects on the negotiation process. After establishing this description, we will analyze the differences in the interpretation and the application of the concept of good faith in the pre‐contractual procedure. The article explores the Civil Law approach for this matter, followed by the Common Law approach. In order to illustrate the Common Law System, we will focus on English and American Law, while we will look mainly at German, Brazilian and French Law to illustrate the Civil Law. In the conclusion, we will compare the approaches of the two systems.FindingsThe obligation of good faith in negotiation is found practically in all civil law system countries and generally provides a remedy for a wrongful conduct produced by a bad faith act. However, there is no general rule in Common Law requiring the parties to negotiate in good faith. We are in favor of applying a more expansive view of good faith obligations for international business transactions involving two or more different countries from these two different legal systems (civil law and common law), so as to apply them to the duty to negotiate arising from preliminary agreements and negotiations.Although there is no general rule about pre‐contractual liability in the common law system, we strongly believe that the existing body of case law and statutes may punish a party which engages in unfair conduct at the pre‐contract stage if the parties had signed a letter of intent or a memorandum of understanding, requiring them expressly and clearly to “act in good faith” and/or “to use their best efforts to reach an agreement”.Originality/valueThis article has discussed a relatively unexplored area related to the obligation of good faith in negotiation either for civil law and common law's practitioners. Our research has highlighted the complexity of this matter between these two legal systems, and has helped to the identification of the concept of good faith in a relation between two or more parties.

This study aims to explain translocation of laws that cause mixed legal system. Indonesian law is therefore an intriguing mixed legal system, blending civilian rules fashioned, in style, structure and content, with the common law, the law of islam and folk law. Both civil law and common law system, islamic legal system and folk law make valuable constributions to mixed legal system. The research was conducted by using comparative law method.

The Formative Stages of Common Law in South Sudan: The Ensuing Consequences for the Judiciary