Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120120003&lang=pt vol. 15 num. 3 lang. pt <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000300001&lng=pt&nrm=iso&tlng=pt <![CDATA[<b>Mixed and mixing systems worldwide</b>: <b>a preface</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000300002&lng=pt&nrm=iso&tlng=pt <![CDATA[<b>The enigmatic but unique nature of the Israeli legal system</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000300003&lng=pt&nrm=iso&tlng=pt The Israeli legal system is unique in that it straddles the two otherwise opposing worlds of tradition and innovation. This creates an enigma for the comparatist, making the exploration of this system an onerous and challenging task. The author wishes to maintain that the system in question is highly innovative and ascribes this quality to the proactive character of the Israeli Supreme Court, whose activism has had a major impact on the character of the domestic system as a whole. While the author explores the reasons why this has been the case, one of his main concerns in this paper will be to examine the innovative character of the Israeli Supreme Court per se, in comparison with equivalent courts in other parts of the world. In addition the author will seek to establish inter alia the character of the Israeli legal system by focusing on the three different elements that co-exist in the Israeli socio-legal structure (the Jewish element vis-à-vis the Arab element; the Liberal element vis-à-vis the Orthodox element within the Jewish community; and the Civilian element vis-à-vis the Common law element). The author wishes to posit that the amalgamation of different legal and cultural traditions in Israel created a sui generis state of affairs for the legal system as a whole. This results in an overall systemic-methodological amalgamation which does not occur elsewhere in the world. The article concludes that the enigmatic and innovative characteristics of the Israeli legal system derive from the novel way in which the legal mix has occurred in this system (as opposed to the ingredients of the elements in the mix). In this respect, Israel may have contributed much to the reinvigoration of the modern comparative law agenda, and it may continue to do so in the future, as the system is not one of legal stasis (a mixed system) but one of legal kinesis (a mixing system). <![CDATA[<b>What happens when the judiciary switches roles with the legislator? An innovative Israeli version of a mixed jurisdiction</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000300004&lng=pt&nrm=iso&tlng=pt Civil Law codices are analytic, abstract and removed from the specific influence of particular cases. When rules are codified In Common Law systems they reflect a collection of rulings and not a collection of analytic principles. These differences stem from the nature and the motivations of the legislative enterprise. Civil-continental legislation originates in a legislative initiative "from above". It is driven by the aspiration for legal harmony and completeness, and was originally formulated by academics. Legislation in the common-law countries results from a "bottom up" effect in which reality dictates the nature of the developing rules, step by step. Civil law systems like Common Law systems accept the supremacy of the statutory law over judge-made law. Yet when the judiciary has the authority or the power to influence the legislative agenda there is a veritable role switch. In a manner resembling continental-style legislation, the court reviewing existing legislation determines an abstract principle, usually in reliance on a particular constitutional text, and it is the legislature that is required to distill the principles into specific legislative norms, a function normally fulfilled by the common law court. The question forming the basis of this paper is the nature of the legislative process and the legislation produced by this kind of relationship. The paper addresses this question through the narrow prism of a detailed examination of a particular Israeli test case in which the Israeli Supreme Court handed down a ruling on a fundamental principle but on its own initiative delegated to the legislature the task of implementing it and providing a specific legislative enactment of this principle, on the basis of which the Court would then rule on the concrete case. The result in this particular case was that the traditional roles of the respective branches were reversed. The practical result of the move to delegate the implementation of a far-reaching and fundamental ruling to the legislature was a subversion of the fundamental ruling and delayed justice for the parties who sought a resolution of the matter. The paper claims that this mechanism leads to the creation of a new variety of a "mixed-system". The judiciary abandoned its primary obligation, namely to serve as an instance for resolving disputes, while the legislature became an executor of judicially enunciated principles. The law thus enacted resembles, in its detailed and complex language, a common law text while the principle formulated in the judgment of the court resembles a section of an analytical "civil law" statute. When the motivation for legislation stems from the court's directives, rather than the governmental or legislative interests, the legislature or the executive branch has an interest in thwarting the court's intention through the use of various tactics readily at its disposal. This process also affects the vague and detailed formulation of the legislation, which has a character rather different from the abstract nature of civil law legislation. The lesson that this episode teach us, which the court itself internalized, is that a court cannot really dictate a legislative agenda and that it should instead focus on its designated role - the resolving of concrete disputes. <![CDATA[<b>The mélange of innovation and tradition in Maltese law</b>: <b>the essence of the Maltese mix?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000300005&lng=pt&nrm=iso&tlng=pt Aim of this paper is to provide valuable insights into the Maltese legal system with a special focus on private law. The assumption is that this legal system is the by-product of the "mixing" of innovation and tradition, resulting from the interaction of English law and continental law. A major role in the development of the system is played by courts. Some examples (moral damages and pre-contractual liability) are considered which highlight the importance of the function displayed by Maltese judges. <![CDATA[<b>Innovation in a hybrid system</b>: <b>the example of Nepal</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000300006&lng=pt&nrm=iso&tlng=pt The Nepali legal tradition is a legal hybrid in many regards. Nepal was not colonised by a Western state, and the Hindu legal tradition therefore dominated all areas of law until the middle of the 20th century. Since the 1950s there has been a strong influence of Indian common law. It is probably for this reason that comparative classifications that include Nepal see the legal system as a mixture of common law and customary law. However, other mixtures mark the Nepali legal tradition. French law inspired the ruler in the 19th century, and that influence can still be found in the formal law. In addition, the plurality of Nepalese society made it necessary to provide space for different customary regimes to coexist with the formal Hindu law. When it comes to innovations within the legal system, including international law, the different ingredients interact. In family-related matters, the case-law of the Nepali Supreme Court illustrates the confrontation between international legal standards and the traditional rules. The Supreme Court has referred to the culturally conditioned discrimination against women and called for a thorough (political) analysis in order to eliminate discrimination without a radical change of culture. In the area of discrimination against homo- and transsexuals the Supreme Court took a more innovative approach. It remains to be seen, however, if such a change is effective beyond the courtroom. In the area of private financial compensation for wrongs, the formal (written) Nepali law does not have a general concept of tort. Compensation is generally integrated within the ambit of criminal law. Field research indicates that it would be possible to resort to existing customary principles of compensation rather than to the relatively complex common law of torts favoured by some Nepali scholars. However, this approach might not be without difficulty, as it might imply admitting the "superiority" of the customary practices of ethnic groups of lower standing in society. The example of Nepal shows that innovation in a hybrid system is often marked by the difficulty of - at least apparently - contradictory elements and layers of the legal system. There might be a tendency towards choosing the dominant or the most easily accessible solution. This paper suggests that the hybrid nature of the legal system offers opportunities that could be taken in order to achieve effective change and appropriate solutions. <![CDATA[<b>The characteristics of an abstract system for the transfer of property in South African law as distinguished from a causal system</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000300007&lng=pt&nrm=iso&tlng=pt Two divergent systems are usually differentiated between when it comes to the way in which real rights are transferred from one person to another, namely abstract and causal systems. In this article the features of each system, the respect in which they differ from each other, and the practical implications of the distinction are established. It appears that in a causal system real rights are transferred by conclusion of the obligatory agreement, which should be valid and enforceable. The mutual intention to transfer and to receive real rights is not construed as an independent real agreement as it is contained in the obligatory agreement. In a causal system the transferor finds himself in a favourable position in relation to other parties while bona fide third parties undoubtedly get the worst of the deal since they have no protection against the disadvantageous consequences of delivery owing to a void obligation. In an abstract system the obligatory agreement is not sufficient for the transfer of real rights, the thing should also be delivered and there should be a valid real agreement which consists merely of the mutual intention to transfer and to receive real rights. The real agreement is a characteristic of an abstract system which distinguishes it from a causal system. Compared with the position of those in the causal system, the transferee and third parties find themselves in a favourable position vis-à-vis the transferor. In a causal system the concept iusta causa refers to a valid and enforceable obligatory agreement or other juridical fact which obliges the transferee to deliver the thing. In an abstract system it serves no purpose to describe the causa with reference to the obligatory agreement, since it is not a substantive law requirement for the transfer of real rights. The causa concept refers rather to the mutual intention to transfer and to receive real rights, which is nothing less than the real agreement. Since the causa is contained in the real agreement it is no longer of any use in an abstract system and should be abandoned. The Dutch system displays the characteristics of an abstract system in that a separate act of delivery should exist and a valid real agreement is a requirement for the transfer of real rights. On the other hand it also displays characteristics of a causal system, since a valid obligatory agreement is a requirement for the transfer of real rights. <![CDATA[<b>The methodology used to interpret customary land tenure</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000300008&lng=pt&nrm=iso&tlng=pt Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.