The Mediterranean Hybridity Project

Crossing the Boundaries of Law and Culture

in European Journal of Comparative Law and Governance
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The extraordinary legal and normative hybridity (“hybridity”) of the Mediterranean region was produced in a complex history of conquest, colonisation, and social and legal diffusion across shifting and porous boundaries. Its various legal traditions, past and present, include the Anglo-British, canonical, continental, Islamic, Ottoman, Roman, socialist, and Talmudic traditions as well as various other customary and trans-territorial traditions. This plurality of official or state laws is complemented and further complicated by an equally diverse and dynamic normative pluralism. Studies of hybridity have, however, been isolated, sporadic, and too often framed within narrow jurisdictional and disciplinary constraints. This paper briefly outlines an emerging research project, the Mediterranean Hybridity Project, on the legalities, both state laws and other meaningful normative orders, in the Mediterranean. Rooted in established comparative methods and employing the conceptual vocabulary of the social sciences, a questionnaire will guide the production of reports that attempt to capture the hybridity of the jurisdictions/locales studied. It is our hope that the published reports and their analysis will generate more accurate, useful, and accessible accounts of Mediterranean hybridity than existing taxonomies, models, and methods. Developed by the Juris Diversitas group, the Project will build on a ‘new rapproachement’ between comparatists and social scientists. In particular, it will draw on the analysis of (i) the legal hybridity of, “mixed legal systems,” where diverse state laws emerge from different legal traditions and (ii) the normative hybridity of so-called, “legal,” or, “normative pluralism.” The former acknowledges a legal world of great variety and complexity; the latter posits an essential dialectic between state law and other meaningful, non-state normative orders. Recent events in Tunisia, Egypt, Libya and beyond suggest how useful greater knowledge of Mediterranean hybridity might be.

The Mediterranean Hybridity Project

Crossing the Boundaries of Law and Culture

in European Journal of Comparative Law and Governance

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References

23

Donlansupra note 11. See Roscoe Pound Law in Books and Law in Action 44 Am. L. Rev. 12 (1910); Rodolfo Sacco Legal Formants: A Dynamic Approach to Comparative Law (1991) 39 Am. J. Comp. L. 1 and 343; Hanne Petersen & Henrik Zahle Legal Polycentricity: Consequences of Pluralism in Law (1995) and Ari Hirovonen Polycentricity: The Multiple Scenes of Law (1998).

74

Palmer (2001)supra note 6 at 17 and Palmer (2006) supra note 73 at 468.

80

Reidsupra note 73 at 7 n.1 (2003). See also George L. Gretton & Kenneth G.C. Reid The Civil Law Tradition: Some Thoughts from North of the Tweed 11 Jersey & Guernsey L. Rev. (2007) available atwww.jerseylaw.je/Publications/jerseylawreview/Oct07/JLR0710_Gretton.aspx (last visited Nov. 9 2011).

82

Palmer (2001)supra note 6 at 4. See also Seán Patrick Donlan A Thing Without Cohesion of Parts: The Professional and Pedagogical Contribution of Mixed Jurisdictions 38 Irish Jurist 383 (2003) (reviewing Vernon Valentine Palmer Mixed Jurisdictions Worldwide: The Third Legal Family (2001) and Jan Smits The Contribution of Mixed Legal Systems to European Private Law (2002)).

86

Palmer (2001)supra note 6 at 57. While property law is largely unaffected Anglo-American influence on obligations especially tort is more significant. Succession law is somewhat resistant though pressure for freedom of testation has altered the laws of some jurisdictions. For practical reasons Anglo-American commercial laws were also adopted with little resistance. Id. 53–59 66–76 and Palmer (2006) supra note 73 at 471–2 474. See Palmer’s detailed synopsis in Palmer (2009) supra note 73 at 343–4.

87

Palmer (2001)supra note 6 at 45. See id. 44–46. See also Palmer (2006) supra note 73 at 471.

90

Palmer (2001)supra note 6 at 15–16.

94

Örücüsupra note 46 at 335. The title—Mixed and Mixing Systems—underscores the dynamic on-going nature of hybridity.

96

Örücüsupra note 69 at 177. See also Sue Farran Scots Law: A System in Search of a Family 61 N. Ireland Legal Q. 311 (2010). On the rise of modern comparative taxonomy see Mariana Pargendler The Rise and Decline of Legal Families 60 Am. J. Comp. L. (2012).

99

Örücüsupra note 95 at 67. As noted Örücü has also written about the diffusion of law.

102

Poundsupra note 23.

103

Saccosupra note 23.

104

Petersen & Zahlesupra note 23 and Hirovonen supra note 23.

114

Merrysupra note 37 at 872 et seq. (This has sometimes been linked to research on ‘social norms’ linked both to political science and to the “law and economics” movement.); see also William K. Jones A Theory of Social Norms 1994 U. Ill. L. Rev. 545 (1994) and Eric A. Posner Law and Social Norms (2000).

120

De Sousa Santos (1987)supra note 119 at 298.

122

Palmer (2009)supra note 73 at 333. “Pluralism” he writes “has yet to present a taxonomy that differentiates and arranges the hybrids into useful groupings.” Id. 335. Kenny Anthony has also noted that “in a mixed system unlike a plural system there is just one set of rules for every situation:” The Identification and Classification of Mixed Systems of Law in Commonwealth Caribbean Legal Studies: a Volume of Essays to Commemorate the 21st Anniversary of the Faculty of Law of the University of the West Indies 194 (Gilbert Kodilinye & P.K. Menon eds. 1992); The Viability of the Civilist Tradition in St Lucia: A Tentative Appraisal in Essays on the Civil Codes of Québec and St. Lucia (Raymond Landry & Ernest Caparros eds. 1985).

123

Palmer (2010)supra note 73 at 48. “But I predict that if this task is one day accomplished it will be done by a mixed jurisdiction jurist for he or she knows best that there is a need and knows best the means to achieve the goal.” Id. Cf. Örücü supra note 100 at 7 (including Örücü’s desire for a “workable grid”).

148

Griffithssupra note 107 at 39.

151

Twiningsupra note 56 at 71. This acknowledgement “that normative and legal orders can co-exist in the same time-space context” he notes “greatly complicates the tasks of comparative law.” Id.

154

Strosssupra note 16 at 266–267.

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