Within the formerly marginalized perspectives of postcolonial discourses, criticism of Anglo-American political, economic or cultural dominance is an all-too-familiar refrain, if not the fountainhead and mainstay of the whole. But concern that its common law might unintentionally exert an imperialist effect upon civil, Byzantine, indigenous or other legal traditions appears to be comparatively recent, perhaps because of the abiding Marxian confusion concerning the significance of the constitutional order. Farran, Örücü and Donlan's Study of Mixed Legal Systems provides interesting starting point from which to understand the processes of such potent but understated neocolonialism.
The purpose of this book is to survey what the authors describe as ‘mixed legal systems’, these being ‘jurisdictions that contain significant and explicitly segregated, but non-overlapping elements of different legal traditions’ (242). Nine chapters illustrate such mixtures, and are divided into three forms. An entrenched system, firstly, is stable in its constituent parts, whereas endangered legal systems, such as are found in Scotland, Guyana, or the Philippines, are undergoing some change of identity, incurring ‘the potential loss of something viewed as valuable’ (5). The blended systems of Cyprus or Mauritius appear to connote different legal traditions potentially applying to the same population in multiple languages, the former for example fusing Greek, Greek Cypriot, Turkish, and English jurisprudence. This panorama does not feed into any unifying thesis, and the individual contributions themselves often conclude where they began, by, for example, asking rhetorically where the Anglo-Norman contestation in Jersey or the ‘bijuralism’ (Morin 166) of Quebec may be headed. Yet self-justification has proceeded too far in the social sciences, and readers will appreciate on their own terms the involving narratives and interesting details. Where else but from Glenn's chapter will one learn that the Privy Council still serves as the highest tribunal for Saint Lucia and for most other Commonwealth dominions in the Caribbean? (I personally would have thought, following Bagehot and Dicey, that it must be either the House of Lords or else its derivative Supreme Court [2005–].) Or that the British takeover of Seychelles from the French in 1814 has altered the entire course of its legal history (Twomey)?
And yet this colourful comparative tour, upon further inspection, may be bought at a certain price. Most if not all examples of ‘endangered’ legal systems in this study are threatened by the common law. In Scotland, we are informed, law graduates of Edinburgh, Aberdeen, and Glasgow are neglecting the study of the Scottish legal system, Scottish law texts are no longer frequently published, and Scottish law firms are increasingly merging with English firms; whilst in Guyana, common law has interrupted the continuation of Roman-Dutch jurisprudence traditions derived from Hugo Grotius, complicating the legitimate claims of the Amerindian indigenous. Anti Anglo-Saxon hostility, whilst appreciable throughout, is openly declared in Pacifico Agabin's chapter on the Philippines, a polemic against American colonization. He has the honesty to raise the red flag in defence of his native land: ‘More than the rule of law and the doctrine of judicial review, America is imposing on the civilized world what many refer to as “cultural imperialism”. Aside from the organization and style of its legal order and its basic legal attitudes and notions, the US is creating a globalized society in its own image—a business civilization based on liberal democratic capitalism’ (83).
This is not by any means the first blast of the trumpet. The centenary of Lenin's Imperialism: The Highest Stage of Capitalism (1916) is approaching, a polemic that shook the world and passed into academe through Immanuel Wallerstein's The Modern World-System (1974) and, to a lesser degree, through the works of Barrington Moore, Theda Skocpol and Eric R Wolf. Whilst the reader may or may not be in agreement with this work's anti-imperialist programme, he or she will probably take note of the overall lack of rigour. Most seriously, no obvious example of an ‘entrenched’ legal system is adduced, even though promised in the introduction and in its title. Fresh concepts also pop up here and there, with the legal system of Guyana ‘muddled’ as opposed to simply ‘mixed.’ More important, however, is the omission of the very real, enduring, and comprehensive threat to the supremacy of the common law within Britain itself from the European Union. As prophesied by Enoch Powell, Tony Benn, and other Eurosceptics, British accession to the Common Market in 1973 has resulted in a loss of national sovereignty and subjection to a foreign jurisprudence without parallel in history. The European Commission in Brussels, and the Court of Justice in Luxembourg have for four decades overwhelmed the ancient empire of Sir Edward Coke, Richard Hooker, and William Blackstone with an alternative Christian Democratic jurisprudence that aims, partially at least, to dismantle the nation state and to establish social market economy (soziale Marktwirtschaft). Every legal system, it would seem, is therefore mixed and endangered as never before.
