Hybrid Legal Family
The term „mixed” that we have chosen rather than other terms such as „hybrid” or „composite” should not be interpreted restrictively, as some authors have done. This category therefore includes political entities in which two or more systems apply cumulatively or interactively, but also entities in which the systems are juxtaposed due to more or less clearly defined fields of application.  In addition to the important and Eurocentric main division in civil law and common law and thus the classification of mixed legal systems as the third group, other legal families or traditions such as Talmudic, Islamic, Hindu, Asian, Nordic and Eastern are also recognized. South Africa has a „hybrid” or „mixed” legal system formed by the interweaving of a number of different legal traditions: a civil law system inherited from the Dutch, a customary law system inherited from the British, and a customary law system inherited from indigenous Africans (often called African customary law, of which there are many variations depending on tribal origin). These traditions had a complex relationship, with English influence most clearly expressed in procedural aspects of the legal system and jurisprudential methods, and Romano-Dutch influence most clearly expressed in its substantive private law.  As a general rule, South Africa follows English law in matters of criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in South African contract law, tort law, personal law, substantive law, family law, etc. With the entry into force of the interim constitution in 1994 and its replacement in 1997, the final constitution, another component was added to this fabric.  The United States is the most striking example of a nation heavily frequented by young lawyers from other jurisdictions. In England, contrary to this general trend, Cambridge Law School has ceased to teach Scottish law, as noted by Tony Weir in his 1998 article „Divergent legal systems in a single member state” in the Zeitschrift für Europäisches Privatrecht at page 572.
With the failure of indigenous peoples, as well as successive Dutch and British colonial governments, to grasp the laws of pre-colonial southern Africa, there is a lack of information about laws prior to the colonization of South Africa. [ref. needed] However, the current South African legal system has recognised the importance of these courts and they have been integrated into the overall legal system, where they can function as district/municipal courts. [ref. needed] There are three ways to „arise” from a mixed legal system. The concept of mixed legal systems is essentially a modern idea that is increasingly shaping discussions about the nature of the world`s legal systems. Fifty years ago, mixed systems were treated as legal aberrations and barely discussed. Emphasis was placed on a consistent order of large systems, and no place was found for composites and hybrids in taxonomies. However, under the influence of studies on „mixed jurisdictions” and legal pluralism, there is a growing awareness that mixed systems, whether narrowly or expansively defined, are a widespread and recurring reality. They have occurred too often and lasted too long to be considered accidents and anomalies.
A recent study states that ninety-one jurisdictions can be classified as „civil law” and forty-two as „common law”. However, a higher number – ninety-four – are listed as „mixed” systems. The study classified these mixtures into ten subcategories, including „common law and Muslim law”, „civil law and common law”, „Muslim and customary law” and „common law and civil law”. It is therefore evident that all the traditions discussed in the previous chapters of this companion – Western, East Asian, Jewish, Islamic and sub-Saharan – provided the legal material from which this large number of hybrids was created. (The legal systems listed are listed in the Annex to this chapter.)  Borrowing in mixed jurisdictions is primarily from common law sources. Lessons learned from civil law are rare exceptions. Interestingly, borrowing never takes place between individual hybrid systems.  Derived from the Latin name „hybrida”, meaning „cross”. Mixed legal systems such as those in Scotland and South Africa differ from the classical common law and civil law systems in a combination of aspects of both traditional families. This is why they are also called „hybrid systems” or „pluralistic jurisdictions” and embody a third legal family. For example, according to Du Plessis and Palmer, the mere existence of both customary and civil aspects is not enough. They called for sufficient emphasis on these two elements to speak of a „mixed legal system in the strict sense,” while the aspect of bilingualism, that is, the appearance of more than one language, is perceived in a legal system as a characteristic rather than a criterion. 3 Why mixed legal systems could merge into pure civil law or common law systems 5 Potential of mixed legal systems as creative sources of their own distinctive type of rules The most common is the birth of a mixed legal system as a product of failed colonialism, in which a culture has been imposed by a colonialist power.
But an Aboriginal culture persisted to some extent. Many African countries are examples of this. However, there is a significant difference of opinion on the actual meaning and components of a mixed system. Scholars of the „mixed jurisdiction” tradition, following in the footsteps of early British comparatists (see section 17.2 below), tend to limit their scope to a single type of hybrid where the most comprehensive research has been conducted – the common law and civil law mixtures.