Article by Stephen Goldstein
This Article analyzes what can be learned from mixed jurisdictions concerning the nature of procedural law and the relationship between procedural and substantive law. The most striking fact about mixed jurisdictions is that, with the exception of Scotland, the prevailing procedural law is common law despite the fact that the substantive private law in these jurisdictions is primarily civil law.
This situation raises two basic questions. Why the hegemony of common law? And, what does this situation tell us about the relationship between procedural and substantive law?
As to the first question, the Article concludes that the hegemony of common law procedure is primarily the result of the emotional, almost religious, attachment of the adherents of common law procedure to their system. As to the second question, the Article concludes that mixed jurisdictions demonstrate that procedural law is sufficiently independent of substantive law so that, in general, different systems of procedural law may work relatively well with different systems of substantive law and, in particular, that common law procedure may operate reasonably well in a system of substantive civil law.
Finally, the Article concludes that the coexistence of common law procedure and substantive civil law in mixed jurisdictions does not seem to have affected the procedural law of such systems. In addition, while there are some examples of the effect of common law procedure on the civilian substantive law of some mixed jurisdictions, they are relatively few. However, it may very well be that there is a greater, indirect influence of common law procedure on civilian substantive law in the sense that procedure gives rise to a judicial style which, in turn, engenders habits of legal thought.
About the Author
Stephen Goldstein. Edward S. Silver Professor of Procedural Law, The Hebrew University of Jerusalem.
Citation
78 Tul. L. Rev. 291 (2003)