Concept of a Hybrid Legal System
The traditional concept of a ‘Hybrid Legal System’ is one in which more than one legal system co-exist. In other words, if a legal system is called a ‘Hybrid Legal System’, it would have common law system as well as civil law system or socialist legal system, customary legal system or religious system.
Systems around the world certainly present diverse mixes – of religious law, indigenous custom, merchant law, canonical law, Roman law and judge made law (precedents).
For example, the legal systems of the countries of Seychelles, South Africa, Louisiana (in the U.S.), Philippines, Greece, Quebec in Canada, Puerto Rico, Scotland and India follow ‘Hybrid Legal System’ as they have more than one main legal system in their overall legal system.
International legal system can also be termed as ‘Hybrid Legal System’ as you would find common law as well as civil law principles in it.
We can appreciate that in places like Asia, Africa, and other Islamic countries, powerful elements of customary law still remain and are in evidence in varying degrees. Sometimes, you may also find a term ‘Mixed Legal System’, which is also used to denote ‘Hybrid Legal System’ only.
You might wonder what amount of ratio would be required to make a legal system hybrid one, as the term ‘hybrid’ denotes mixing up of two or more different species or genetic material. In law also, you can apply this, but the actual quantity cannot be prescribed with absolute detail.
For example, take the States of Texas, California, and Louisiana in the United States. Texas and California have ‘some’ civil law in their legal systems, whereas in Louisiana, the amount of civil law is ‘more’.
The salient features of a ‘Hybrid Legal System’ are :
(a) co-existence of more than one legal system;
(b) ratio of the mixture of different legal system can not be predetermined; and
(c) it preserves the native legal system
Hybrid Legal System in India
In India, if you observe closely you would find that we follow mainly common law because we have the system of judicial precedents and public writs. But is it not also a fact that we have several commissions of Inquiry, administrative tribunals (traits of civil law), customary law, personal law of Hindus, Muslims, Jews, Parsis, and socialist law in Directive Principles of State Policy given in our Constitution?
At the genesis of the ‘Hybrid Legal System’ are the claims of a culture to preserve its own language, religion, historical experience and, not least, its laws and customs. Native legal system is hoped to be preserved with the adoption of this approach, in doing which the political superior has an important role to play. We may consider the costs and benefits of this approach.
Whosoever wins in this political show of strength between a group which is willing to protect its native legal system and another which is trying to maintain status quo, would influence the making of the hybrid system.
For example, the French Canadians of Quebec did not allow the common law to prevail over this State of Canada and therefore even within Canada, you would find civil law system. India, Pakistan, Bangladesh have inherited a common law legacy from their colonial regimes.
However, the developments in India, such as the establishment of Gram Nyayalayas (a native legal system now recognized by law), ‘Lok Adalat’ (native practice being followed in Gujarat for a long time, and which is now recognized by law), administrative tribunals, Matrimonial Courts for different religions etc. have established the effectiveness and acceptance of native and civil law systems.
Acknowledgement : This article is adapted from Swayam – NIOS course material