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Mixed Jurisdictions and Convergence: Scotland

Published online by Cambridge University Press:  28 February 2019

Hector L MacQueen
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Extract

There is an independent Scottish legal system today because, until the Union of the English and Scottish Crowns in 1603 and the Union of the Parliaments of the two countries in 1707, Scotland was an independent sovereign state. When King James VI of Scotland became James I of England and Great Britain in 1603, there was considerable interest in the possibility of establishing a single legal system for the newly united kingdoms, while during the Cromwellian interlude of the 1650s the possibility moved some way towards actuality. But the 1707 Act of Union showed a recognition that the establishment of a single legal system and body of law for the whole of the United Kingdom was not really a practical proposition, in articles which remain the formal basis for the continuing existence and independence of the Scottish law and legal system. Article XVIII provided for the continuation of Scots law after the Union, excepting only the ‘Laws concerning Regulation of Trade, Customs and … Excises', which were to ‘be the same in Scotland, from and after the Union, as in England.’ Change to Scots law was allowed under the Article, but in matters of ‘private right’ such change had to be for the ‘evident utility’ of the Scottish people. Only in matters of ‘public right’ might the aim be simply to make the law the same throughout the United Kingdom. Article XIX laid down that the principal Scottish courts, the Court of Session and the High Court of Justiciary, should ‘remain in all time coming’ as they were then constituted, and further provided that Scottish cases were not to be dealt with by the English courts ‘in Westminster-hall’ (which likewise continued to exist post-Union).

Type
Articles
Information
International Journal of Legal Information , Volume 29 , Issue 2 , Summer 2001 , pp. 309 - 322
Copyright
Copyright © 2001 by the International Association of Law Libraries 

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References

1 MacQueen, H.L., Common Law and Feudal Society in medieval Scotland (Edinburgh, 1993).Google Scholar

2 For a more detailed survey with literature references see MacQueen, H.L., “Mixture or muddle? Teaching and research in Scottish legal history,” (1997) 5 Zeitschrift für Europäisches Privatrecht 369, responding to Whitty, N.R., “The Civilian tradition and debates on Scots law,” 1996 Tydskrif vir die Suid-Afrikaanse Reg 227 and 442; see further W.D.H. Sellar, “Scots law: mixed from the very beginning? A tale of two receptions,” (2000) 4 Edinburgh Law Review 3. For a recent overview on mixed legal systems generally, written from a Quebec perspective, and arguing that the Lex mercatoria should be included in the category, see Tetley, W., “Mixed jurisdictions: Common Law vs Civil Law (codified and uncodified),” (1999) 4 Uniform Law Review (ns) 591.Google Scholar

3 Lévy-Ullmann, H. (trans F.P. Walton), “The law of Scotland,” (1925) 37 Juridical Review, at p. 390.Google Scholar

4 Zweigert, K. and Kötz, H., Introduction to Comparative Law, trans T. Weir, 3rd edn (Oxford, 1998), p. 204. The statement also appeared in the first and second editions.Google Scholar

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6 Plessis, J. du, “The promises and pitfalls of mixed legal systems: the South African and Scottish experiences,” (1998) 3 Stellenbosch Law Review 338 at p. 343.Google Scholar

7 Örücü, (above n. 6), p. 351.Google Scholar

8 But see David, H., Introduction a l'étude du droit écossais (Paris, 1972) and Weber, H., Einführung in das schottische Recht (Darmstadt, 1978). Other non-Scots to write extensively about Scots law include Klaus Luig (Cologne) and Peter Birks (Oxford). Christian von Bar's The Common European Law of Torts (Oxford, 1998) makes frequent reference to Scots law. Recently Reinhard Zimmermann (Regensburg) and a number of South African scholars have begun to take a comparative interest in Scots law: see the forthcoming two-volume History of Private Law in Scotland, edd Reid, K.G.C. and Zimmermann, R., to be published by Oxford University Press.Google Scholar

9 Blackie, J.W.G. and Whitty, N.R., “Scots law and the new ius commune,” in (ed), H.L. MacQueen, Scots Law into the 21st Century (Edinburgh, 1996); MacQueen, H.L., “Remedies for breach of contract: the future development of Scots law in its European and international context,” (1997) 1 Edinburgh Law Review 200.Google Scholar

10 See most recently Evans-Jones, R., “Receptions of law, mixed legal systems and the myth of the genius of Scots private law,” (1998) 114 Law Quarterly Review (LQR) 228–249. Compare, however, Weir, T., “Divergent legal systems in a single Member State,” (1998) 6 Zeitschrift für Europäisches Privatrecht 564, emphasizing “how very different, after nearly three centuries of political unification in an unquestionably single market, the laws of Scotland and England continue to be” (at p. 565).Google Scholar

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13 MacQueen, H.L., Scots Law and the Road to the New Ius Commune, Ius Commune Lectures on European Private Law No 1 (Maastricht, 2000); MacQueen, , “Remedies for breach of contract,” above n. 9.Google Scholar

14 The Principles (henceforth PECL) are only partly published. Part I (Performance, Non-performance and Remedies) appeared in 1995 (Lando, O. and (eds), H. Beale, Principles of European Contract Law (Dordrecht, London, Boston, 1995). This Part has now been revised and another Part, dealing with formation, agency, validity, interpretation, contents and effects, has been added (Lando, O and (eds), H Beale, Principles of European Contract Law Parts I and II (Dordrecht, London, Boston, 1999). A final Part is now in preparation.Google Scholar

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18 For discussion of these points see Zimmermann, R. and (eds), D. Visser, Southern Cross: Civil Law and Common Law in South Africa (Cape Town, 1996), Pp. 165–80, 303–34, 342–44. Note that offers are generally revocable in South Africa.Google Scholar

19 The Lando and the Unidroit Principles are drawn upon for comparative purposes in MacQueen, H.L. and Thomson, J.M., Contract Law in Scotland (Edinburgh, 2000). For discussion of the applicability in Scots law of the principles of good faith and pre-contractual liability to be found in PECL, arts 1:201 and 2:301, see MacQueen, H.L., “Good faith in the Scots law of contract: an undisclosed principle?,” in (ed), A.D.M. Forte, Good Faith in Contract and Property (Oxford, 1999).Google Scholar

20 Gloag, W.M., The Law of Contract: a Treatise on the Principles of Contract in the Law of Scotland (Edinburgh, 1914). The second edition of 1929 remained the only book-length treatment of the subject until the late 1970s. Before 1914 there were only treatments within more general works on private law.Google Scholar

21 Tennent v Tennent's Trs (1868) 6 M 840 at 876 per Lord President Inglis. Facility and circumvention is really a sub-category of fraud. Compare with the Inglis list the classical Civilian grounds of invalidity: incapacity, violence, fraud and error. Note also PECL, Arts 4.103–4.108.Google Scholar

22 Gray v Binny (1879) 7 R 332.Google Scholar

23 McBryde, , Pp. 187–203.Google Scholar

24 (1889) 14 App Cas 337; McBryde, Pp. 207–209.Google Scholar

25 See PECL arts 4:103 (mistake), 4:107 (fraud) and 4:108 (threats). Note also the recent introduction in the Luxembourg and new Dutch Civil Codes of a remedy for ‘abuse of circumstances’ (PECL, p. 264).Google Scholar

26 A recent discussion is Rodger, A.F., “Thinking about Scots law,” (1996) 1 Edinburgh Law Review 1.Google Scholar

27 See e.g. Simpson, A.W.B., “Innovation in nineteenth-century contract law,” (1975) 91 Law Quarterly Review 247, and, more generally, (ed), M. Reimann, The Reception of Continental Ideas in the Common Law World 1820–1920 (Berlin, 1993).Google Scholar

28 Requirements of Writing (Scotland) Act 1995. For the background see Report on Requirements of Writing (Scot Law Com No 112, 1988).Google Scholar

29 Contract (Scotland) Act 1997, s 1. For the background see Report on Three Bad Rules in Contract Law (Scot Law Com No 152, 1996).Google Scholar

30 Sale and Supply of Goods Act 1994. For the background see Report on Sale and Supply of Goods (Scot Law Com No 104, 1987).Google Scholar

31 Report on Formation of Contract: Scottish Law and the United Nations Convention on Contracts for the International Sale of Goods (Scot Law Com No 144, 1993).Google Scholar

32 Report on Interpretation in Private Law (Scot Law Com No 160, 1997); Report on Penalty Clauses (Scot Law Com No 171, 1999); Report on Remedies for Breach of Contract (Scot Law Com No 174, 1999).Google Scholar

33 Zweigert and Kötz, p. 204. The same statement appears in the first and second editions.Google Scholar

34 Scotland Act 1998, s 126(4); see further ss 28–30.Google Scholar

35 Scotland Bill, clause 28(9).Google Scholar

36 See in particular Clive, E.M., “A Scottish civil code,” in (ed), H.L. MacQueen, Scots Law into the 21st Century (Edinburgh, 1996). Contrast however in the same volume Forte, A.D.M., “If it ain't broke, don't fix it: on not codifying commercial law.”Google Scholar

37 Law Commissions Act 1965, s 3(1).Google Scholar

38 See the Scottish Law Commission's Sixth Programme of Law Reform (Scot Law Com No 175, 1999), para 1.33, and its Thirty-Fourth Annual Report 1998–99 (Scot Law Com No 179, 2000), paras 2.9–2.11.Google Scholar

39 See Clive, E.M., “Current codification projects in Scotland,” (2000) 4 Edinburgh Law Review 000.Google Scholar

40 Professor Clive would dissent from this view, however.Google Scholar

41 The draft code appears as an appendix to Scottish Law Commission Discussion Paper No 99, Judicial Abolition of the Error of Law Rule and its Aftermath (February 1996). Other versions of the text may also be consulted in (ed), F.D. Rose, Blackstone's Statutes on Contract, Tort and Restitution 1997–8 (London, 1997) Pp. 444–51, or in Clive, E.M., “Restitution and unjustified enrichment,” in A.S. (eds), Hartkamp et al, Towards a European Civil Code, 2nd ed (Dordrecht, London and Boston, 1998), Pp. 383–96.Google Scholar

42 The Scots law of trusts gives ownership to the trustee and confers a personal right upon the beneficiary with certain privileges. The concept goes back to the early modern period, and English influence has affected its development less than might be expected. These points are expounded in depth by my colleague, Gretton, G.L., in “Scotland: the evolution of the trust in a semi-civilian system,” in Helmholz, R.H. and (eds), R. Zimmermann, Itinera Fiduciae: Trust and Treuhand in Historical Perspective (1998).Google Scholar

43 Hayton, D.J., Kortmann, S.C.J.J. and (eds), H.L.E Verhagen, Principles of European Trust Law (1999), at Pp. 3–4. The National Report for Scotland is by K.G.C. Reid and is at ibid., Pp. 67–84.Google Scholar

44 As an example, a group from the Edinburgh and Strathclyde Law Schools has recently begun work to form a Trusts group contributing to the European Civil Code project.Google Scholar