Scottish Private Law
by Reinhard Zimmermann and John MacLeod
1. The continental connection
Scots law has developed since its inception without codificatory intervention. Over the centuries, it has absorbed many different influences, thereby becoming a jewel of many different facets. From time to time, the courts even resort to pre-feudal Celtic law or Norwegian customary law in deciding cases before them. Above all, however, Scots law is characterized by the position it occupies at the crossroads between continental civil law and the English common law. While the ascendancy of King David I to the Scottish throne in 1124 initially thrust Anglo-Norman feudal law on to the Scots, the succession crisis at the end of the 13th century and the wars of independence, with the decisive Scottish victory at Bannockburn, created a strong and lasting antagonism towards England. This led to the Auld Alliance with France and an orientation towards continental Europe. Connected with it was a gradual reception of the learned laws, as they were taught at the European universities, which turned Scotland into a far-flung province of the ius commune. Scottish lawyers studied Roman law and canon law in the leading faculties of continental Europe: predominantly, at first, in Paris and Orléans (at the University of Orléans, an autonomous Scottish nation existed from the beginning of the 14th century); during the 15th century increasingly in Leuven and Cologne; while in the course of the 16th century, Bourges, the centre of legal humanism, attracted the largest number of Scottish students. This changed after the massacre of the Huguenots in 1572. In 1575 the University of Leiden was founded, which was to attain a leading position in 17th-century Europe. There was a steadily increasing number of Scottish students first at Leiden and later also at the other newly founded universities of the northern Netherlands (Roman-Dutch law). A biographical analysis of the 637 lawyers admitted to the Faculty of Advocates in Edinburgh between 1661 and 1730 has shown that no fewer than 275 of them had studied in the Netherlands. Thus, the works of the leading Dutch jurists were well-known in Scotland; they were regularly cited in legal practice as part and parcel of the ius commune library and exercised a significant influence on the Scottish institutional writers (see below).
2. The age of Enlightenment
Over the course of the 18th century, the ‘Scottish miracle’ occurred: in a nation that was initially dominated by a repressive and bigoted Presbyterianism, one of the most cultured societies in Europe developed. It made significant contributions to modern civilization. Edinburgh became the intellectual centre of the Scottish Enlightenment. Lord Kames’s Sketches of the History of Man, Frances Hutcheson’s System of Moral Philosophy, Adam Smith’s Wealth of Nations, David Hume’s Treatise on Human Nature, Adam Fergusson’s Essay on the History of Civil Society and John Millar’s The Origin of the Distinction of Ranks are among the books that shaped the intellectual life of Europe. The Scottish universities, particularly those in Edinburgh and Glasgow, were of central importance for this unprecedented cultural transformation. The number of students rose from 400 in the 1690s to 1,300 in the last decade of the 18th century in Edinburgh and from 250 in 1696 to 1,240 in 1824 in Glasgow. Legal education flourished in both universities. Chairs of Civil Law were established in Edinburgh and Glasgow in 1710 and 1714, and a chair of Scots Law in Edinburgh in 1722. Since 1707 there had also been a chair of Public Law and the Law of Nature and Nations in the latter university. The institutional textbooks constitute the most important testimonies to the Scottish legal literature of that period. The publication of the Institutions of the Law of Scotland by James Dalrymple, Viscount Stair, in 1681, established Roman-Scots law in the same way as Hugo Grotius’s Inleidinge had previously fashioned Roman-Dutch law. Stair was succeeded by a number of other ‘institutional writers’, in particular Sir George Mackenzie; Andrew McDouall, Lord Bankton; John Erskine; and George Joseph Bell. They continue to be regarded as authoritative.
3. Scotland in the shadow of England
By the middle of the 19th century, the stream of young Scots who studied law at Dutch universities had virtually dried up. The law courses at Scottish universities were now favoured. This, as well as the Napoleonic wars and the success of the codification movement in countries such as France, Prussia, Austria, and the Netherlands, cut Scottish lawyers off from the contemporary ius commune. At the same time there was a marked decline in the study of Roman law, which started to be regarded as merely the historical basis, no longer a vital source, of Scots law. Its creative force appeared to have been spent. Scottish lawyers at this time tended to look to England for guidance. A number of factors combined to produce this shift of orientation. In 1603, James VI, King of Scotland, had inherited the English throne and in 1707, the Treaty of Union with England was ratified. In terms of that treaty, the Scots were guaranteed the survival of their own legal system. Nonetheless, the legislative power was now transferred to Parliament in London, and a doubtful interpretation of the treaty resulted in cases in Scots law being heard at the last instance by the House of Lords. Subsequently, the court system and the law of procedure were reformed and the doctrine of stare decisis gained influence. The Scottish advocates saw their role model in the English barrister. Following the Industrial Revolution, England offered many attractive career opportunities for the members of a nation which had always distinguished itself by restlessness and wanderlust and which had a comparatively highly developed tradition of school and university education. London, of course, was the centre of the British colonial Empire. But Scotsmen played such a prominent role in its conquest, settlement and administration, that it is sometimes referred to as a Scottish Empire. Scottish generals and regiments formed the backbone of the British army; Scottish aristocratic families, who lived in England for a large part of the year, were pillars of the political and social elite. Ambitious young Scotsmen joined the Imperial Civil Service, or they went to an English university, or to one of the Inns of Court, in order to practise law in London. As England’s prestige grew so did that of the common law. Its influence in Scotland became increasingly perceptible: in the works of the last of the institutional writers (institutional textbooks), George Joseph Bell, and other writings on Scots law as much as in the practice of the courts. English commercial law, in particular, was attributed a model character, and the (part) codifications of the Victorian age in that field were thus also made applicable to Scotland. Scottish businessmen were insistent that the law which governed their transactions should be modern and that it should be uniform throughout the United Kingdom; they were supported in this attitude by prominent Scottish lawyers. But the reception of English concepts and ideas extended far beyond commercial law, to areas as diverse as trust law, breach of contract, liability among neighbours, and many others.
4. The profile of the professor
Almost two million people emigrated between 1830 and 1914; a further 600,000 went to England. They were often spectacularly successful. At the same time, this massive ‘brain drain’ meant that Scotland itself was increasingly becoming a backward province of the United Kingdom, a land of grouse shooting and folklore. The Church of Scotland, which was the most important symbol of national identity after the dissolution of the Scots Parliament in 1707, split in 1843. The standard of education in the home universities also dropped. According to the Journal of Jurisprudence, in 1866, of the four Scottish universities, only Edinburgh could claim to have a reasonably complete faculty of law. In Glasgow there were only two incumbents of chairs, in Aberdeen merely one, and legal education had long since been abandoned in St Andrews. Many professors were members of the Faculty of Advocates and continued to practise. They were part-time professors who instructed part-time students in lectures that took place outside normal office hours. Although in the second half of the 19th century there were also professors who had studied in Germany and who were therefore concerned to elevate the prestige of legal education, the members of the law faculties generally occupied a low position in the hierarchy of the legal professions. They were essentially regarded as teachers and not really as legal scholars. To most Scottish lawyers the concept of legal science had presumably become altogether alien: another sign of the dominance of English legal culture in the United Kingdom.
It was only towards the middle of the 20th century that a reaction against the English domination occurred. Lawyers in Scotland became aware, once again, of the independence of Scots law and its historical roots in continental European civil law, and they began to build the institutional foundations for a modern legal culture conforming to contemporary academic standards. The study of law was transformed into a full-time course through the reform of legal education in the 1960s. This brought the universities to the forefront of legal instruction, ahead of the professional bodies. A fifth law faculty (Strathclyde) was added to the four which already existed. The number of students expanded as did the number of lecturers and professors who now devoted all of their time to research and teaching (2,218 law students in the 1990/91 academic year as against only 490 in 1938/39; 190 university teachers in Scottish law faculties in the academic year 1994/95 compared to 26 in 1938/39). In 1965, a Scottish Law Commission was established; its remit was the preparation of legislative reform of Scots law. Today, the independence of Scots law is securely established and, as a mixed legal system at the intersection between civil law and common law, it has begun to play an increasingly important role in contemporary comparative discourse.
6. A modern mixed legal system
The combination of influences is most striking in contract law. The mix of rules in Scots law mirrors that found in the Principles of European Contract Law and the Draft Common Frame of Reference to a remarkable extent: on the one hand, there is no doctrine of cause or consideration (indicia of seriousness), promises are binding without acceptance, contracting parties can confer rights on third parties (contract in favour of a third party) and specific performance is the creditor’s primary remedy; on the other hand, Scots law knows an essentially uniform notion of breach of contract, and it recognizes the doctrines of anticipatory breach, of the undisclosed principal (representation) and of undue influence.
In other areas of private law the mix is different. The Scots law of succession employs executors for the administration of the estate (testamentary execution) and has no concept of heirship in the civilian sense (devolution of the inheritance/universal succession) or unitary concept of unworthiness to inherit. However, freedom of testation is restricted by a rule derived from the jus relicti and legitim of Roman law which entitles widows and children to a fixed portion of the moveable estate (compulsory portion). Further, moveable and immovable assets receive differing treatment in succession. This distinction is attributable to the influence of feudalism on Scots law. It should be noted that the Scottish Law Commission recently proposed comprehensive reforms of the law of succession but it is not clear whether they will be implemented or not.
As might be expected, feudal land law (which survived, albeit in a somewhat atrophied condition, until 2004) also had a major influence on Scots property law, inspiring the widespread use of ‘real burdens’ which impose positive duties on landowners, and encouraging the separation of moveable and immovable property law. The latter tendency was reinforced by the Sale of Goods Acts of 1893 and 1979, which established a uniform regime to transfers of corporeal movables (transfer of title (moveable goods)) based on contracts of sale across the United Kingdom. Despite these incursions, the Scottish understanding of the basic principles of property law is clearly civilian, as the sharp distinction between real and personal rights, the emphasis on the right of ownership, and the adoption of the Roman rules on original acquisition demonstrate. Modern scholarship has driven a reassertion and development of these underlying civilian principles. However, the property provisions in the Draft Common Frame of Reference bear much less resemblance to Scots law than their contract counterparts. For further characterization of Scottish private law see mixed legal systems.
7. Modern academic literature
A sign of the new vitality of Scots law is the body of modern academic literature. In the 19th century the works of George Joseph Bell and John Erskine were used more than any others; the 10th and last edition of Bell’s Principles of the Law of Scotland appeared in 1899, and Erskine’s Principles of the Law of Scotland was reissued yet again in 1911 (21st edn). Erskine was finally displaced by William Murray Gloag and Robert Candlish Henderson’s Introduction to the Law of Scotland. This work appeared in 1927 and became, in the course of time, the most successful publication in Scottish legal literature.
The modern era essentially begins with Thomas Brown Smith, who not only composed a great and somewhat idiosyncratic survey in his Short Commentary on the Law of Scotland (1962) but was also the intellectual father of two large-scale publication projects. These are, on the one hand, an encyclopedia of Scots law in 25 volumes which appeared between 1987 and 1996; and, on the other, the foundation of the Scottish Universities Law Institute (SULI). The task of the latter was (and remains to the present day) to plan and coordinate the publication of modern authoritative textbooks on the main areas of Scots law. Many of the works originating from it are of a very high standard, and some have, in the meantime, appeared in their second or third editions. Nevertheless it is peculiar that the first book on property as a unitary area of law only appeared in the 1990s, and the first volume of the first major textbook on the law of unjustified enrichment in 2003. To this day there is no comprehensive treatment of the Scots law of succession. The market for Scottish legal literature is dominated by one publisher (W Green, founded in 1875, now part of the Thomson Reuters group), although in recent years, Edinburgh University Press has begun to establish itself (following the example of Oxford University Press) as a publishing house with a decidedly scholarly programme with international impact.
The regular publication of decisions of the higher courts in Scotland (the Court of Session in civil matters and the High Court of the Justiciary in criminal matters) dates back to the mid-19th century; the standard modern reports, the Session Cases (cited by the name of the chief reporter until 1906) first appeared in 1821.
Thomas Brown Smith, Studies Critical and Comparative (1962); Peter Stein, Roman Law in Scotland, Ius Romanum Medii Aevi, Pars V, 13b (1968); David M Walker (ed), The Scottish Jurists (1985); Sir Thomas Smith and others (eds), The Laws of Scotland, Stair Memorial Encyclopedia, vols 1–25 (1987 ff—since 1999 a number of articles have been revised); David M Walker, A Legal History of Scotland, vol I (1988), vol II (1990), vol III (1995), vol IV (1996), vol V (1998), vol VI (2001), vol VII (2004); Robin Evans-Jones (ed), The Civil Law Tradition in Scotland (1995); David L Carey Miller and Reinhard Zimmermann (eds), The Civilian Tradition and Scots Law: Aberdeen Quincentenary Essays (1997); Kenneth Reid and Reinhard Zimmermann (eds), A History of Private Law in Scotland, 2 vols (2000); Elspeth Reid and David L Carey Miller (eds), A Mixed Legal System in Transition: TB Smith and the Progress of Scots Law (2005); Lord Coulsfield and Hector L MacQueen (eds), Gloag and Henderson: Introduction to the Law of Scotland (12th edn, 2007).
Regiam Majestatem, The Auld Lawes and Constitutions of Scotland, collected by John Skene of Curriehill (1609), ed and trans in a new edition by Lord Cooper of Culross, Stair Society, vol 11 (1947); Sir Thomas Craig of Riccarton, Jus Feudale (1st edn, 1655), 3rd edn, ed by J Baillie, 1732, trans Lord Clyde, 1934; James Dalrymple, Viscount Stair, Institutions of the Law of Scotland (1st edn, 1681), (2nd edn, 1693) (re-edited by D M Walker, 1981); Sir George Mackenzie of Rosehaugh, The Institutions of the Law of Scotland (1st edn, 1684), (8th edn, 1758); Andrew McDouall, Lord Bankton, An Institute of the Laws of Scotland in Civil Rights (1751–53) (reprinted by the Stair Society, vols 41–43, 1993–95); John Erskine of Carnock, Principles of the Law of Scotland (1st edn, 1754), 21st edn ed by J Rankine, 1911; John Erskine of Carnock, An Institute of the Law of Scotland (1773), 8th edn ed by JB Nicholson, 1871 (reprinted 1989); Baron David Hume, Lectures 1786–1822, ed by GCH Paton, Stair Society, vols 5, 13, 15, 17–19 (1939–58); George Joseph Bell, Commentaries on the Law of Scotland and on the Principles of Mercantile Jurisprudence (2nd edn, 1810), 7th edn by J M’Laren, 1890 (reprinted 1990); George Joseph Bell, Principles of the Law of Scotland (1st edn, 1829), 10th edn ed by W Guthrie, 1899 (reprinted 1989).