INTRODUCTION

The title of this essay carries certain implications, in particular that there is something which can be identified as Roman law and that Roman law did exercise influence both in England and in Scotland. It is implied, furthermore, that it is worthwhile to make a comparison between these two countries and jurisdictions in this respect. The question of what is meant by Roman law is somewhat more complicated than might at first appear and more is said on this below. So far as comparison is concerned, on a simplistic view it might seem that there is little or no scope for that process. England is the mother country of the Common Law and English lawyers are proud of that remarkable system and have been unwilling to concede that it has owed anything to outside influence, least of all to the Civil Law. Scotland, on the other hand, has participated in the Civilian tradition and Scots lawyers, we are told, are equally proud of belonging to that tradition and not anxious to see Scots law affected or further affected by an influence from the Common Law which has at times been baneful. English law and Scots law are, therefore, in different families or camps - and “camps”, with its military connotations, might seem the better metaphor considering the vigour with which the debate on the respective merits of the Common Law and the Civil Law has often been conducted. This would lead to contrast rather than comparison.