Our inquiry into the substantive appeal of the new natural lawyers' views concerning gender and sexuality needs to proceed in three stages. First, in the present chapter we explore some of the key arguments that have been advanced – both philosophically and in constitutional litigation – to explain the moral and constitutional wrongs associated with discrimination relating to gender and sexual orientation, and in the broader social attitudes known as sexism and homophobia. We consider arguments based on respect for privacy, equality, and autonomy (with its concomitant opposition to what we describe as moral slavery). We argue that autonomy constitutes the strongest argument of the three, and that it may indeed be treated as the value underpinning arguments based upon privacy and equality. Although these three arguments reach radically different conclusions from those advanced by the new natural lawyers, the exercise is analogous to that engaged in by Finnis and George when they (respectively) advocated a conservative interpretation of relevant U.S. constitutional provisions in Romer v. Evans and Lawrence v. Texas, in that we accept – as they do – that judges do and should take account of philosophical arguments when determining the proper scope of such provisions. We thus set out, as a possible constitutional principle giving voice to the autonomy argument in the U.S. context, the theory of opposition to moral slavery (advanced by one of us in previous writings).

In the two preceding chapters, we argued that the new natural lawyers' treatment of sexuality and gender is substantively unappealing. In this chapter, we develop the argument on a more general basis by analyzing the new natural lawyers' idea of moral absolutes. Apart from further highlighting the theory's general lack of appeal, this analysis will provide an additional illustration of its religious characteristics, taking forward our argument from Chapter 4. We intend to make two specific arguments. The first is that the new natural lawyers' articulation of a series of moral absolutes makes the theory appear, at first sight, to constitute a Catholic form of fundamentalism. Since fundamentalism is usually viewed as a strain of Protestant thought associated with a belief in the literal truth of the text of – or certain texts within – the Bible, this argument requires us to analyze the idea of fundamentalism in further detail. We suggest that some fundamentalist arguments involve a belief in the literal and absolute truth of a text – the version associated with some forms of Protestantism – but that the term ‘fundamentalist’ can also be applied to any absolutist doctrinal argument that operates according to an internal logic but with little or no connection to the day-to-day morally relevant realities of the world. It is in this second sense that the moral absolutes might at first sight be categorized as fundamentalist.

It is now time to draw together the threads of our discussion. In the first section of this concluding chapter, we therefore provide a summary of our criticisms of new natural law and of the new natural lawyers' arguments concerning gender- and sexuality-related issues (both as a general matter and in relation to the law). As we promised in Chapter 2, these criticisms are expressed in terms of our internal consistency and substantive appeal criteria. In the second section, we turn in a rather different direction. It would be easy to conclude this book just with criticisms of new natural law, but we prefer not to do so. As we have tried to make clear, our aim has not been to argue that persons of religious faith should be precluded from contributing to political, ethical, and legal debate within a constitutional democracy: Instead, our concern has been that anyone who seeks to participate should be open about the basis on which they are doing so, and should strive to avoid inconsistencies in their arguments. Furthermore (and whatever our personal views about religion) we have not been seeking to belittle the important role played by religious faith in the lives of countless human beings. This being so, we believe that it would be appropriate to finish by drawing attention to the existence of alternative Christian approaches, which look very different to the conservative doctrines to which the new natural lawyers subscribe.

In the past forty-odd years, a tight-knit and highly influential group of Catholic thinkers, labeled (for wont of a better term) the ‘new natural lawyers’ or the ‘Grisez School’, has sought to develop an integrated theory applicable to the fields of religion, ethics, philosophy and law. As E. M. Atkins suggests, the new natural lawyers' work “is characterized by a bold trust in reason, by elaborate systematization, by a willingness to apply theory to a wide range of specific practical problems, and by a strong allegiance to Roman Catholic moral teaching, interpreted in a conservative way”. New natural law provides a distinctive approach to Catholic theology, alongside a comprehensive account of ethics and the nature and proper purposes of law and legal systems. At a practical level, its proponents argue in favor of unilateral nuclear disarmament and against contraception, abortion, and any sexual activity outside of the heterosexual marriage (and many common sexual practices within it) – including all lesbian and gay sexual activity. The new natural lawyers have played a prominent part in doctrinal debates within the Roman Catholic Church, and have sought to influence the outcome of important constitutional cases in the United States by submitting closely argued amicus briefs. New natural law arguments were, for example, advanced before the United States Supreme Court in Lawrence v. Texas in support of a state anti-sodomy statute that was later held to violate the Fourteenth Amendment due process guarantee, and at the state supreme court level in Romer v. Evans in support of a measure that was later found by the U.S. Supreme Court to display unconstitutional “animus” towards lesbians and gay men.

Professor Stein's collected essays on the Roman Civil Law contain more than one contribution relevant to the theme of the present article which it is a particular pleasure to dedicate to him. Much work could still be done on that theme and modern scholarship has opened up and continues to open up new views upon it. What is offered is an interim report.

SCOTLAND'S ALLIANCE WITH FRANCE

Scotland and France were linked by alliance from an early date. Fanciful history placed the earliest alliance in the time of Charlemagne and there were indeed alliances on particular occasions, such as that between William the Lion and Louis VII of France in 1173, but the beginning of the “Auld (Old) Alliance” as a standing relationship can be dated to 1295. The treaty in question was entered into by John Balliol, then king of Scotland, and Philip IV of France, but the Estates of Scotland seem to have had more enthusiasm for it than Balliol himself. He had emerged as king of Scotland as a result of the Great Cause, the dispute over the succession to the crown of Scotland which arose on the death of the infant Queen, Margaret the Maid of Norway.

INTRODUCTION

The concept of a mixed jurisdiction is familiar to comparative lawyers. It is one that is open to the criticism that it assumes that some jurisdictions are pure. Whether there are any such in what is described as the developed world may be doubted. It is certainly increasingly unlikely that any jurisdiction will be immune from influence from outside and therefore free from any admixture of non-native elements. There may, therefore, come a day when the concept of the mixed jurisdiction has to be abandoned but for the time being it is a useful one. It seems particularly appropriate when there is a mixture within one jurisdiction of different legal traditions, such as the Common Law and the Civilian traditions. These have distinctive characteristics even if they are being brought closer together in areas such as the European Union and it is in the sense of the mixture of the Common Law and the Civilian traditions that Scotland is a mixed jurisdiction.

POLITICAL HISTORY

The fact that Scotland can claim to be a mixed jurisdiction has much to do with the history of its relations with its neighbouring jurisdiction, England. Although Scotland and England now are part of one political entity, the United Kingdom (of Great Britain and Northern Ireland, to give it its full title), they are separate legal jurisdictions under the Treaty of Union by which they were united in 1707. That they were not fully united reflects both political and legal history.

It is notorious that the classical law on the acquisition of possession by persons in potestas is far from clear. Justinian's law appears to be that where possession is acquired in respect of the peculium the paterfamilias acquires possession immediately the person in potestas takes the thing. The paterfamilias need not have authorised the taking and he need not know of it. Where possession is acquired otherwise than for the peculium, however, the paterfamilias only acquires where he has authorised the taking or when he learns of it. It is probably the dominant opinion that this scheme also represents the classical law, but it has long been maintained by some that in classical law the paterfamilias automatically acquired possession of whatever a person in his potestas took and that the existence of a peculium was either completely irrelevant, as has recently been maintained by Nicosia or at least was relevant only in certain circumstances, such as in determining the beginning of a usucapio, the view more recently defended by Watson. A question arising in the course of this dispute is whether the rules, whatever they were, were the same for acquisition of possession and acquisition of ownership by traditio and I propose to consider this question and then deal briefly with the rules of acquisition of possession.

INTRODUCTION

The invitation to give this paper referred to a number of overlapping questions raised by Europeanisation of law, a phenomenon which, however inelegantly described, is now familiar to most lawyers. It was explained that the general theme of the colloquium was to be the Europeanisation of law and the legal curriculum and it was suggested that I might consider such questions as the Europeanisation of legal history itself, the use of legal history in bridging the gap between the Common Law and the Civil Law and the importance of legal history as a help to the understanding of legal forms and concepts coming to the United Kingdom from Europe. Clearly those parts of the United Kingdom which use the Common Law were particularly in view. Equally clearly it was no coincidence that the invitation was extended to one of the authors of a book somewhat ambitiously titled European Legal History. It is worth noting by way of introduction that the history of how the second edition of that book came into being is something of an object lesson in the problems and opportunities which our closer ties with continental Europe create and which it is the object of this colloquium to examine. While it was not in publishing terms a bestseller the first edition, produced by Professional Books, did sell out within what seemed to the authors a reasonable period.