In his excellent survey of the influence of Roman law on Scots law Professor Stein states that there was in the nineteenth century a decline in the Roman influence on Scots law and observes that:

The case selected for discussion in this article, Gowans v Christie, has been so selected because it affords some evidence to support Professor Stein's view on the relevance of industrialisation to the decline of the influence of Roman law in Scotland and also because it illustrates other aspects of the use of Roman law in Scotland and the climate of opinion in the nineteenth century in which the possibility of application of Roman law arose.

This article is a revised version of an address given at the Annual General Meeting of the Stair Society on 6 November 1999. It explores three issues relating to the use of the Civil Law in Scotland. The first is the distinction to be drawn between Roman Law and the Civil Law and the use that can be made of the Civil Law as distinct from Roman Law. The second is the issue of reception of another legal system, the reception of the Civil Law in Scotland in particular, and the countervailing influence of English law. The third is the place of Roman Law and the Civil Law in legal education in Scotland.

INTRODUCTION

To be asked to address the Stair Society at its Annual General Meeting is a great honour and also a great responsibility. I confess that it was the responsibility that struck me first and which still weighs upon me. I am mindful too of the high standard set by my predecessor, David Sellar, when he gave a learned and elegant address, two years ago which has stuck in my mind as a model. In that address he challenged and challenged successfully the view that the history of Scots law lacks continuity. He also argued for a continuing influence of English law alongside such Civilian influence as there may have been. When I was casting about for my own subject my mind turned to the question what that Civilian influence had been.

INTRODUCTION

The names of the conditio si institutus sine liberis decesserit and the conditio si testator sine liberis decesserit both suggest a Roman origin. That the first has a Roman origin is commonly accepted but the Roman origin of the second has been doubted. Re-examination of the question suggests that both these views are at least partly wrong and that some of those who have admitted the Roman origin of the conditio si testator have misconstrued its source. These considerations would in themselves justify the re-examination but the adoption of the conditiones also affords an interesting illustration of the manner in which Roman law has influenced Scots law.

ROMAN LAW - THE TEXTS IN THE CORPUS JURIS CIVILIS

For the purposes of this article it is necessary to consider only the law of Justinian as contained in the Corpus Juris Civilis. The essential texts are four in number – D 35.1.102, C 6.42.30, C 6.25.7(6).1-3 and C 8.55(56).8. The first three relate to the conditio si institutus and the fourth relates to a situation analogous to that dealt with by the conditio si testator. D 35.1.102 is a decision given by (or attributed to) Papinian who holds (or is said to have held) that where a grandfather made a disposition to his grandson, burdened with a fideicommissum in favour of the testator’s son, if the grandson should die before he reached the age of thirty, the fideicommissum failed when the grandson died under the age of thirty leaving children.

Among his notable contributions to the study of the lex Aquilia Professor Beinart has included a study on its origins which takes up the statements of Byzantine jurists - in particular Theophilus and the scholiast “Anonymous” on the Basilica - connecting the lex with a secession of the plebs. This secession is in turn taken to be the so-called Third Secession which was followed by the lex Hortensia of 287 bc which made plebiscites binding on both patricians and plebeians. His conclusion that these statements were quite plausible and help to explain some features of the statute, including the retrospective valuation of the res prescribed in the first chapter, has not found general acceptance and so the debate on the dating of the lex remains open. A more recent contributor, Professor Honoré, rejects the connection with a plebeian secession, preferring a connection with the inflation resulting from the Second Punic War and there is indeed a possible Aquilius, tribune of the plebs, in or around 211 BC, but it is not our intention to enter into all the arguments which have been deployed to establish a date. We are concerned rather with one aspect of the debate, namely, the reliability of the Byzantine statements. If, after all, the Byzantine jurists were better informed than we are then their statements are preferable to arguments which are in large part conjectural, however plausible that conjecture may be.

INTRODUCTION

This article is a continuation of a previous article that in turn derived from a paper given at the Eleventh British Legal History Conference in Exeter in 1993. That paper and article were primarily concerned with the nature of the entries in the two volume register or registrim to which reference is made in Balfour's Practicks when citing cases. In these entries records of cases in the acta of Council and Session are converted into propositions of law vouched by these cases. The entries are in effect embryo law reports and the register is a digest of early case law. It is not clear that the register was used by anyone other than Balfour and so it may reasonably be called Balfour's Registrum. In the course of the earlier work it was noted that the early entries appear to be largely in chronological order or at least in chronological runs. It was suggested that the Registrum might have been compiled by making extracts from the original acta but it was also noted that further study was needed of the whole range of entries in the Registrum before making any final judgment. What follows is that further study, versions of which were presented to the Fourteenth British Legal History Conference in Edinburgh in July 1999 and to the Scottish Legal History Group in October 1999.

Tony Honoré says of Ulpian, “His importance lies in the part he played in the transmission of the Roman legal heritage”. His interest in Ulpian and that legal heritage may justify the dedication to him of these few remarks on legal tradition, although one of his own claims to honour must be that he is a pioneer who is not content merely to follow tradition.

It was until recently a commonplace that one of the notable features of Roman law was the strong element of tradition, especially among the jurists who to a large extent created that law. That view was stated with characteristic assurance by Fritz Schulz, who in his Principles of Roman Law devoted his sixth chapter to “Tradition”. The jurists have therefore been described as traditionalists. Grosso may be regarded as typical both in accepting Schulz's views and in linking the jurists' sense of tradition with the creation of Roman law, which he describes as “the greatest monument of legal wisdom” (il più grande monumento di sapienza giuridica). More recently, the question of the jurists' sense of tradition has been re-examined with equally characteristic subtlety by Dieter Nörr. In the light of this re-examination it is no longer possible to use the term “traditionalists” of the jurists with the same assurance as before, if indeed it is possible to continue to use the term at all. He would discard a sense of tradition from the “principles” of Roman law without denying that there were traditional elements in the law; a tendency to follow tradition was simply one of various tendencies operating and the place of tradition among these tendencies needs to be more carefully considered.

The purpose of this essay is to make a beginning with an exploration of the content and layout of a register mainly containing decisions of the Scottish lords of council which for simplicity I shall refer to as “the Register”. This Register apparently existed in the sixteenth century but is no longer extant; at any rate, if it has been misplaced rather than lost or destroyed, it has not yet emerged from its hiding place. The main and, as will appear, perhaps the only direct source of our knowledge of it is the work known as Balfour's Practicks which was compiled in the sixteenth century by Sir James Balfour of Pittendreich and first printed in 1754.

In these Practicks decisions are usually referred to not only by their date and by the names of the parties but also by a chapter number in one of two volumes which for the most part contained decisions (along with some Acts of Parliament or council). An example of such a reference is “15 Octob. 1478, Williame Lord Creichtoun contra Herbert Johnstoun, 1 t. c. 21” which is recorded in the Practicks in the second half of c VI of the title “Of milnis and multures” (494).

The paper from which this article derives was prepared for the Fifth British Legal History Conference. Concerned as it was primarily with the use of Roman law in nineteenth-century Scottish cases it did not at first seem likely to have much bearing on the main theme of the Conference, law and social change in British history. In fact the initial expectation proved false in more than one respect. More particularly it proved false in that the course of investigation led to the fascinating case of Jex-Blake v The Senatus Academicus of the University of Edinburgh which raised the important question whether women were entitled to be admitted to the Scottish universities and to graduate there from.

This case arose out of the efforts of Sophia Jex-Blake and other women to obtain a qualification entitling them to become registered medical practitioners. The Medical Act 1858, which was designed to improve control over the medical profession, set up a general medical council and introduced a system of registration of those practising medicine. By section 15 it provided that for the future any person wishing to be registered under the Act and so obtain the important privileges resulting from registration had either to hold a qualification from one of the professional bodies in the United Kingdom, such as the Royal Colleges of Physicians or of Surgeons of London or of Edinburgh, or to be “a doctor or bachelor or licentiate of medicine or master in surgery of any university of the United Kingdom”. In 1869 when the story begins none of the professional bodies referred to admitted women to membership.

Quasi-delict as a term used to denote delictual obligations arising from fault rather than intent is well-established in Scots law. It owes its currency mainly to its use by the writer George Joseph Bell in his Principles of the Law of Scotland which first appeared in 1829. His probable source was Heineccius's Elementa iuris civilis. He was thus adopting a distinction between delict and quasi-delict which was commonly recognised among Civilian writers, In that particular sense it has come under criticism, among other things because as a general classification it gives no place to strict liability, but the acceptance of the term into Scots law is not in doubt. What is in doubt is the place of the Roman law obligations quasi ex delicto as set out in Justinian's Institutes, in particular the actio de effusis vel deiectis and the actio de positis vel suspensis both of which have come under some scrutiny in a recent case. These particular examples raise interesting questions relating to the reception of Roman law into Scots law. In particular they bring out the need to distinguish between Roman law and Civil Law, a distinction which is often blurred, and they bring out the importance of distinguishing between the appearance and the reality of Roman or Civilian influence. What appears to be Roman because expressed in terms of Roman law may turn out to be something different when examined more closely.

While Bell's Commentaries made Bell's reputation it may be suspected that his Principles have been more frequently consulted over the years. The Principles were written for the students of the University of Edinburgh, but of the later editions it could be said that they found an adoptive home in Glasgow under the editorship of William Guthrie, Sheriff-Substitute and later Sheriff of Lanarkshire. It therefore seemed not inappropriate in a work to be presented to the author of the Principles of Scottish Private Law, which have their domicile of origin there, to write a note on Bell. At the same time it seemed preferable to eschew direct discussion of either the Commentaries or the Principles and to look instead at another aspect of Bell's work, which has received less attention, namely, his contribution to the law commissions which were set up in the 1820s and 1830s. These, along with their predecessors from the earlier years of the century, produced a considerable number of reports which both contain interesting information on the state of the Scottish legal system at this period and led to important legislative reforms, and it seemed worthwhile to take this opportunity to draw attention to what was achieved as a result of their activity.

This collection offers a representative selection of articles and contributions to books which have appeared during my academic career. The essays are grouped, sometimes a little roughly, into those concerned with “pure” Roman law, those concerned with the influence of Roman or Civil Law on particular issues in Scots law, those concerned with Scottish legal history, those concerned with the wider influence of the Civil Law and finally three essays on more general topics. They have been lightly revised for publication.

Without the inspiration and encouragement of David Daube, of whose advanced class in Roman law at Aberdeen I was for two years the sole undergraduate member, it is doubtful whether I would have taken up an academic career as I had during my LLB studies simultaneously enjoyed an old-style apprenticeship with Messrs A C Morrison & Richards. My equally enjoyable apprenticeship in academia was with Peter Stein and Tony Thomas in Aberdeen and Glasgow respectively, and it is not therefore surprising that the first article in the collection is on Roman law (No 1) stemming from work on my PhD, the thesis for which was eventually published as Studies in the Transfer of Property by Traditio. While I would still stand by the conclusions reached I would now take the view that the classical lawyers who recognised constitutum possessorium would have taken each case on its merits rather than, as I then suggested, making a dogmatic requirement that there be a causa detentionis or reason for remaining in possession. Scots law indeed could with advantage take the same approach.

In a collection of essays offering a well deserved tribute to a friend and colleague Mario Talamanca with the collection to be entitled Iuris Vincula it seemed appropriate to discuss certain aspects of the legal bond created by servitudes. The discussion relates primarily to Scots law but where the law of servitudes is concerned Scots law owes a great deal to Roman law and hence it seemed equally appropriate to dedicate the discussion to a Roman lawyer who has made notable contributions to the discipline.

Although the influence of Roman law in the Scots law of servitudes is clear it is equally clear that rights comparable to servitudes existed in Scots law long before the extensive reception of Roman law which took place in Scotland from the fifteenth century onwards. Early charters refer to rights such as pasturage, usually in some such form as aisiamenta - whence the “easements” of English law, to which early Scots law had a close resemblance. But Scots law as it developed adopted the terminology and the main principles of the Roman law of servitudes, as is evidenced in part by the general abandonment of the term “easement” in favour of “servitude” to describe the rights in question. As is commonly the case with reception of Roman law into Scots law the adoption was not complete.

Nihil quod est contra rationem est licitum – “Nothing that is against reason is lawful” – was a favorite maxim of Sir Edward Coke, the seventeenth-century Englishman's oracle of the common law and an authority still in colonial America on the eve of the Revolution. In slightly different form, the maxim appeared in Coke's report of Doctor Bonham's Case, cited by James Otis in the 1761 Massachusetts Writs of Assistance Case that began the constitutional argument for Independence: “when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will control it, and adjudge such Act to be void.” Alexander Hamilton references neither Bonham's Case nor Otis's argument in Federalist No. 78, where he develops the reasoning behind judicial review of legislation, nor is either of the cases mentioned in John Marshall's opinion in Marbury v. Madison. But both insist on the power of courts to void legislation repugnant to the Constitution as a matter of simple logic: Hamilton writes of “the nature and reason of the thing,” and Marshall of the “theory … essentially attached to a written constitution.” There is little doubt that the recourse to “reasonableness” in the judicial evaluation of regulatory legislation in the nineteenth century draws upon the legacy of this now-ancient maxim, nor perhaps that the “rational relation” test of the twentieth century is a modification of that tradition, too.

Introduction

The relationship between the common law and statute law is a subject of debate. The controversy goes deeper than questions of interpretation, such as – given the doctrine of legislative supremacy over the common law – why, how, and to what extent the meaning of a statute can legitimately be governed by common law principles. The answers to those questions depend partly on more basic issues concerning the legal foundations of the two bodies of law, and their respective status. The orthodox view is that because Parliament can enact statutes that override any part of the common law, statute law is superior to common law. But according to an increasingly popular theory, Britain's “unwritten” constitution consists of common law principles, and therefore Parliament's authority to enact statutes derives from the common law. As Trevor Allan puts it, “the common law is prior to legislative supremacy, which it defines and regulates.” This theory has become so popular that even the British government has endorsed it. When the Attorney-General Lord Goldsmith was asked in Parliament what was the government's understanding of “the legal sources from which the legislative powers of Parliament are derived,” he replied, “The source of the legislative powers is the common law.”

This theory threatens to invert the relationship between statute law and common law as traditionally understood.

The common law is today as fertile a source for theoretical inquiry as it has ever been. Around the English-speaking world, many scholars of law, philosophy, politics, and history study the theoretical foundations and applications of the common law. Nevertheless, these scholars too infrequently speak directly to one another, across jurisdictional or disciplinary boundaries. In an effort to foster that dialogue, and to frame and contribute to the discussion, this book is organized around certain classic common law concepts or themes: common law rules, common law reasoning, and common law constitutionalism. This thematic structure will help to emphasize the book's contributions to our understanding of the common law and to wider debates about rules, reasoning, and constitutionalism. At the same time, the division of this book into its three constituent parts should be understood as heuristically rather than hermetically motivated. Given the nature of theorizing about the common law, these themes inevitably and fruitfully overlap. Where the common law is concerned, it is difficult to write about rules without also writing about reasoning, and it is difficult to write about constitutionalism without also writing about rules. To theorize meaningfully about the common law, we need to see how these different concepts and domains of thought relate to one another. We need to see the wide-ranging theoretical and practical importance of the common law as a mode of legal thought, a body of legal doctrine, and a structural force in the relationships of governmental actors and institutions at a constitutional level.

Introduction

In anglophone legal systems, the common law provides a constitutional foundation for legitimate government. It embodies a tradition of governmental compliance with the rule of law, subjecting official decisions and actions to independent judicial scrutiny. The evolution of common law principle, prompted by changing moral attitudes within society at large, provides for the adaptation of traditional values to present conditions. It enables the abstract clauses of a “written” constitution to acquire new meaning and gives an “unwritten” constitution its principal legal content. In performing such important tasks, moreover, the common law presupposes a distinctive vision of liberal democracy: It aspires to nurture and sustain a coherent constitutional morality, reflecting widely shared commitments to a fundamental ideal of equal justice. In a common law legal order, authoritative texts – whatever their formal status – are interpreted as elements of that larger constitutional design. Their true meaning and legal consequences are always matters of conscientious moral judgment, undertaken within the context of a strong legal tradition: The exercise of power is everywhere subject to moral scrutiny and the standing requirement of reasoned justification.

In the context of a common law rule, the notion of legal “validity” is largely redundant. The rule announced by the court in an earlier case may be relevant to the current inquiry, yet have little or no force.