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Brexit and Scotland: Centralism, Federalism or Independence?

  • Andreas Rahmatian (a1)

Abstract

The public debate about the consequences of Brexit in Britain follows certain predictable lines of established academic concepts in British constitutional law. This arguably overlooks the important constitutional complications of Brexit, including the position of Scotland in post-Brexit Britain. This article takes the unorthodox approach of focusing on legal and intellectual history rather than British constitutional law, because in this way one obtains a better understanding of the present British constitutional framework in the context of Europe. The discussion is from a continental European viewpoint and through the eyes of a private and commercial lawyer. The completely different understanding of Britain and Europe about the nature of a constitution and the structure of a state becomes more apparent with Britain’s departure from the EU, which may also influence the future national cohesion of the UK itself, particularly the relationship between England and Scotland after Brexit.

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1. Bogdanor, V. (2009) The New British Constitution (Oxford and Portland, OR: Hart Publishing), p. 173.
2. de Tocqueville, A. (1969) Democracy in America, edited by J.P. Mayer (New York: Doubleday), vol. 1, chapter 7, pp. 246, 254–255. For a historical discussion in relation to constitutions in Europe before 1848, see L. Lacche (2013) Granted constitutions. The theory of Octroi and constitutional experiments in Europe in the aftermath of the French Revolution. European Constitutional Law Review, 9(2), pp. 285–314, at pp. 297–298.
3.Scotland 62% remain, Northern Ireland 55.8% remain, England 46.6% remain, Wales 47.5% remain. See BBC EU referendum results, available at: http://www.bbc.co.uk/news/politics/eu_referendum/results (accessed 17 January 2018).
4. R. (on the application of Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768, para. 92.
5.That was the headline of the Daily Mail on 4 November 2016, written by the political editor James Slack, online version: http://www.dailymail.co.uk/news/article-3903436/Enemies-people-Fury-touch-judges-defied-17-4m-Brexit-voters-trigger-constitutional-crisis.html (accessed 17 January 2018) after the High Court judgment of R. (on the application of Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) was handed down.
6.Compare, for example, the statement of the ‘Imperial Judicial Leader’ Hans Frank in Nazi Germany in 1936, that the judge’s duty is ‘not to give effect to a legal order above the people’s community [Volksgemeinschaft] or to enforce general ideas and values but to preserve the concrete folkish [völkische] communal order …’, extract in W. Hofer (1982) Der Nationalsozialismus. Dokumente 1933-1945 (Frankfurt am Main: Fischer Taschenbuch Verlag), p. 101.
7.Whether certain EU measures after the financial crisis, such as the Treaty on Stability, Coordination and Governance, TSCG (Fiscal Compact) (an intergovernmental treaty under international law between 25 EU Member States) further the principal European idea is debatable.
8.The Bloomberg speech by the then Prime Minister David Cameron of 23 January 2013, says that, as well: ‘For us, the European Union is a means to an end – prosperity, stability, the anchor of freedom and democracy both within Europe and beyond her shores – not an end in itself.’, available at: https://www.gov.uk/government/speeches/eu-speech-at-bloomberg (accessed 17 January 2018).
9. Rahmatian, A. (2016) European copyright inside or outside the European Union: pluralism of copyright laws and the ‘Herderian paradox’. International Review of Intellectual Property and Competition Law, 47(8), pp. 912940, at pp. 919–921.
10. Herder, J.G. (1989) Ideen zur Philosophie der Geschichte der Menschheit, edited by M. Bollacher (Frankfurt am Main: Deutscher Klassiker Verlag), pp. 253, 298, 369370. For Herder’s ‘Unity in difference’, see I. Berlin (2000) Herder and the Enlightenment. In: I. Berlin and H. Hardy (Eds), Three Critics of the Enlightenment: Vico, Hamann, Herder (London: Pimlico), pp. 168–242, at p. 177.
11.See for example the Prime Minister Theresa May in her keynote speech at the Conservative Party conference 2016: available at: http://www.independent.co.uk/news/uk/politics/theresa-may-speech-tory-conference-2016-in-full-transcript-a7346171.html (accessed 17 January 2018): ‘But if you believe you’re a citizen of the world, you’re a citizen of nowhere. You don’t understand what the very word “citizenship” means.’ Her statement was much more subdued at the Conservative Party Conference 2017: ‘If you are a citizen of the EU who has made their life in this country … we value the contribution you make to the life of our country. You are welcome here. And I urge the negotiating teams to reach agreement on this quickly because we want you to stay.’ (See https://blogs.spectator.co.uk/2017/10/theresa-mays-conservative-conference-speech-full-text/ accessed 17 January 2018), but actually she leaves the result to the negotiators who can be blamed if an agreement cannot be reached.
12. Frith, M., ‘I hope we ditch the Scots from the UK. And the Welsh. Then we can just be England. That’s what people want – England back’, The Sunday Herald, 26 June 2016.
13.European Council (Art. 50) meeting, 15 December 2017, EUCO XT 20011/17, following the Joint Report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union, 8 December 2017.
14.This is what I suggested in A. Rahmatian, ‘Brexit: Verhandeln um des Verhandelns Willen?’ Der Standard (Austria), 24 August 2017.
15.Statement by the President of the European Council, Donald Tusk, 26 September 2017, EU press release 533/17: ‘as I have always said, in fact Brexit is only about damage control’.
16.As the former permanent representative of the UK to the EU, Sir Ivan Rogers, said in his resignation letter of 3 January 2017: ‘Serious multilateral negotiating experience is in short supply in Whitehall, and that is not the case in the Commission or in the Council.’ Available at: http://www.bbc.co.uk/news/uk-politics-38503504 (accessed 17 January 2018).
17.For the following passage see R. Arnold, L.A.F. Bently, E. Derclaye and G.B. Dinwoodie (2017) The legal consequences of Brexit through the lens of IP law. University of Cambridge Faculty of Law Research Paper No. 21/2017, Available at SSRN: https://ssrn.com/abstract=2917219, p. 5. A. Rahmatian (2017) Brief speculations about changes to IP law in the UK after Brexit. Journal of Intellectual Property Law and Practice, 12(6), pp. 510–515, at pp. 512–513.
18.For the history of this project, see J. Pila (2013) The European patent: An old and vexing problem. International and Comparative Law Quarterly, 62, pp. 917–940.
19.Regulation 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection; Regulation 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements; Agreement on a Unified Patent Court (UPC Agreement) OJ C 175 (20/06/2013).
20.Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (codification), OJ L 154.
21.Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Designs, OJ EC No L 3.
22.See Regulation 1257/2012, Recitals 5 and 6, and Arts. 1 (2), 2 (b) and (c), 3 (1).
23.UPC Agreement, Recital, paras. 3, 4 and 14.
24.Regulation 1257/2012, Art. 3 (2).
25.Regulation 1257/2012, Arts. 5 (3) and 7 (1): unitary patent and nature of patent protection granted are defined by national law.
26. Kaesling, K. (2013) The European patent with unitary effect – a unitary patent protection for a unitary market? UCL Journal of Law and Jurisprudence, 2(1), pp. 87111, at pp. 92, 110.
27.Regulation 1257/2012, Recitals 3, 5.
28.European Union (Withdrawal) Bill, s. 6.
29.Regulation 1257/2012, Arts. 3 (2), and 7 (1).
30.On 14 December 2016, the UK’s deputy permanent representative to the EU signed the Protocol on Privileges and Immunities of the Unified Patent Court, see Council of the EU website: http://www.consilium.europa.eu/en/documents-publications/agreements-conventions/agreement/?aid=2016047 (accessed 17 January 2018).
31. Rankin, J., O’Carroll, L. and Elgot, J. (2017) UK’s approach to Brexit is ‘nostalgic and unrealistic’, says EU negotiator. The Guardian, 31 August 2017.
32.Recently also R. (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] HRLR 2, para. 40: ‘The United Kingdom does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law. Our constitutional arrangements have developed over time in a pragmatic as much as in a principled way, through a combination of statutes, events, conventions, academic writings and judicial decisions’.
33. Davies, N. (1981) God’s Playground. A History of Poland, Vol. 1 (Oxford: Clarendon Press), pp. 534535. An English translation of the Polish Constitution of 3 May 1791 can be found under: https://en.wikisource.org/wiki/Constitution_of_May_3,_1791 (accessed 17 January 2018). The Polish constitution of 3 May was still committed to the idea of estates and a state religion (arts. 1–4), but contained clearly the concept of separation of powers (arts. 5, 7–8).
34.Ch. Harpum, S. Bridge and M. Dixon (Megarry and Wade) (2008) The Law of Real Property, 7th edn (London: Thomson/Sweet and Maxwell), pp. 29–30.
35. Simpson, A.W.B. (1986) A History of the Land Law (Oxford: Oxford University Press), pp. 22, 54; J. Bray (2009) Feudal law: The case for reform. In: M. Dixon (Ed.), Modern Studies in Property Law, Vol. 5 (Oxford and Portland, Oregon: Hart Publishing), pp. 99–121, at p. 102.
36. Reid, K.G.C. (2003) The Abolition of Feudal Tenure in Scotland (London: Lexis-Nexis), p. 2.
37.Tenures Abolition Act 1746, Heritable Jurisdictions (Scotland) Act 1746. Gretton in K.G.C. Reid (and contributors) (1996) The Law of Property in Scotland (Edinburgh: Butterworth), pp. 56–57.
38.Nonetheless, G. Gretton said in 1996 that only in one country has feudalism survived in any real sense, and that was in Scotland.
39.Abolition of Feudal Tenure etc. (Scotland) Act 2000, ss. 1, 2 (1). Reid, Ref. 36, p. 8.
40. Maitland, F.W. (1909) The Constitutional History of England (Cambridge: Cambridge University Press), p. 538.
41.And any sale of Crown land is subject to the prohibition of the Crown Lands Act 1702, s. 5 (in England and Wales). In Scotland dealings with land by the Crown is allowed, Abolition of Feudal Tenure etc. (Scotland) Act 2000, s. 59.
42. Grotius, H. (2005) The Right of War and Peace (De Juri Belli ac Pacis), book 2, edited by R. Tuck (Indianapolis: Liberty Fund), book 2, chapter 3, sections IV.1, pp. 456–457. Modern legal doctrine still adheres to the strict separation between property and sovereignty, e.g. G. Jellinek (1960) Allgemeine Staatslehre, 3rd ed. (Bad Homburg: Hermann Gentner Verlag), pp. 398–399: power over a territory by a state is not dominium (property) but imperium (sovereignty). See also A. Rahmatian (2017) Indirect sovereignty through property rights. Notre Dame Journal of International and Comparative Law, 7(2), pp. 58–90 at p. 77.
43.On the legal refinement of the doctrine of the king’s two bodies in relation to the Duchy of Lancaster, see E. Kantorowicz (1997) The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton, NJ: Princeton University Press), pp. 403–406.
44.Abolition of Feudal Tenure etc. (Scotland) Act 2000, s. 58 (1), (2).
45. Loughlin, M. (2010) Foundations of Public Law (Oxford: Oxford University Press), pp. 246247; A.F. Pollard (1926) The Evolution of Parliament, 2nd ed. (London: Longmans, Green and Co.), pp. 51–52, 62. For a short account, see Lord Longford (F. Pakenham) (1999) A History of the House of Lords (Stroud: Sutton), pp. 27–30, 35–39.
46. Scotland Act 1998, s. 1(1). On the fact that the Scottish Parliament is sustained by, and dependent on, the parliamentary sovereignty of the British Parliament, see Section 3.
47.Scotland Act 1998, s. 1 (1).
48. Bodin, J. (1955) Six Books of the Commonwealth, translated and edited by M.J. Tooley (Oxford: Basil Blackwell), book 1, chapter 8, pp. 25–27.
49. Hobbes, T. (2012) On the Citizen (De Cive), translated and edited by R. Tuck and M. Silverthorne (Cambridge: Cambridge University Press), chapter 6, section 15, p. 85; T. Hobbes (2008) The Elements of Law Natural and Politic (Human Nature, De Corpore Politico), edited by J.C.A. Gaskin (Oxford: Oxford University Press), part II, ‘De Corpore Politico’, chapter 24, sect. 2, p. 137.
50. Locke, J. (2013) Two Treatises of Government, 2nd edn, edited by P. Laslett (Cambridge: Cambridge University Press), ch. 7, § 87, ch. 8, § 119, pp. 323, 347.
51. Rousseau, J.-J. (2011) The Discourses and other Early Political Writings, edited by V. Gourevitch (Cambridge: Cambridge University Press), Second Discourse, part II, pp. 161, 169.
52. Rousseau, J.-J. (1968) The Social Contract, translated and edited by M. Cranston (London: Penguin Books), ch. I, 4, 9, pp. 54, 66.
53. Hegel, G.W.F. (1986) Grundlinien der Philosophie des Rechts (Werke 7) (Frankfurt am Main: Suhrkamp Verlag), § 41, § 46, § 65-68, § 73, pp. 102, 107–108, 140–146, 156.
54. Marx, K. (2004) Ökonomisch-philosophische Manuskripte (1844). In: I. Fetscher (Ed.), Karl Marx, Friedrich Engels, Studienausgabe, vol. 2 (Berlin: Aufbau Verlag), pp. 7790.
55.See also N. Walker (2014) Our constitutional unsettlement. Public Law, pp. 529–548, at pp. 530–536, discussing the weakening of absolute parliamentary sovereignty. Compare T. Hobbes (2012) On the Citizen (De Cive), translated and edited by R. Tuck and M. Silverthorne (Cambridge: Cambridge University Press), chapter 9, sections 10–11, p. 112. On the difference between sovereignty of the state (and parliamentary sovereignty is an application of that notion) and popular sovereignty, see H. Heller (1971) Souveränität. In: H. Heller, Gesammelte Schriften, vol. 2 (Leiden: A.W. Sijthoff), pp. 31–202, at pp. 92–99.
56.For example, US Constitution, Preamble; German Basic Law (Grundgesetz), Preamble and Art. 20; French Constitution 1958, Art. 3; Austrian Constitution of 1920/1929, Art. 1.
57.The Supreme Court’s narrative on this matter is in R. (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] HRLR 2, para. 41: ‘… over the centuries, those prerogative powers, collectively known as the Royal prerogative, were progressively reduced as Parliamentary democracy and the rule of law developed. By the end of the 20th century, the great majority of what had previously been prerogative powers, at least in relation to domestic matters, had become vested in the three principal organs of the state, the legislature (the two Houses of Parliament), the executive (ministers and the government more generally) and the judiciary (the judges).’
58. Dicey, A.V. (1985) Introduction to the Study of the Law of the Constitution, 10th edn (Basingstoke and London: Macmillan), pp. 4142. See also R. (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] HRLR 2, para. 43, with reference to the classical definition by A.W. Dicey.
59.More precisely ‘The Crown in Parliament’, as discussed by A.V. Dicey (1985) Introduction to the Study of the Law of the Constitution, 10th edn (Basingstoke and London: Macmillan).
60.The European Union Referendum Act 2015 is silent about the legal effect of the referendum.
61. Renner, K. (1949) The Institutions of Private Law and their Social Functions (London: Routledge and Kegan Paul), pp. 7577, 252–254, 257, who developed this idea in relation to property, but this idea is also relevant to constitutional institutions. See also O. Kahn-Freund (1949) Introduction, and notes. In K. Renner (Ed.), The Institutions of Private Law and their Social Functions (London: Routledge and Kegan Paul), pp. 5, 96–97, 263.
62. Kahn-Freund, O. (1944) Some reflections on company law reform. Modern Law Review, 7, pp. 5466, at pp. 55, 58–59, criticizes the rule of separate legal personality because of its effects.
63. Davies, P., and Worthington, S. (2012) Principles of Modern Company Law (Gower & Davies), 9th edn (London: Sweet & Maxwell), p. 207.
64. Berle, A.A. and Means, G.C. (1933) The Modern Corporation and Private Property (New York: Macmillan), pp. 278–279, 281, 285.
65.See, for example, the challenges of the EU fiscal stability measures as unconstitutional under the German constitution before the German Constitutional Court, discussion in A. Rahmatian (2017) Indirect sovereignty through property rights. Notre Dame Journal of International and Comparative Law, 7(2), p. 70, with further references.
66. Ganshof, F.L. (1964) Feudalism, 3rd edn, translated by Ph. Grierson (London: Longman), p. 106: fief (beneficium) – as opposed to the personal element in feudalism, vassalage (homage and fealty).
67.See also discussion by M. Loughlin (1999) The state, the crown and the law. In: M. Sunkin and S. Payne (Eds.), The Nature of the Crown: A Legal and Political Analysis (Oxford: Oxford University Press), p. 35. Modern British constitutional theory is obviously more advanced and sophisticated.
68. Kelsen, H. (1992) Reine Rechtslehre (Wien: Österreichische Staatsdruckerei), pp. 283284, 289.
69.For example, B. de Jouvenel (1993) On Power. The Natural History of Its Growth, translated by J.F. Huntington, for original French Du Pouvoir. Histoire Naturelle de sa Croissance (Indianapolis: Liberty Fund), pp. 31–33.
70.The manor denoted a jurisdictional or economic entity and played a role in feudal society although it was not part of the feudal pyramid.
71. Payne, S. (1999) The Royal Prerogative. In: M. Sunkin and S. Payne (Eds.), The Nature of the Crown: A Legal and Political Analysis (Oxford: Oxford University Press), pp. 77110, at pp. 77, 78.
72.It has, however, been adopted by the UK Supreme Court in 2017, see R. (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] HRLR 2, paras. 41–43.
73. R. (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] HRLR 2. The government’s position is set out in para. 34. The matter became a constitutional formality, because the European Union (Notification of Withdrawal) Act 2017 went through Parliament unopposed, saying in s. 1 that the Prime Minister may notify under Art. 50 (2) the UK’s intention to withdraw from the EU, which is the same result as initially sought by the government, but now only with agreement by Parliament.
74.For example, N. Barber, T. Hickman and J. King, Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role, UK Constitutional Law Blog (27 June 2016) (available at https://ukconstitutionallaw.org/) (accessed 17 Jan. 2018).
75.Professor A. McHarg and Professor A. Tomkins in P. Nicholson (2016) Brexit: a full menu. Journal of the Law Society of Scotland, 18 July 2016, pp. 12–15.
76. R. (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] HRLR 2, paras. 47–48, 67–68, 81, 86–88, 93, 101.
77. R. (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] HRLR 2, para. 49.
78. Tomkins, A. (2005) Our Republican Constitution (Oxford and Portland, Oregon: Hart Publishing), p. 132, is in favour of the abolition of all prerogative powers of the Crown by Parliament.
79.Ch. de Montesquieu (1977) The Spirit of Laws, edited by D.W. Carrithers (Berkeley: University of California Press), Book 11, chapter 6, pp. 202, 213.
80.The English Parliament itself embodied the executive (King-in-Parliament) and had a judicial role as a high court of justice, see M. Loughlin (2010) Foundations of Public Law (Oxford: Oxford University Press), pp. 247–251. The Supreme Court in R. (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] HRLR 2, para. 41, sets out the British constitutional system in a modern way with a clear separation of powers – an example of the versatility of the British constitution which allows for a wide variety of interpretations.
81.As enacted by the Constitutional Reform Act 2005, s. 23.
82. Müller, A.H. (2006) Die Elemente der Staatskunst, vol. 1 (Hildesheim, Zürich, New York: Georg Olms Verlag) (facsimile reprint of the 1809 edition), pp. XVIII–XIX (own translation).
83.A big difference is that Müller was a representative of the Romantic period, while de Maistre detested Romanticism and adhered to ideals of classicism, see I. Berlin (1991) Joseph de Maistre and the origins of fascism. In: H. Hardy (Ed.), The Crooked Timber of Humanity (London: Fontana Press), pp. 91–174, at p. 93.
84. Principe, L.M. (2013) The Secrets of Alchemy (Chicago and London: The University of Chicago Press), pp. 83, 89, 116, 160, 168–169.
85.See J. Goldsworthy (2002) The Sovereignty of Parliament. History and Philosophy (Oxford: Clarendon Press), pp. 247, 254, discussing the relevance of an official consensus on principles such as democracy, justice and the rule of law on the validity and the enforcement of statues passed by Parliament. The opinion of UK constitutional lawyers is that democracy is a fundamental principle of the UK constitution, e.g. M. Elliott (2015) The principle of parliamentary sovereignty in legal, constitutional, and political perspective. In: J. Jowell, D. Oliver and C. O’Cinneide (Eds), The Changing Constitution, 8th edn (Oxford: Oxford University Press), pp. 38–66, at p. 43. This view is naïve.
86.The traditional ceremony of the Queen’s speech in Parliament would be a good example.
87. Craig, P. and De Búrca, G. (2015) EU Law: Text, Cases, and Materials, 6th edn (Oxford: Oxford University Press), pp. 119123.
88. Follesdal, A. and Hix, S. (2006) Why there is a democratic deficit in the EU. Journal of Common Market Studies, 44(3), pp. 533562, at pp. 534–537.
89.For example, G. Baczynska and L. Kelly (2017) Poland could be stripped of EU voting rights after abolishing judiciary’s independence. The Independent, 20 July 2017.
90.The European Conservatives and Reformists Group, see for example, http://ecrgroup.eu/ and http://news.bbc.co.uk/1/hi/world/europe/4665818.stm (22 June 2009) (both visited 17 January 2018).
91.See also F.A.R. Bennion (2009) Understanding Common Law Legislation. Drafting and Interpretation (Oxford: Oxford University Press), pp. 7, 15.
92. Rahmatian, A. (2004) Codification of private law in Scotland: Observations by a civil lawyer. Edinburgh Law Review, 8, pp. 2856, at p. 52.
93. Loughlin, M. (2010) Foundations of Public Law (Oxford: Oxford University Press), p. 271, discusses the view that parliamentary sovereignty is a creature of the common law and its detailed contents and limits are ascertained by the courts.
94.Sir Roger Scruton, in a BBC Radio 4 interview with Patrick Wright in the broadcast ‘The English Fix’, 14 September 2017 (own transcription, minutes 7:41–9:18), http://www.bbc.co.uk/programmes/b0939wgl (accessed 17 January 2018).
95.For example, H. Coing (1973) Roman law as Ius Commune on the continent. Law Quarterly Review, 89, pp. 505–517, at p. 515; H. Coing (1985) Europäisches Privatrecht, Vol. I (München: C.H. Beck), p. 7; R. Zimmermann (1996) Savigny’s legacy. Legal history, comparative law, and the emergence of a European legal science. Law Quarterly Review, 112, pp. 576–605, at pp. 581, 588–589, 591, 596–598, 602.
96.For example, P. Caroni (1994) Der Schiffbruch der Geschichtlichkeit. Anmerkungen zum Neo-Pandektismus (Diskussion). Zeitschrift für Neuere Rechtsgeschichte, 16, pp. 85–100, at pp. 90, 98; W. Brauneder (1997) Europäisches Privatrecht: Historische Wirklichkeit oder zeitbedingter Wunsch an die Geschichte? (Roma: Centro di studi e ricerche di diritto comparato e straniero: Saggi, Conferenze e Seminari, vol. 23), pp. 1–22, at pp. 4–7, 8–9, 19. On that discussion, see also A. Rahmatian (2007) Friedrich Carl v. Savigny’s Beruf and Volksgeistlehre. The Journal of Legal History, 28, pp. 1–29, at pp. 19–20.
97.Brief introduction in English in A. Rahmatian (2004) Codification of private law in Scotland: Observations by a civil lawyer. Edinburgh Law Review, 8, p. 32–33, with further references.
98. Ogris, W. (1975) Die Rechtsentwicklung in Österreich 1848-1918 (Wien: Verlag der Österreichischen Akademie der Wissenschaften), p. 57; Th. Mayer-Maly (1980) Zeiller, das ABGB und wir. In: W. Selb and H. Hofmeister (Eds), Forschungsband Franz von Zeiller (1751-1828) (Wien, Graz, Köln: Hermann Böhlaus Nachfolger), pp. 1–13, at p. 10; K. Zweigert and H. Kötz (1998) Introduction to Comparative Law, 3rd edn, translated by T. Weir (Oxford: Clarendon Press), pp. 158–160. See W. Wagner (1980) Die Privatisierung des Lehnrechts. In: W. Selb and H. Hofmeister (Eds), Forschungsband Franz von Zeiller (1751-1828) (Wien, Graz, Köln: Hermann Böhlaus Nachfolger), pp. 226–247, at pp. 238, 240, on the removal of feudal law from general private law in the ABGB. See also § 1 of the General Civil Code (ABGB).
99.The application of the special rules on the fideicommissum (§ 618 ABGB) – most important for the nobility – became restricted during the nineteenth century, but these rules were repealed only in 1938. The feudal system itself was abolished in Austria-Hungary in 1867, see W. Ogris (1975) Die Rechtsentwicklung in Österreich 1848-1918 (Wien: Verlag der Österreichischen Akademie der Wissenschaften), pp. 64–65.
100.For example, J.E. Wilson (2016) India Conquered: Britain’s Raj and the Chaos of Empire (London: Simon and Schuster), pp. 310, 313–314. Even Indian judges administering the law alongside their British colleagues felt that and were not really equal partners, J.E. Wilson (2016) India Conquered: Britain’s Raj and the Chaos of Empire (London: Simon and Schuster), at p. 315.
101. Chanock, M. (1998) Law, Custom and Social Order. The Colonial Experience in Malawi and Zambia (Portsmouth, NH: Heinemann), pp. 46, 55, 71, 75, 77–78. More cautiously H.F. Morris (1972) The framework of indirect rule in East Africa. In: H.F. Morris and J.S. Read (Eds), Indirect Rule and the Search for Justice (Oxford: Clarendon Press), pp. 3–40, pp. 8, 24; J.S. Read (1972) Customary law under colonial rule. In: H.F. Morris and J.S. Read, Indirect Rule and the Search for Justice (Oxford: Clarendon Press), pp. 169–170, 175, 183, 207, 212.
102.See also A. Tomkins (2014) Scotland’s choice, Britain’s future. Law Quarterly Review, 130, pp. 215–234, at p. 219. Or the term ‘asymmetrical quasi-federalism’ is used, see R. Rawlings (2015) A coalition government in Westminster. In: J. Jowell, D. Oliver and C. O’Cinneide (Eds), The Changing Constitution, 8th edn (Oxford: Oxford University Press), pp. 194–221, p. 218.
103.Scotland Act 1998, ss. 1, 28–29. According to Ch. Himsworth and Ch. O’Neill (2009) Scotland’s Constitution: Law and Practice (Haywards Heath: Bloomsbury Professional), p. 14, ‘that Act can quite reasonably be described as a constitution for Scotland’. Contrary view in Imperial Tobacco Ltd. v. Lord Advocate [2012] CSIH 9, para. 71.
104.See, however, the discussion by J. St. Mill on federal systems in the nineteenth century, J. St. Mill (1998) Considerations on representative government. In: J. S. Mill, On Liberty and Other Essays, edited by J. Gray (Oxford: Oxford University Press), ch. 17, pp. 203–467, at p. 437.
105.That is the terminology of the Scotland Act 1998, see s. 29(2). See also N. Aroney (2014) Reserved matters, legislative purpose and the referendum on Scottish independence. Public Law, pp. 422–445, at pp. 423–424.
106.For example: Northern Region – parliament in Manchester; Midlands – parliament in Birmingham, and so on.
107.On the conflict of regional legislative powers with parliamentary sovereignty, see for example A. Tomkins (1999) Of constitutional spectres. Public Law, pp. 525–540, at p. 534; A. Tomkins (2014) Scotland’s choice, Britain’s future. Law Quarterly Review, 130, pp. 218, 220. See also N. Walker (2014) Our constitutional unsettlement. Public Law, p. 544: ‘absence of a formal federal system’; N. Aroney (2014) Reserved matters, legislative purpose and the referendum on Scottish independence. Public Law, p. 428: ‘the United Kingdom is certainly not a modern federal state’.
108. Willoweit, D. (2009) Deutsche Verfassungsgeschichte, 6th edn (München: C.H. Beck), p. 148.
109.See H. Mitteis (1953) Der Staat des Hohen Mittelalters, 4th edn (Weimar: Hermann Böhlaus Nachfolger), pp. 67, 256–257, 341, in relation to a possible origin of this evolution in feudal law. Modern scholarship has, however, qualified and partly rejected the (ahistorical) interpretation by older scholars, such as Mitteis, of possible different features of the French and the German feudal system in view of the later development of the nation state, see St. Patzold (2012) Das Lehnswesen (München: C.H. Beck), pp. 96–102. Brief discussion also in A. Rahmatian (2015) Lord Kames: Legal and Social Theorist (Edinburgh: Edinburgh University Press), pp. 198–199, 260.
110.European Union (Withdrawal) Bill (HC Bill 5), s. 11 (1) (a) and (b). See J. Hunt (2017) Devolution. In: M. Dougan (Ed.), The UK after Brexit: Legal and Policy Changes (Cambridge-Antwerp-Portland: Intersentia), pp. 35–52, at pp. 47–48.
111. R. (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] HRLR 2, para. 150.
112.That is also the concept of the Scotland Act 1998, s. 28(7): ‘This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.’ See also the White Paper Scotland’s Parliament in 1997, Cm 3658, para. 42.
113. Dicey, A.V. (1985) Introduction to the Study of the Law of the Constitution, 10th edn (Basingstoke and London: Macmillan), p. 65, said about certain Acts, such as the Act of Union with Scotland of 1706, that they were ‘intended to give to certain portions of them more than the ordinary effect of statutes’, but showed that the British Parliament made amendments to the Act of Union and similar Acts subsequently, so this intention has no legal effect.
114.Scotland Act 1998, s. 63A (1) The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements. … (3) … it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.
115. R. (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] HRLR 2, para. 149.
116. R. v. Secretary of State for Transport, ex parte Factortame Ltd. (No. 2) [1991] 1 AC 603. See, for example, P. Craig and G. De Búrca (2015) EU Law: Text, Cases, and Materials, 6th edn (Oxford: Oxford University Press), pp. 116–119.
117.See also A. Tomkins (2014) Scotland’s choice, Britain’s future. Law Quarterly Review, 130, p. 216, on the Claim of Right of the Scottish Constitutional Convention in 1989 as an attempt to establish ‘constituent power’.
118.Scottish Government (2013) Scotland’s Future: Your Guide to an Independent Scotland. Scottish Government, November 2013.
119. Scottish Government (2013) Scotland’s Future: Your Guide to an Independent Scotland, p. 351. Other important passages are at pp. 22, 338, 351–370.
120.A small inclination towards federalism is the insertion of ss. (8) to s. 28 of the Scotland Act 1998 by the Scotland Act 2016 (Sewel convention): ‘But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.’ However, criteria such as ‘recognised’, ‘not normally’ and just ‘consent’ are still unacceptable to a modern federal constitutional system.
121.For Germany, see German Basic Law 1949, Art. 31. For Austria (in relation to the state constitutions), see Constitution of 1920/1929, Art. 99 (1).
122.Scotland Act 1998, s. 30, Schedule 5. This was also a reason why the Government enabled the Scottish Parliament to pass the Scottish Independence Referendum Act 2013 to ensure the legal basis of the referendum by having the Queen approving (with prior approval of both Houses of Parliament) an Order in Council: The Scotland Act 1998 (Modification of Schedule 5) Order 2013, 12 February 2013. See also N. Aroney (2014) Reserved matters, legislative purpose and the referendum on Scottish independence. Public Law, pp. 423, 426.
123.Under the Compromise, the ‘dual monarchy’ consisted of the emperor/king (Francis-Joseph I, until 1916, Emperor of Austria and King of Hungary), and the common ministers of foreign affairs, defence, and a common finance ministry solely for the army, navy and diplomatic expenditures.
124. Hellbling, E.C. (1974) Österreichische Verfassungs- und Verwaltungsgeschichte, 2nd edn (Wien-New York: Springer Verlag), pp. 396398; E. Zöllner (1990) Geschichte Österreichs, 8th edn (Wien-München: Verlag für Geschichte und Politik-R. Oldenbourg Verlag), pp. 411–413. See a more contemporaneous analysis of the Austro-Hungarian Compromise by K. Renner (published under the name Rudolf Springer) (1906) Grundlagen und Entwicklungsziele der Österreichisch-Ungarischen Monarchie (Wien and Leipzig: Franz Deuticke), pp. 43–47.
125.The Scottish Independence Referendum Act 2013 is silent as to the effects of the referendum. See also A. Tomkins (2014) Scotland’s choice, Britain’s future. Law Quarterly Review, 130, p. 223, on the Draft Referendum Bill consultation paper.
126.That was the question in the 2014 independence referendum, see Scottish Independence Referendum Act 2013, s. 1 (2).
127.For example, the Spanish Constitution, as its Art. 155 shows, has no such a procedure, which became apparent in the Catalonia crisis in autumn 2017. The Canadian Supreme Court decided in the case of Quebec Secession Reference [1998] 2 SCR 217, that such a process to secede must be constitutionally provided.
128.See also A. McHarg (2012) The referendum: Memorandum of Agreement and Draft Section 30 Order. 16 October 2012; Ch. Bell (2012) The legal status of the ‘Edinburgh Agreement’. 5 November 2012, both at Scottish Constitutional Futures Forum, http://www.scottishconstitutionalfutures.org/ (visited 17 January 2018).
129. Fotheringham, A. (2017) Catalonia suspends declaration of independence from Spain. The Independent, 10 October 2017.
130.Scottish Government (2013) Scotland’s Future: Your Guide to an Independent Scotland. Scottish Government, November 2013, pp. 22, 45.
131.Scottish Government (2013) Scotland’s Future: Your Guide to an Independent Scotland. Scottish Government, November 2013, pp. 13, 53, 219.
132. Shaw, M.N. (2008) International Law, 6th edn (Cambridge: Cambridge University Press), pp. 207, 444, 960, 974; J.R. Crawford (2007) The Creation of States in International Law (Oxford: Oxford University Press), p. 383. Specifically with regard to Scotland, A. Rahmatian (2012) The English pound in an independent Scotland. Journal of International Banking Law and Regulation, 27(9), pp. 336–339, at p. 336; A. Tomkins (2014) Scotland’s choice, Britain’s future. Law Quarterly Review, 130, p. 231. An independent Scotland, if recognised by the international community, would be a new state, having seceded from the rest of the UK as the continuing state.
133.For example, European Parliament, Parliamentary Questions, Subject: Status of the United Kingdom if Scotland leaves, 29 October 2012, available at: http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=P-2012-009862&language=EN (accessed 17 January 2018). Letter of the then EU Commission President José Manuel Barroso to Lord Tugendhat, House of Lords, 10 December 2012.
134.European Commission Statement 17/3626, 2 October 2017: An independent Catalonia would be outside the EU.
135.For example, S. Carrel (2014) It’s Scotland’s pound and we’re keeping it, says Alex Salmond: First minister indicates independent Scotland would use sterling even if formal sterling zone was rejected by UK government. The Guardian, 7 August 2014; J. Swinney, SNP Finance Secretary in Eddie Barnes, The Scotsman, 2 February 2012. Swinney also ruled out joining the euro for the foreseeable future.
136.About Brexit: S. Coates (2016) ‘Have cake and eat it’ – aide reveals Brexit tactic. The Times, 29 November 2016. About the Scottish independence referendum: Editorial, ‘Scotland cannot have it both ways: Independence involves harder choices than SNP admits’, Financial Times, 26 November 2013.
137.‘For now they are restricting themselves to propaganda and signposts in Gaelic that no one really needs. But as a Jew who has relatively short roots in Scotland, and with friends and family in England and Israel, as much as I feel Scottish on the outside, I fear that one day people will start asking: “How Scottish are you?”’, quoted in A. Pfeffer (2012) Jews on Scottish independence: More faintheart than Braveheart. Haarez, 26 October 2012.
138.Union with Scotland Act 1706, Arts. 18, 19.
139. A good summary of this movement by one of its critics, McCall Smith, A. (1976) Scots law in comparative context. In: J.P. Grant (Ed.), Independence and Devolution. The Legal Implications for Scotland (Edinburgh: W. Green), pp. 153161, at pp. 153–154.
140.In fact, especially the provisions on moveable or personal property in the Sale of Goods Act clearly show Roman-law concepts and thinking.
141.The argument is s. 17 and s. 18, rule 1 of the Sale of Goods Act 1979.
142.J. Viscount of Stair (1981) The Institutions of the Law of Scotland, edited by D.M. Walker (Edinburgh and Glasgow: The University Presses of Edinburgh and Glasgow), book II, 3, 14, p. 337.
143. Anon (1889) Current topics: Sale of Goods Bill. Juridical Review, 1, p. 311.
144.Austrian General Civil Code (ABGB), §§ 380, 424, 425.
145.Compare my article (also on the value of the Austrian Civil Code for Scots law), A. Rahmatian (2004) Codification of private law in Scotland: Observations by a civil lawyer. Edinburgh Law Review, 8, p. 32, which had no influence in Scotland at all.
146.This may explain why many European academics at Scottish law schools have not engaged much with Scots private law, as H.L. MacQueen (2017) Quo vadis? Juridical Review, 1, pp. 9–19, at p. 14, remarked.
147. Rahmatian, A. (2007) Friedrich Carl v. Savigny’s Beruf and Volksgeistlehre. The Journal of Legal History, 28, pp. 2425; A. Rahmatian (2007) Universalist norms for a globalised diversity: On the protection of traditional cultural expressions. In: F. Macmillan (Ed.), New Directions in Copyright Law, vol. 6 (Cheltenham: Edward Elgar Publishing), pp. 199–231, at pp. 209–210; A. Rahmatian (2015) Lord Kames: Legal and Social Theorist (Edinburgh: Edinburgh University Press), pp. 14–15; A. Rahmatian (2017) The political purpose of the ‘mixed legal system’ conception in the law of Scotland. Maastricht Journal of European and Comparative Law, 24(6), pp. 843863.
148.The national-socialist government made the Weimar constitution ineffective by passing various acts under emergency legislation, starting with the Emergency Decree or ‘Ermächtigungsgesetz’ (Verordnung des Reichspräsidenten zum Schutz von Volk und Staat) of 28 February 1933 (RGBl. I S. 83). A few articles of the Weimar Constitution still apply, see Art. 140 German Basic Law 1949.
149. Fraenkel, E. (2010) The Dual State. A Contribution to the Theory of Dictatorship (Clark, NJ: Lawbook Exchange), pp. 3, 65.
150.For example, Federalist No. 10 (Madison), Federalist No. 19 (Madison), Federalist No. 69 (Hamilton), see A. Hamilton, J. Madison and J. Jay (2003) The Federalist Papers (New York: Bantam Classic), pp. 53, 108, 418–420, 423.
151. Craig, P. and De Búrca, G. (2015) EU Law: Text, Cases, and Materials, 6th edn (Oxford: Oxford University Press), pp. 8, 5051.
152.As also confirmed by the Constitutional Reform Act 2005, s. 1. On the rule of law (legality, certainty, equality, access to justice for enforcement of rights), see for example J. Jowell (2015) The rule of law. In: J. Jowell, D. Oliver and C. O’Cinneide (Eds), The Changing Constitution, 8th edn (Oxford: Oxford University Press), pp. 13–37, at pp. 19–24.
153.Kames (Lord Kames, Henry Home) (1763) Essays upon Several Subjects concerning British Antiquities, Appendix, 3rd ed. (Edinburgh: A. Kincaid and J. Bell), pp. 201, 203 (emphasis added). The text was first published in 1747. Here cited after the 3rd edn of 1763: the passage ‘which is that of self-preservation’ was added in the 1763 edition.

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