Introduction

It is a crucial aspect of the history of Scots private law that in its history influences from the common law of England have been unavoidable from the beginning and waxed particularly strong after the Union of the Parliaments of the two kingdoms, with a common legislature, final court of appeal (the House of Lords) and the familiarity that comes from proximity, accessibility and a common language. But unlike English law, Scots law was also open from the very beginning to what was to become the Continental European ius commune (common law). The substance of the law was much affected by the universal law of the church (the canon law) and the Roman or Civil law taught in the Continental universities at which until the eighteenth century many Scots lawyers underwent their initial legal education. A further effect was that when Scots lawyers wrote treatises on their law, they used the systematics and concepts of the learned laws of Europe, further reinforcing its ius commune characteristics. If this Civilian dimension weakened after the 1707 Union, and in particular from the Victorian era on, Scots private law nonetheless remains significantly distinct from that of England, and in comparative law terms it is correctly classified as a ‘mixed’ system.

In 1924 the distinguished French comparatist Professor Lévy-Ullmann observed that ‘Scots law gives us a picture of what will be some day the law of the civilised nations, namely a combination between the Anglo-Saxon and the Continental system’.