The Civilian Tradition and Scots Law

Transcription

1 The Civilian Tradition and Scots Law Aberdeen Quincentenary Essays Edited by David L. Carey Miller Reinhard Zimmermann Duncker & Humblot Berlin

2 Table of Contents Introduction A Scottish Celebration of the European Legal Tradition By David L. Carey Miller II. Where the Civilian Tradition Stands Cultural Identity Terminology, Labels and Maxims Foundation Influence Substantial Reception 33 III. The Dynamic of Scots Law 45 IV. Conclusion 49 The Foundation of Law Teaching at the University of Aberdeen By Hector L MacQueen I- The Elphinstonian Foundation 53 II. Law Teaching in King's College ca III. The Background to Law Teaching in Aberdeen 63 IV. The Civil Law Tradition in Medieval Scotland Looking Back: The Influence of Roman Law and Roman Legal Thinking in Europe The Medieval Rediscovery of the Roman Civil Law By Peter G. Stein I- Introduction n. Roman Law in the Early Middle Ages HI. The Recovery of the Digest 1 The Discovery of the Digest The Teaching of the Digest 79 IV. The Law School Becomes a University V. The Effect of the Glossators on Roman Law 1 The Structure of Teaching at Bologna Explaining the Texts 83 VI. Post-Glossatorial Developments 1 The Influence of Bologna The Commentators ^

3 10 Table of Contents The General Influence of Roman Institutions of State and Public Law By David Johnston 87 II. Ius publicum Classical Roman Law The Later Development of ius publicum Summary 90 III. Institutional and Constitutional Questions Sovereignty and the Power of the Emperor General Theories of imperium and iurisdictio in Classical Roman law 92 (a) Imperium 92 (b) Iurisdictio 93 (c) Conclusions The Later Development of Public Law Concepts - Use of the Roman Texts and Terms Bartolus Jean Bodin 99 IV. Conclusions The Development of European Private Law: A Romanist Watershed? By Robert Feenstra II. The bonafide Buyer of Moveable Property Early Germanic Law The Later Middle Ages 107 III. The European Science of Private Law Starting Points of the European Science of Private Law Other Watersheds 112 (a) Legal Humanism 113 (b) Natural Law 114 IV. Conclusions 115 The Canon Law Vehicle of Civilian Influence with Particular Reference to Scotland By J. J. Robertson II. The Scottish Dimension 118 III. Canonical Procedure in Scotland 118 IV. Scotland and the Sacra Romana Rota 121 V. Conclusion 125 Appendix Appendix A Comparison of the Influence of Roman Law in England and Scotland By William M. Gordon II. Roman Law Roman Law and Civil Law The Civilian Tradition 137 III. Scotland 1. Early Scots Law The Institutional Period The Effect of the Union with England The European Union 142 J39

4 IV. England Table of Contents English Law in Splendid Isolation? The Use of Civil Law in England Legal Education and Interest in Civilian Ideas 144 V. Conclusion 247 J42 The Resilience of the Scottish Common Law By W. D. H. Sellar 149 I. The Emergence of a Scottish Common Law 149 II. The Symbolism of the Crown 151 III. Scottish Common Law and English Common Law 153 IV. Scottish Common Law and Celtic Customary Law 156 V. The Influence of Canon Law and Civil Law 157 VI. Sir John Skene's Views on the Scottish Common Law 159 VII. Thomas Craig and His Views on the Scottish Common Law Scottish Common Law and English Common Law Feudal Law and Civil Law The Hierarchy of Sources 162 Taking Stock: The Significance of the Civilian Tradition in England, Scotland, and Continental Europe More Logic and Less Experience: The Difference between Scots Law and English Law By Peter B. H. Birks I. Instability and Indifference to Classification 167 II. The Scottish Institutional Tradition 171 III. Listsof Actions IV. The Roman Response 179 V. The English Response 180 VI. The English Overview Tradition 181 VII. Seven Foundations 185 VIII. Reviving Knowledge of the Roman Institutional Scheme The Civil Law Tradition in Scottish Legal Thought By John W. Cairns II- The MiddleAgesto the 16th Century III- The 17th Century 1. Sir Thomas Craig Viscount Stair Sir George Mackenzie 207 IV. The 18th Century 1. John Spotswood John Cuninghame Alexander Bayne William Forbes Lord Bankton John Erskine 218 V Conclusion: From Practical to Educational Value 220 ] 9 ]

5 12 Table of Contents The Use of the Civil Law in Scottish Courts By Alan Rodger II. The 19th Century 226 III. Individual Contributions 227 IV. Civilian Aspects of Scots Law 230 V. The South African Way 232 VI. Civilian Texts and the Courts' Decisions 233 VII. Brocards and Maxims 234 VIII. Classical Roman Law 236 Placing the Civilian Influence in Scotland: A Roman-Dutch Perspective By Daniel Visser 239 I. Through Panes of Slightly Irregulär Glass, Or: Can the Civil Law Influence in Scotland and South Africa Be Compared? 239 II. The Structure of Scots and South African Law Institutional Writings as a Source of Law Content-Based Reasons 244 (a) The Morgan Guaranty Case 245 (b) The Willis Faber Case Content-Independent Reasons - South Africa Content-Independent Reasons - Scotland Summary 252 III. The Effect of the Structure of the Law on its Development Mixed Legal' Systems The Effect of the Complex Component Structure - South Africa The Effect of the Complex Component Structure - Scotland 255 IV. And What About the Future? 256 The Civil Law in European Codes By Reinhard Zimmermann 259 I. The European Codes: Background and Significance 259 II. Civil Law and the Civilian Tradition The Meaning of Civil Law Characteristic Features of the Civil Law Civil Law and Civil Code 264 III. Roman Roots I: Common Origins 267 IV. Roman Roots II: Two Sets of Rules Duties and Liabilityofa Seiler Breach of Contract Initial Impossibility of Performance 270 V. Roman Roots III: Interpreting the Sources Vicarious Liability Transfer of Ownership and Payment of Purchase Price 273 VI. Roman Roots IV: Different Layers of Tradition The Abstract and the Causal System The Consensual System 275 VII. Roman Roots V: More Ambiguity Mora Creditoris Set-off 277

6 Tableof Contents 13 VIII. The Process of Generalization The Evolution of the Law of Delict The Evolution of the Law of Contract The Evolution of the Law of Unjustified Enrichment 282 IX. The Ambivalence of Generalization Specific Performance Contracts in Favourof Third Parties 284 X. Intellectual Unity Beyond Codification Roman Law, Natural Law and Pandectist Legal Science Factors Counterbalancing the Nationalistic Isolation 287 XI. New Legal Rules 289 XII. Main Features of a European Law of Obligations 290 Civilian Elements in European Civil Procedure By Jemen M.J.Chorus 295 I. Common Historical Roots 295 II. Recent Steps Towards Harmonization Harmonization of Procedural Law within the European Union Civilian and Common Law Procedure 297 III. Civilian Stock in European Civil Procedure Characteristics of Civilian Procedure Draft Rules of the Storme Working Group IV. Conclusion The Future: The Civilian Tradition in European Community Law The Role and Relevance of the Civil Law Tradition in the Work of the European Court of Justice By David A. O. Edward II. Why the Civil Law isnot an Influence III. The Brüssels Convention on Jurisdiction and the Recognition and Enforcement of Judgments IV. The Real Civilian Influence 1. System and Coherence Obligations, Rights and Remedies 318 V. Conclusion ' The Influence of the Civil Law, via Modem Legal Systems, on European Community Law By John A. Usher II. A Law for Citizens? III. Style and NatureofE.C. Law

7 14 Tableof Contents IV Property Rights Possession and Ownership Extent and Restrictions 328 V. Contract and Delict Contractual Liability Non-Contractual (Delictual?) Liability Fault 336 VI. National Influence on E.C. Legislation General Companies 339 VII. Judicial Process and Organization Court Structures and Remedies Precedent General Principles - Legal Professional Privilege 347 VIII. Conclusions 350 The Development of Civil Law Principles at the National and Community Level: Achieving a Balance By Lord Mackenzie-Stuart II. Civil Law and Public Law 352 III. The Problems as Seen in Civilian and Common Law Systems Dissenting Opinions The Advocate General Rights of Audience Precedent Judicial Style 360 IV. Administrative Law Recent Developments in England The European Sources of Administrative Law European Principles and the English Courts 362 V. Conclusion 364 Table of Cases 367 Index 371 List of Contributors 393