Mixed but Not Codified: The Case of Scotland

Reid, Elspeth

doi:10.1007/978-94-007-7942-6_16

Elspeth Reid⁴

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 32))

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Abstract

In this collection of studies on codification Scotland is an obvious outsider. The Scottish legal system has no Codes – at least not in the sense of comprehensive legislation providing the fundamental structure for the entire legal system. Nonetheless, the civil law survives alongside the common law tradition in Scotland’s mixed legal system. The essential question considered by this essay is therefore how Scotland preserves its civil law as well as its common law character without the support of a civil code. First of all, however, some explanation is required of the nature of the Scottish mix and its historical origins.

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Notes

1.
For a history see K. Reid “The idea of mixed legal systems” Tulane Law Review 78 (2003) 5.
2.
Mixed Jurisdictions Worldwide, 2nd edn. ed. V.V. Palmer (Cambridge: Cambridge University Press, 2012) 3. The family includes South Africa, Scotland, Louisiana, Quebec, Puerto Rico, The Philippines, Botswana, Malta, Sri Lanka, Israel and others around the world.
3.
Notably Palmer Mixed Jurisdictions, note 2 supra, as well as the first edition of this work, Mixed Jurisdictions Worldwide ed. V.V. Palmer (Cambridge: Cambridge University Press, 2001); see also Mixed Legal Systems at New Frontiers, ed. E Örücü (London: Wildy, Simmonds and Hill, 2010).
4.
Founded in 2002: see http://www.mixedjurisdiction.org/.
5.
E.g. the World Society of Mixed Jurisdictions Jurists has held major conferences in New Orleans (2002), Edinburgh (2005), Stellenbosch (2009), Jerusalem (2011) and Valetta (2012).
6.
See review of Mixed Jurisdictions Worldwide, 1st edn, note 3 supra, by A. Rahmatian, Edinburgh Law Review 8 (2004) 427.
7.
R. Zimmermann, “‘Double Cross’: Comparing Scots and South African Law”, in Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa, ed. R. Zimmermann, D. Visser and K. Reid (Oxford: Oxford University Press, 2004), 1 at 4.
8.
See T.D. Fergus and G. Maher “Sources of law” in The Laws of Scotland: Stair Memorial Encyclopaedia, ed. T.B. Smith et al., Vol 22 (Edinburgh: Butterworths, 1987) paras 532–538.
9.
See W.D.H. Sellar, “Scots Law – Mixed from the Very Beginning? A Tale of Two Receptions” Edinburgh Law Review 4 (2000) 3; also N.R. Whitty, “The Civilian Tradition and Debates on Scots Law”, in two parts, Tydskrif vir die Suid-Afrikaanse Reg 1996 227 and 442; H.L. MacQueen, “Mixture or Muddle?: Teaching and Research in Scottish Legal History” Zeitschrift für Europäisches Privatrecht 5 (1997) 69.
10.
J.W. Cairns, “Historical Introduction”, in A History of Private Law in Scotland, ed. K. Reid and R. Zimmermannn (Oxford: Oxford University Press, 2000) 14 at 44–47; see also P. Stein, “The influence of Roman law on the law of Scotland” Juridical Review (1963) 205, reprinted in P.G. Stein, The Character and Influence of the Roman Civil Law: Historical Essays (London: Hambledon Press, 1988).
11.
APS ii 335, c.2 (available at http://www.rps.ac.uk/). See also J.W. Cairns, “Revisiting the Foundation of the College of Justice”, in Miscellany Five, ed. H.L. MacQueen (Edinburgh: Stair Society, Vol 52, 2006) 27.
12.
Cairns, “Historical Introduction”, supra note 10, at 70.
13.
J.W. Cairns, “Codification and Scottish Legislation”, Tulane European and Civil Law Forum 22 (2007) 1 at 5; J. Finlay, Men of Law in Pre-Reformation Scotland (East Linton: Tuckwell Press, 2000), 87–122.
14.
Finlay, Men of Law in Pre-Reformation Scotland, 228.
15.
Of 60 applicants between the years 1574 and 1608 for the status of advocate in the Court of Session, 20 had studied in French universities, most commonly Poitier, but also Bordeaux, Toulouse, and Paris. (R. Hannay, The College of Justice: Essays on the Institution and Development of the Court of Session (1933, reprinted Edinburgh: Stair Society, 1990) 146).
16.
R. Feenstra, “Scottish-Dutch legal relations”, first published in Academic Relations between the Law Countries and the British Isles 1450–1700. First proceedings of the First Conference of Belgian, British and Dutch Historians of Universities held in Ghent, Sept 30–Oct 2 1987, and reprinted (as part XVI) in Legal Scholarship and Doctrines of Private Law, 13th–18th Centuries (Aldershot: Variorum Press, 1996) On the failure of legal education to take root in the Scottish Universities prior to 1700 see J.W. Cairns, “Academic feud, bloodfeud, and William Welwood: legal education in St Andrews, 1560–1611” (in two parts) Edinburgh Law Review 2 (1998)158 and 255.
17.
A. Rodger, “Scottish advocates in the nineteenth century: the German connection” Law Quarterly Review 110 (1994) 563.
18.
See P. Stein “Influence of Roman Law on the Law of Scotland”, supra note 10.
19.
See Thomas Craig’s comparative analysis of the laws of Scotland and England, concluding that “There is not that difference between the laws of the two countries that is popularly supposed to exist”: De Unione Regnorum Britanniae Tractatus (1605, The Scottish History Society, 1909) 328.
20.
B. Levack, The Formation of the British State: England, Scotland and the Union, 1603–1707 (Oxford, Clarendon Press, 1987), 68–101.
21.
For a comprehensive survey of the development of the law in the seventeenth century see J.D. Ford, Law and Opinion in Scotland during the Seventeenth Century (Oxford: Hart, 2007).
22.
J. Blackie and N. Whitty, “Scots Law and the New Ius Commune”, in Scots Law into the 21st Century ed. H.L. MacQueen (Edinburgh: W. Green, 1996) 65–81. See also Whitty, “The Civilian Tradition and Debates on Scots law”, note 9 supra.
23.
A. Rodger, “The Use of the Civil Law in Scottish Courts”, in The Civilian Tradition and Scots Law, ed. D. Carey Miller and R. Zimmermann (Berlin: Duncker and Humblot, 1997), 225 at 231.
24.
E.g. MacQueen, “Mixture or Muddle?”, supra note 9, at 380–381.
25.
W.D.H. Sellar, “The Resilience of the Scottish Common Law” The Civilian Tradition and Scots Law ed. Carey Miller and Zimmermann, note 23 supra, 149; Sellar “Scots Law – Mixed From The Very Beginning?”, note 9 supra. See also Stair, Institutions 1.1.16 (note 76 infra) on the importance of Scots common law.
26.
Sellar “Resilience of the Scottish Common Law”, supra note 24, at 164.
27.
MacQueen, “Mixture or Muddle?”, supra note 9, at 380.
28.
For an example of the fruits of one such project see the collection of essays in Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa, ed. R. Zimmermann, D. Visser and K. Reid (Oxford: Oxford University Press, 2004).
29.
See Treat of Union, Article XVIII, and see also Lord Dervaird, “Afterword: Prospects for the Future”, in M.C. Meston, W.D.H. Sellar and Lord Cooper, The Scottish Legal Tradition, revised edn. by S.C. Styles (Edinburgh: Saltire Society, 1991) 91–93.
30.
See Cairns, “Historical Introduction”, supra note 10, 129–130.
31.
Whitty, “The Civilian Tradition and Debates on Scots Law”, supra note 9, at 231.
32.
A. Rodger “Thinking about Scots Law” Edinburgh Law Review 1 (1996) 3 at 14–15.
33.
A full treatment of this subject can be found in A. Dewar Gibb, Law from over the Border (Edinburgh: W. Green, 1950).
34.
See G.C.H. Paton, “The Eighteenth Century and Later”, in Introduction to Scottish Legal History ed. G.C.H. Paton, (Edinburgh: Stair Society, vol 20, 1958) 50 at 56–58.
35.
E.g. the Copyright Act of 1709 (8 Anne c 19) was common to Scotland and England, as was subsequent legislation on copyright and performing rights.
36.
Bills of Exchange Act 1892.
37.
See W.M. Gordon, “Sale”, in History of Private Law in Scotland, ed. Reid and Zimmermann, note 10 supra, Vol. 2, 305 at 328–321.
38.
An instance of this is the Lands Consolidation (Scotland) Act 1845 of which Lord Dunedin spared no criticism in Governors of George Heriot’s Trust v Caledonian Railway Company 1915 SC (HL) 52 at 65, and which Lord Johnston spoke of in Fraser v Caledonian Railway Co. 1911 SC 145 at 154 as “a very inartistic, if not careless, adaptation of an English Act to a totally different system of law and tenure”.
39.
W.D.H. Sellar, “A historical perspective”, in M.C. Meston, W.D.H. Sellar and Lord Cooper, The Scottish Legal Tradition, revised edn. by S.C. Styles (Edinburgh: Saltire Society, 1991) 29 at 55–56.
40.
See A.J. MacLean, “The 1707 Union: Scots Law and the House of Lords”, in New Perspectives in Scottish Legal History, ed. A. Kiralfy and H.L. MacQueen, (London: Cass, 1984), 50.
41.
Lord Gordon was appointed to the House in 1876, although the Lord President, Lord Colonsay, had been sent to the House of Lords to assist with Scottish appeals some years earlier, in 1867.
42.
See Constitutional Reform Act 2005.
43.
The Supreme Court website is at http://www.supremecourt.gov.uk/.
44.
See, e.g., Collins v Collins 1884 11 R (HL) 19, a House of Lords case in which the English counsel for one party was roundly criticised for citing English authorities and neglecting a clear line of Scots authorities to the opposite effect; or Glasgow Corporation v Barclay, Curle & Company Ltd 1923 SC (HL) 78, in which the Earl of Birkenhead refrained from arguing the English law, commenting: “In a Scotch appeal, raising some matters at least which are peculiar to the practice and law of Scotland, I am not prepared to set myself against so great a weight of authority [as that of the Scots Law Lords]. I do not, therefore, great as is the doubt which I have entertained, record a dissenting opinion”.
45.
See Rodger, “Thinking about Scots Law”, note 32 supra, at 16–17; Dewar Gibb, Law from over the Border, note 33 supra.
46.
1932 SC (HL) 31.
47.
E.g. in Dumbreck v Addie’s Collieries 1929 SC (HL) 51, the case that “anglicised” occupiers’ liability, the speeches of the two Scots on the Committee, Lords Dunedin and Shaw, were central in assuring their brethren in the House of Lords that English and Scots law were already at one in this area.
48.
British Justice: The Scottish Contribution (London: Stevens, 1961), 227.
49.
“History, historiography and comparative law”, in The State of Scots Law, ed. L. Farmer and S. Veitch, (Edinburgh: Butterworths, 2001) 75 at 87ff.
50.
See Lord Shaw of Dunfermline, “Law as the link of Empire”, reproduced in Law of the Kinsmen (London: Hodder and Stoughton, 1923, reprinted 1996), at 133. See esp 155–156.
51.
On the willing participation of the Scots in the codification of commercial law see A Rodger, “The codification of commercial law in Victorian Britain” Law Quarterly Review 108 (1992) 570.
52.
Introduction to Comparative Law, 3rd edn tr T. Weir (Oxford: Oxford University Press, 1998) at 204; see also J. Smits, “Scotland as a mixed jurisdiction and the development of European private law: is there something to learn from evolutionary theory?” Electronic Journal of Comparative Law 7(5) (2003) at http://www.ejcl.org/ejcl/75/art75-1.html.
53.
MacQueen, “Mixture or Muddle?”, supra note 9; see also R Evans-Jones, “Receptions of law, mixed legal systems and the myth of the genius of Scots private law” Law Quarterly Review 114 (1998) 228.
54.
Reid, “The idea of mixed legal systems”, note 1 supra, at 24.
55.
Scotland Act 1998s. 29. For further discussion see C. Himsworth, “Devolution and the mixed legal system of Scotland” 2002 Juridical Review (2002) 115. For an assessment of the first 10 years, see Law Making and the Scottish Parliament, ed. E Sutherland et al., (Edinburgh: Edinburgh University Press, 2011).
56.
See K.G.C. Reid, “The third profession: the rise of the academic lawyer in Scotland”, in Scots law into the 21st Century, ed. MacQueen, note 22 supra, 39.
57.
Available at www.scotlawcom.gov.uk/download_file/view/521/. The authors were Eric Clive, Pamela Ferguson, Christopher Gane, and Alexander McCall Smith. The history of the project and the fate of the draft is narrated in E. Clive, “Codification of Scottish criminal law” Scottish Criminal Law (2008) 747.
58.
A listing of that academic literature can be found in the article by Clive, “Codification”, note 57 supra.
59.
See E Clive, “Thoughts from a Scottish perspective on the bicentenary of the French Civil Code” Edinburgh Law Review 8 (2004) 415 at 418.
60.
See commentary in A Rahmatian, “Codification of private law in Scotland: observations by a civil lawyer” Edinburgh Law Review 8 (2004) 31; A Rodger, “The Bell of Law Reform” Scots Law Times (News) (1993) 339.
61.
See Stair Memorial Encyclopaedia, vol 22, note 8 supra, para 523.
62.
Scotland Act 1998, Sch 5.
63.
Scotland Act 1998 s 29.
64.
Scotland Act 1998 s 126(4). For proposals for further devolution of power to the Scottish Parliament in fiscal matters see the Scotland Bill before the UK Parliament at the time of writing (text at http://services.parliament.uk/bills/2010-11/scotland.html).
65.
See http://www.parliament.uk/about/how/laws/delegated/.
66.
See H.L. MacQueen, “Mixing it? Comparative law in the Scottish courts” European Review of Private Law 11 (2003) 735.
67.
Dalgleish v Glasgow Corporation 1976 SC 32.
68.
Glasgow Corporation v Central Land Board 1956 SC (HL) 1.
69.
See, e.g., Interpreting Precedents: A Comparative Study, ed. D.N. MacCormick and R.S. Summers (Aldershot: Dartmouth, 1997) containing a single chapter on the UK, by Z. Bankowski, D.N. MacCormick and G. Marshall at 315, which had little to say on Scottish difference.
70.
T.B. Smith, Judicial Precedent in Scots Law (Edinburgh: W. Green, 1952) 17 and 107–108.
71.
1994 SC 503.
72.
1995 SC 455.
73.
1997 SC (HL) 66.
74.
It should be added that this decision was much criticized at the time, and has now been deemed, by the House of Lords, to be restricted in authority to certain situations involving floating charges – securities granted by companies. See Burnett’s Trustee v Grainger 2004 SC (HL) 19.
75.
A translation from the Latin by Lord Clyde was published under the title The Jus Feudale (Edinburgh: W. Hodge, 1934).
76.
The edition most often used is the second, as revised by D.M. Walker (Edinburgh: University Presses of Edinburgh and Glasgow, 1981).
77.
As reprinted by the Stair Society, Edinburgh, Vols. 41–43, 1993–1995.
78.
8th edn. by J.B. Nicholson (Edinburgh: Bell and Bradfute, 1871).
79.
7th edn. by J. McLaren (Edinburgh: T. and T. Clark, 1870).
80.
The last edition by Bell himself was the 4th, although a further six followed at the hand of different editors. The 4th has recently been reprinted (Edinburgh: Edinburgh Legal Education Trust, 2010).
81.
Baron David Hume’s Lectures 1786–1822, ed. G.C.H. Paton (Edinburgh: Stair Society Vols. 5, 13, 15–19, 1939–1958) and Henry Home, Lord Kames’ Principles of Equity (Edinburgh: A. Kincaid and J. Bell, 1760), have not been universally recognised as Institutional in status, but in practice are accorded similar respect.
82.
For overview, see Cairns, “Historical Introduction”, note 10 supra, 170–171, and for more detailed treatment see J.W. Cairns, “Institutional Writings in Scotland Reconsidered” Journal of Legal History 4 (1983) 76. Indeed one twentieth century writer maintained that “the authority of an institutional writer is approximately equal to that of a decision by a Division of the Inner House of the Court of Session” (T.B. Smith, A Short Commentary on the Law of Scotland (Edinburgh: W. Green, 1962) 32).
83.
[2012] UKSC 50.
84.
For detailed treatment see K. Reid, “Property Law: Sources and Doctrine”, History of Private Law in Scotland, ed. Reid and Zimmermann, note 10 supra, vol 1, 185.
85.
K.G.C. Reid, The Law of Property (Edinburgh: Butterworths, 1996) para 2.
86.
Notably the Trusts (Scotland) Act 1921, Trusts (Scotland) Act 1961, For a full account see W.A. Wilson and A.G.M. Duncan, Trusts, Trustees and Executors, 2nd edn. (Edinburgh: W Green, 1995).
87.
K.G.C. Reid, “National Report for Scotland”, in Principles of European Trust Law, ed. DJ Hayton et al., (The Hague: Kluwer, 1999) 67 at 68.
88.
See G. Gretton “Trusts”, in History of Private Law in Scotland, ed. Reid and Zimmermann, note 10 supra, vol 1, 480; Scottish Law Commission, Discussion Paper on The Nature and Constitution of Trusts (Scot Law Com DP No 133, 2006) (available at http://www.scotlawcom.gov.uk/law-reform-projects/trusts/)
89.
See G. Gretton “Constructive Trusts” (in two parts) Edinburgh Law Review 1 (1997) 281 and 408.
90.
For discussion of the Scots rules on legitim, and their ius commune origins see the judgment of the Lord Ordinary, Lord Fraser, in Earl of Kintore v Countess Dowager of Kintore (1884) 11 Rettie 1013 (affirmed (1886) 13 Rettie (HL) 93). For extension of “legal rights” to same-sex civil partners see Civil Partnership Act 2004, s 131.
91.
Family Law (Scotland) Act 2006, s 29.
92.
As amended by the Sale and Supply of Goods Act 1994 and the Sale and Supply of Goods to Consumers Regulations 2002, with additional consumer protection contained in the Unfair Contract Terms Act 1977, and the Consumer Credit Act 1974 as amended by the Consumer Credit Act 2006.
93.
See W.W. McBryde, The Law of Contract in Scotland, 3rd edn (Edinburgh: W. Green, 2007) paras 1–21 – 1–27. For detailed treatment see in History of Private Law in Scotland, ed. Reid and Zimmermann, note 10 supra, vol 2, containing chapters on formation of contract, interpretation, error, force and fear, pacta illicita, unfair contract terms, breach, specific implement, third party rights, and restrictive covenants.
94.
For a comparative law discussion see K. Zweigert and H. Kötz, Introduction to Comparative Law, 3rd edn, tr T. Weir (Oxford: Oxford University Press, 1998) 389–99.
95.
See Requirements of Writing (Scotland) Act s 2.
96.
See Zweigert and Kötz, Introduction to Comparative Law, note 94 supra, 456–469.
97.
Contracts (Rights of Third Parties) Act 1999.
98.
See, e.g. Highland and Universal Properties Ltd v Safeway Properties Ltd 2000 SC 297.
99.
Requirements of Writing (Scotland) Act 1995.
100.
Land Registration (Scotland) Act 1979.
101.
See A. McAllister, Scottish Law of Leases 4th edn (Edinburgh: Bloomsbury Professional, 2010).
102.
With additional provision made in relation to “crofts” – small holdings in rural areas – by the Crofting Acts, most recently the Crofting Reform (Scotland) Act 2010.
103.
As discussed above. See Scotland Act 1998, Sch. 5. For the initial “Concordat” outlining the working arrangements between the Scottish Government and the UK Department of Trade and Industry, now the Department for Business, Innovation and Skills, see http://www.bis.gov.uk/files/file33008.doc
104.
The standard Scots textbook, W.C.H. Ervine, Consumer Law in Scotland 4th edn (Edinburgh: W. Green, 2008) narrates the historical background in chapter 1, pointing out that some of the earliest statutes of the Parliament of Scotland regulated matters such as weights and measures, and the policing of standards of safety for food and drugs has been the subject of legislation since the mid-nineteenth century.
105.
Final Report of the Committee on Consumer Protection (Cmnd 1781) (1962).
106.
Consumer Protection Act 1987, Part 1, (UK statute) implementing the Product Liability Directive 85/374/EEC (reinforced in terms of public law regulation by the General Product Safety Regulations 2005/1803).
107.
Consumer Credit Act 1974, (UK statute) a lengthy statute supplemented by numerous items of delegated legislation with regard to specific areas of control.
108.
Unfair Contract Terms Act 1977 (UK statute).
109.
The Trade Descriptions Act 1968, providing for criminal liability in relation to misdescription of goods has been supplemented by a variety of enactments, in some cases providing for criminal liability in specific circumstances (e.g., the Consumer Protection Act 1987, s 20, on misleading prices, and the Property Misdecriptions Act 1991), others providing for private law remedies (e.g., the Consumer Protection (Distance Selling) Regulations 2000/2334 provide that it is an offence to demand payment for unsolicited goods). See also the Enterprise Act 2002, Part 8, which gives various public bodies power to obtain orders restricting the activities of traders.
110.
See H.L. MacQueen and W.D.H. Sellar “Negligence”, in History of Private Law in Scotland, ed. Reid and Zimmermann, note 10 supra, vol 2, 515 at 547.
111.
1932 SC (HL) 31; [1932] A.C. 562.
112.
See A. Rodger, “Lord MacMillan’s speech in Donoghue v Stevenson” Law Quarterly Review 108 (1992) 236, also R Evans-Jones, “Roman Law in Scotland and England and the development of one law for Britain” Law Quarterly Review 115 (1999) 605 at 618–628.
113.
See, e.g., Stair, Institutions, 1.9.4 (note 76 supra).
114.
See J Blackie, “Unity in diversity: the history of personality rights in Scots law”, in Rights of Personality in Scots Law: A Comparative Perspective, ed. N R Whitty and R Zimmermann, (Dundee: Dundee University Press, 2009), 31.
115.
Rodger, “The Codification of Commercial Law”, note 51 supra, at 572.
116.
Report of the London Committee on the Scotch Bankrupt Bill (London: W. and S. Graves, 1814).
117.
First Report of the Commissioners Appointed to Inquire and Ascertain how far the Mercantile Laws in the Different Parts of the United Kingdom of Great Britain and Ireland may be Advantageously Assimilated (London: Her Majesty’s Stationery Office, 1854).
118.
See Rodger “The Codification of Commercial Law”, note 51 supra, at 576–7.
119.
M. Chalmers, “An Experiment in Codification” Law Quarterly Review 2 (1886) 125.
120.
Thus, for example, the appropriateness of the some of the changes made to the Scots law of sale by the introduction of the 1893 statute has been questioned, e.g., the Act applied the English rule that ownership passed with the contract, as distinct from the Scots rule by which ownership passed on delivery. There is a large literature on this subject, but see e.g. T.B. Smith, Property Problems in Sale (London: Sweet and Maxwell, 1978).
121.
See Association of British Insurers’ Codes of Practice (available at http://www.abi.org.uk/information/codes_and_guidance_notes/codes_and_guidance_notes.aspx).
122.
For an assessment of the first decade of law making by the Scottish Parliament in matters of Family Law see E Sutherland, “Child and Family Law”, in Law Making and the Scottish Parliament, ed. E. Sutherland, note 55 supra, 58.
123.
See http://scotland.gov.uk/Publications/2011/09/05153328/0
124.
According to Lord Irvine of Lairg, the then Lord Chancellor, House of Lords Debates, 3 Nov 1997, col 1228, echoing the Labour Party’s 1997 manifesto pledge. See also the UK Government White Paper, Rights Brought Home: The Human Rights Bill Cm 3782 (London: H.M.S.O., 1997).
125.
For general discussion see A. O’Neill, “Human Rights and People and Society”, in Law Making and the Scottish Parliament, ed. E. Sutherland, note 55 supra, 35.
126.
For recent discussion see Mitchell v Glasgow City Council 2009 SC (HL) 21; [2009] 1 AC 874, although there was held to be no duty in that case.
127.
For a more detailed introduction to the application of Convention rights in domestic law, see R. Reed and J. Murdoch, A Guide to Human Rights Law in Scotland, 3rd edn (Haywards Heath: Bloomsbury, 2011) ch 1; see also Attorney General’s Reference No 3 of 1999 [2009] UKHL 34; [2010] 1 AC 145 per Lord Hope at para. 18–19, Lord Brown at para 54.
128.
Campbell v MGN [2004] 2 AC 457 at para 17 per Lord Nicholls.
129.
Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) at para 7 per Eady J.
130.
McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73 at para 11 per Buxton LJ, citing Lord Woolf CJ in A v B plc [2003] QB 195 at para 4.
131.
Stair observed, the right to personal liberty was “a most precious right” although it was “not absolute” (Institutions, I,2,5., note 76 supra). Although the harm inflicted by deprivation of liberty was said by Stair to be “inestimable” (Institutions, I,9,4), damages were awarded for infringement (Institutions, I,2,16). See also the Act of the Parliament of Scotland of 1701 “For preventing wrongous Imprisonments and against undue delayes in trials” (Acts of the Parliament of Scotland, X, 272–5 (c.6)).
132.
Lord Woolf, “European Court of Human Rights on the occasion of the opening of the judicial year” European Human Rights Law Review (2003) 257 at 258.
133.
McBryde, Law of Contract, note 93 supra, para 19–41.
134.
McBryde, Law of Contract, note 93 supra, para 19–42.
135.
See Karl Construction Ltd v Palisade Properties Plc 2002 SC 270. On the other hand one particular recommendation to reform trust law was discounted due to a possible conflict with Article 1 of the First Protocol: see Scottish Law Commission, Report on Variation and Termination of Trusts (Scot Law Com No 206, 2007) paras. 5.12–5.15, discussed at G. Gretton and A. Steven, Property, Trusts and Succession (Haywards Heath: Tottel, 2009), para 31.18.
136.
For more specific discussion see E. Reid, Personality, Confidentiality and Privacy in Scots Law (Edinburgh: W. Green, 2010) chapters 14 and 15.
137.
See Adams v Guardian Newspapers Ltd 2003 SC 425, endorsing the approach to qualified privilege adopted in Reynolds v Times Newspapers Ltd [2001] 2 AC 127.
138.
H. Goudy, Ae. J.G. Mackay, and R. Vary Campbell, Addresses on Codification of Law (Edinburgh: Banks and Co, 1893); see also J. Dove Wilson, “Recent Progress of Codification” Juridical Review 3 (1891) 97.
139.
See Sect. 16.4.6. above.
140.
H. Goudy, “Codification: Its Meaning and History”, in Addresses on Codification, note 138 supra, 7 at 12.
141.
See A. Craig, “Codification of the Law”, in two parts, Journal of Jurisprudence 26 (1882) 281and 337.
142.
H. McGregor, A Contract Code: Drawn up on behalf of the English Law Commission (Milan: Giuffrè/Sweet and Maxwell, 1993).
143.
See comments in Lord Hope of Craighead, “The role of the Judge in developing Contract Law”, speech to the Contract Law Conference, Jersey, 15 Oct 10, available at http://www.supremecourt.gov.uk/docs/speech_101015.pdf.
144.
See Sect. 16.2. above.
145.
See E. Clive, “Current Codification Projects in Scotland” Edinburgh Law Review 4 (2000) 341; E. Clive, “Thoughts from a Scottish perspective on the bicentenary of the French Civil Code” Edinburgh Law Review 8 (2004) 415.
146.
And for a Scottish Law Commission project to consider Scots contract law in light of the DCFR see http://www.scotlawcom.gov.uk/law-reform-projects/contract-law-in-light-of-the-draft-common-frame-of-reference-dcf/.

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Reid, E. (2013). Mixed but Not Codified: The Case of Scotland. In: Rivera, J. (eds) The Scope and Structure of Civil Codes. Ius Gentium: Comparative Perspectives on Law and Justice, vol 32. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7942-6_16

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