A British ius commune? A Debate on the Union of the Laws of Scotland and England during the First Years of James VI/I's English Reign

Abstract

This article considers the debate about the union of Scots and English law which followed the Union of the Crowns in 1603. The catch-phrase “union of law” was itself ambivalent, referring as it did to a range of different forms ofharmonisation of Scots and English law. Moreover, the British debate is not altogether alien, whatever the special status and weight the English Common Law had already acquired, from that which went on at the same time on the European continent. The same fundamental tension can be perceived between an established order and a new, emerging constitution of the commonwealth. On one side, a traditional attachment to ancient freedoms inherited from medieval times and struggles was perceived by many as the very foundation of partiadar laws expressed through a variety of authorities, the extension of which could be anything from a local custom or statute to a body of legal rules prevailing throughout the realm. On the other side, the growing concept of sovereignty based on fresh premises, sometimes connected to the first signs heralding some national identity, paved the way for a transformation of the established legal traditions (such as customs, statutes, and the learned law), which lost henceforth some of their autonomy in order to accommodate the new dynamics of early-modern sovereignty. The most successful legal developments of that period were indeed those which combined that medieval legal heritage of “ancient liberties” and the early-modern concept of sovereignty. It is easy to see several parallels between the present-day discussion on the making of a European “common law” and the debate on the union of laws which was meant to “perfect” the union of the Crowns in 1603.