‘A token of independence’: debates on the history and development of Scots law

Abstract

Introduction This chapter briefly explores current debates on five aspects of Scots law, namely: (a) the revision of the ‘legal nationalist’ history of Scottish private law; (b) the devolution of legislative power over Scots law to a Scottish Parliament; (c) the Scottish approach towards ideas of European integration or harmonisation; (d) the place of Scots law within the Civilian–Common Law dichotomy; and (e) the future direction of development of Scots law. A sixth debate, on ‘what should be the main vehicle of reform – judicial development, statutory reform or codification?’, is excluded since it is considered by Professor Clive's chapter. Criminal law and public law are also excluded. The United Kingdom: ‘parts’ and regions The United Kingdom is divided into three ‘parts’ each with its own independent system of law and structure of courts, namely (1) England and Wales, which form one part; (2) Scotland; and (3) Northern Ireland. It is English law that applies within England and Wales: nobody ever talks of Anglo-Welsh law. In the United Kingdom English law is in theory equal in status to Scots law, but in the British colonies it was always English law that was introduced, which thereby became the imperial law. The debate about revision of the ‘legal nationalist’ history of scots law The debate about the true nature of Scots law and its relationship with the English common law and Continental civilian traditions is bound up with the writing of Scottish legal history, to the dismay of those academically correct historians who would like to keep legal history as a safe (and perhaps even rather dull) discipline immune from modern ideological concerns.