Roman Law in Scotland

(1) Early Scots Law

We have seen that, across Europe, there was great legal diversity through the ear­lier Middle Ages. Despite the partial survival of Roman law, the laws governing people's lives were to a great extent matters of local custom, and disputes were determined by men with expertise in local law.

Scots law in this period was strongly influenced by the developing English Common Law. This can readily be seen by comparing the Scots law treatise Regiam Majestatem, probably composed in the first half of the fourteenth century, with the English law book known as Glanvill, probably dating from the late 1180s. While it would be wrong to see Regiam Majestatem as simply a Scottish edition of Glanvill, nonetheless large parts of the former are directly lifted from the latter. After the early fourteenth century, though, English influence lessened for politi­cal reasons: this was the period of the Wars of Independence. The English king, Edward I, had taken the opportunity of being asked to act as arbiter of a suc­cession dispute^[331] to place John Balliol on the Scottish throne in 1292 as, in effect, a puppet king. Balliol having proved insufficiently reliable, Edward invaded and imposed direct rule in 1296, in the face of strong resistance.

From this, it might be thought obvious that English influence on the law would dwindle. This is not quite as obvious as it appears, though. Accepted legal rules and institutions will often survive even when the political factors that allowed them to arise in the first place cease to exist. As we shall see below, for example, canon law continued to be applied in Scotland even after the Reformation in 1560. More to the point, Regiam Majestatem, with all its English-derived content, was almost certainly compiled after Bannockburn, when receptiveness to English ideas might be thought likely to be at its lowest. There is little doubt that some English legal ideas persisted after the Wars of Independence, though the extent of this is a matter of debate.^[333] In the longer term, though, divergence between the two was inevitable. In the case of later medieval Scots law, however, there was an additional factor promoting divergence, in the form of the ius commune. What is not denied by anyone involved in debates about the Scottish legal history of the period is that Scotland experienced a Reception of Roman law.

(2) Reception in Scotland

In a way very similar to the situation on the Continent, until the eighteenth century there was no university education in Scots law.

Those seeking a career pleading before the Scottish courts, then, had their whole way of thinking about legal problems shaped at the basic level by the ius commune. Scots law could be learned later through observation or private tuition, but it is inevitable that it would be viewed through a Romanistic prism, and interpreted according to Roman assumptions.^[337] Indeed, until 1750 there was no requirement for aspiring advocates to be examined in Scots law at all. Before that time, the normal way of gaining admission to the bar was by examination in civil law, meaning Roman law. An alternative way, through examination in Scots law, was available, but seems to have been seen as less honourable and involved pay­ment of double entry money.^[338]

In addition, the courts themselves would look to the ius commune for solutions. The modern Court of Session, the highest civil court in Scotland, has its origins in the practice that developed in the fifteenth century of circumventing the jurisdic­tion of the lower courts by taking a dispute directly to the king and his advisors. The judicial ‘sessions' of the king's council that dealt with these matters were often staffed by men with expertise in Roman and canon law.

From the beginning, then, the Court of Session was staffed by judges who were learned in Roman and canon law, and the cases before it were pled by advocates whose first learning in the law was in the ius commune-based law schools of the Continent and who made free use of Roman-based learning in their argu­ments. Although this is not always obvious from the most important native legal literature of the time, the practicks,^[340] it is clear that Scots law at the end of the 1500s had extensively absorbed the learning of the ius commune.^[341]

This continued into the following century, despite an attempt to impose English law in the Interregnum of the 1650s,^[342] during which Scotland was sub­ject to military occupation by English forces. A picture of Scots law as it stood at the end of the seventeenth century, shortly before the Union of 1707, can be obtained from Viscount Stair's Institutions of the Law of Scotland, the first edition of which was published in 1681. The second edition, on which modern editions are based, was published in 1693. This is one of a number of works published between the late seventeenth and early nineteenth centuries which are collectively called institutional writings, and which are considered to be a formal source of Scots law. As we have seen, similar works existed in Europe.^[343]

Stair is quite clear that Roman law is not formally authoritative in Scotland. He says of Roman law: ‘though it be not acknowledged as a law binding for its author­ity, yet being, as a rule, followed for its equity...'.55 It would be easy to take from this that Roman law was a relatively minor, subsidiary source. That impression would, however, be greatly mistaken, as even a cursory examination of the Institutions,· shows.

First, let us consider the structure of Stair's work. We saw in Chapter 3^{[344] [345] that the second-century Roman jurist, Gaius, wrote an introductory text (the Institutes), in which private law was divided into three parts: persons, things and actions.}

We find Roman influence when we look at the substance of what Stair writes. Let us take, for example, Stair's general account of possession.^[347] As we shall see in Chapter 10,^[348] the distinction between ownership and possession is strongly characteristic of a Roman-based system of property law. It is no exag­geration to say that most of Stair's account could almost have been written by a Roman jurist, writing about Roman law. His sources, too, are predominantly Roman here: five Roman texts are cited as authority, whereas only two Scots sources are cited. These are cases concerned with points for which there was no Roman analogue, but even they are viewed through a Roman lens. This is followed by an account of the right of a possessor of property in good faith to the fruits of the property.^[349] Here the general principle and justification for the rule is drawn from a number of Roman sources. Only then does Stair resort to reference to Scots case law, to explain the detailed application of the rule. Later, when he is talking about occupatio^[350] (the acquisition of ownerless property, principally wild animals),^[351] seven Roman passages are cited. Only one Scots source is referred to, a case from 1677, for a point on which Scots law has adopted a different rule, and even that is presented as arising from the Roman principles.

The picture that emerges is of a strong tendency on Stair's part to prefer cita­tion of Roman and, to a lesser extent, ius commune sources,^[353] especially to explain the general principles of an area of law. There is a matching tendency to cite Scots authority only where the Scots position differs from that of Roman law, or to explain the detailed application of a legal principle.^[354]

(3) Scots Law since the Union of Parliaments

(a) The Influence of English Law

Scotland and England had shared a monarch sinceJames VI became King of England in 1603 (as James I). This is known as the Union of the Crowns. Despite James's desire for a closer union, however, the two countries remained separate. It was not until the Union of the Parliaments in 1707 that, against strong public opposition, the individual parliaments of Scotland and England were replaced by a new parliament for both countries.^[355] The jurisdiction of the Court of Session was expressly preserved.^[356] No provision was made for any kind of merger of the law of the two kingdoms, or the replacement of the law of one with that of the other. Quite the contrary: it was expressly enacted that ‘no alteration be made in Laws that concern private Right except for evident utility of the subjects within Scotland'.^[357] It must be said that the UK Parliament has never felt in any way restrained in legislating on such matters. Moreover, despite the absence of any justification for this in the Treaty of Union, or in the Union with England Act 1707 which implemented it,^[358] the House of Lords^[359] had little hesitation in declaring itself to have the right to hear appeals from the Court of Session.

For very similar reasons to those we see in, for example, South Africa, Scots law has gone from being a civil law system to being a mixed system. Significant areas of Scots law have been strongly affected by English law, and in very similar ways. The result is that ‘the private lawyer of Scotland and of South Africa have a great deal in common, and a lawyer from the one jurisdiction feels immediately at home with the law books of the other'.^[360] This is the case even though there has been very little influence by one system on the other, or even very much contact between lawyers working in each system.

This mixing process was not, however, an immediate result of Union. For example, the Institute of the Law of Scotland of another institutional writer, John Ers­kine, which appeared in 1773, has much the same approach as we have seen in Stair's Institutions'. The education of advocates was still rooted in the ius commune, and during the 1700s Scots law students were still travelling in significant numbers to continental universities for their studies. Moreover, the most obvious vehicle for the imposition of English legal ideas — the House of Lords — heard relatively few Scots appeals during the eighteenth century. The reasons for this are not com­pletely clear, but may have something to do with the expense and inconvenience of appealing to London. In the eighteenth century, it might take two weeks or more to travel from Edinburgh to London by stagecoach. With the development of the rail­ways in the nineteenth century, the journey could be completed within a single day.

Whatever may be the reason for the delay, English influence on the develop­ment of Scots law accelerated in the nineteenth century. More appeals went to the House of Lords, where the absence of Scottish judges at that time tended to result in English law being applied.^[361] Contact with continental Europe became much more difficult with the Napoleonic Wars.^[362] By the time that the Dutch universities that had been most popular with Scots students became accessible once more, Roman­Dutch law no longer applied.^{[363] [364] In any case, the language factor meant that English books and cases were more accessible than was continental literature, increasingly written in the vernacular rather than in Latin. It was easier, therefore, to turn to English sources, especially in areas then in rapid development such as commercial law For example, in the nineteenth-century Principles17’ and Commentaries[365] of the last institutional writer, George Joseph Bell, we see considerable use of English sources, although ius commune materials continue to be prominent as well. Finally, it must be remembered that, from 1707 until the re-establishment of the Scottish Parliament in 1999, Scotland had no legislature of its own, despite largely being governed as a separate entity. The UK Parliament rarely showed much interest in Scottish legisla­tion but, when it did, it had a strong tendency to be lazily insensitive to the specific needs of the system. Often legislation designed for England would simply be trans­planted with little attempt made to adapt it to Scots law.}

(b) The Current Position

So what, then, is the current position? Does the study of Roman law retain its relevance to Scots lawyers and law students? In 1969, the following was written of the (then) new Department of Law at the University of Strathclyde:

its attitude is modern and forward-looking... The study of the ancient Roman, Babylonian and other systems of law of the early periods of civilisation must be left to those of the ancient universities which feel that it is part of their task to do this. However interesting and academically sound such studies may be, they have no place in Strathclyde...^[366]

No doubt it is easy to speak with the benefit of hindsight, but this view has more recently been described (justly) as ‘very quaint'.^[367] Indeed, it is almost embarrass­ingly so, given how out of step it is with subsequent developments. This is the case even if we disregard the bizarre ranking of Roman law alongside ancient Babylonian law. Whatever one may think about the proper role of Roman law in modern law schools, it is clearly in a different position from Babylonian law. At the time of writing (2020), a pass in Roman law is still required for admission to the Faculty of Advocates, and the late twentieth century saw a flowering of historically conscious writing on Scots law greater than at any time since that of the institutional writers. The fact that speaks most eloquently, however, is perhaps that undergraduate law students at the University of Strathclyde do, now, have the opportunity to study Roman law. So much, one may say, for being ‘modern and forward-looking'.

Let us look at how Roman sources are actually used in the courts. It is help­ful first to look at trends over time in the courts' use of these sources. While, of course, it is only to be expected that sometimes the courts will use principles derived from Roman law without making direct reference to any Roman source or mentioning that origin, it is interesting to consider how often such reference is made. Figure 4.1 shows, by decade, the number of references made to certain terms^[368] in cases decided by the Scottish courts between 1830 and 2019, found

Figure 4.1 Trends in references to Roman law

by searching the Westlaw database. It is not entirely scientific. It does not take into account, for example, the total number of cases decided in each decade. Nonetheless, there does seem to be long spell from the 1920s to the 1980s when less reference was made to the search terms and, so the assumption would be, less reference to Roman law itself. This has been followed by a substantial increase in direct reference since then, to a level not reached since the 1860s.

When the data is broken down a little more, a further interesting fact emerges. All things being equal, it seems that a reference to a specific Roman jurist is more likely to form part of a detailed consideration of the Roman sources than is a simple use of the phrase ‘Roman law'. From that point of view, it is interesting to note that there has been a distinct increase in references by name to the specific jurists referred to since around the year 2000 (see Figure 4.2). It seems likely that the same is true of other jurists, not searched for. Fourteen cases were found since 2000 that referred to at least one of these jurists by name. That is just one short of the number found from the previous 140 years before that. That is suggestive, not just of an increase in awareness and use of the Roman sources, but also of an increasing sophistication in the handling of these sources.

Of course, even where reference is made to Roman law, it does not follow that that reference was decisive. It may not even have been very important. Some­times a reference to Roman law will be little more than ornamental, perhaps simply illustrating the historical origins of a rule without the Roman sources actually playing any part in the court's reasoning. Sometimes the courts will go a little further than this, and use the Roman sources to give additional support

Figure 4.2 References to Ulpian, Papinian and Modestinus

to a decision that could, nonetheless, have been reached without them. It does sometimes still happen, though, that Roman and ius commune sources are used to fill in gaps in the law. Justly it has been said that ‘Roman law is still a living source of Scots common law'.^[369]