SCOTLAND
The early period
Early Scots law stood outside the general stream of these developments and received greater influence from England than from the developing ius commune. The most important piece of evidence for the content of early Scots law is a treatise called Regiam Majestatem (from its opening words), probably compiled in the early fourteenth century.
The opening passage is adapted from that ofJustinian’s Institutes, which begins with the words ImperÂatoriam Maiestatem (“Imperial Majesty”). However, it should not be thought that this demonstrates a direct influence of Roman law. The opening, and most of the content, of Regiam Majestatem is lifted from an earlier English treatise called Glanvill (after its author). Of course, canon law applied in Scotland as it did elsewhere. However, where canon law did not apply, non-Roman sources predominated.An increase in Roman influence is, however, visible in the later medieval period. Scotland had no universities until the establishment of the UniÂversity of St Andrews in 1413. Accordingly, for the Scots, legal education meant travel to the Continent, where it was Roman legal education. Even after the foundation of the first Scottish universities, Scots continued to study abroad, particularly in France before the Reformation in 1560 and the Netherlands thereafter. Thus, when the legal profession developed in Scotland, it did so in a context where Roman law formed the foundation of legal thought. Where in England in earlier times the professionalisation of legal practice had insulated the law from Roman influences, the converse was the case in Scotland.
In the early modern period, then, Scots law was receptive to Roman inÂfluences. When, in 1532, the Court of Session was established, it was staffed by judges trained in Roman and canon law, who were, from the first, willing to resort to the ius commune to supplement or develop native sources.
The Institutional Writers
Modern Scots law is often considered to begin with the Institutional Writers. The period during which the Scots Institutional Writers wrote extends from the late seventeenth century (Stair) to the early nineteenth century (Bell). It is instructive to compare these two writers for the light this consideration sheds on the manner in which English law influenced the development of Scots law after 1707.
Even a cursory look at Stair’s Institutions shows clear Roman influence. The structure of the book is based on the Institutional Scheme of JustinÂian’s Institutes. As does Justinian, Stair begins with a short section on the general principles of law. It is true that he differs from Justinian in putting marriage and the law of parent and child in with obligations, which takes up the rest of Book I. However, the remainder of the book follows Justinian, down to the coverage of procedure (actions, in the terminology of Gaius and Justinian) in Book IV As in Justinian’s Institutes, property is next, taking in Book II and part of Book III. Again faithful to Justinian’s approach, this is followed in the remainder of Book III by succession.
When we turn to matters of detail, we again see in Stair’s Institutions clear signs of Roman influence. Stair characteristically uses Roman law sources to give the general principle applying in a particular area. Points of detail are then filled in with native sources, but always in the context of a framework fundamentally informed by Romanist legal thinking. That such a book could have been written for legal practice by an eminent judge and practitioner demonstrates the depth of the roots laid down in Scotland by Roman law.
We see the same in the Institutional Writers of the eighteenth century, Erskine and Bankton. However, during this century we begin to see influence from English law, particularly in commercial matters. This influence became even stronger in the nineteenth century.
One might look at Bell’s Principles, for example, the first edition of which was published in 1829. In the same way as Justinian’s Institutes, this was intended as an eleÂmentary work, primarily for students. However, there is little resemblance in terms of structure. In terms of content, although extensive use is made of Roman and ius commune sources, substantial use is also made of English cases and textbooks. The same is true with Bell’s major work, the Commentaries, first published in 1800 as the Treatise on the Law of Bankruptcy in Scotland and subsequently expanded. Unlike the earlier Scots Institutional works, this book makes no claim to be comprehensive, concentrating on commercial topics, and makes no attempt to be systematic in its structure. Like the PrinÂciples, the Commentaries also make free use of English authorities alongside native and Romanist sources.The position today
English influence on Scots law since 1707 has been such that there has been a tendency on the part of some to downplay the influence of Roman law. Modern textbooks on the Scottish legal system often disregard Roman law as a source, or treat it as being only of historical interest. It is true that many areas of Scots law have been strongly influenced by English law. This is particularly true in commercial law. It is also true in areas such as delictual liability for negligence that have only become significant areas of legal practice in more recent times. Yet, we have seen, there are many areas in which Scots law is identical or very similar to Roman law. ParticuÂlarly in property law, Roman law is the source of many of the fundamental principles of Scots law. And the importance of Roman law is not merely historical, for we have seen numerous cases where arguments have been put forward drawing directly on the Roman sources. For these reasons, the study of Roman law remains beneficial to the aspiring Scots lawyer.
Essential Facts
• Although knowledge of Roman law was only very imperfectly preserved in western Europe during the Dark Ages, the study of Roman law was revived in Bologna by Irnerius, the first of the school of Glossators, in the eleventh century.
This followed the rediscovery of the Digest. The characteristic form of literature produced by the Glossators was the marginal gloss, explaining difficult terms and cross-referencing to other texts dealing with the issue at hand.• The culmination of the Glossators’ work was the compilation by Accursius of the Accursian Gloss in the mid-thirteenth century. This was a large collection of glosses, which became the standard reference work on the Corpus Iuris Civilis.
• From the fourteenth century, study of the Roman texts was further developed by a new school, called the Commentators. The ComÂmentators tended to have a greater interest in the practical application of the law than did the Glossators.
• Another vehicle through which Roman law was received into medieval law was canon law. Canon law was the law of the Roman Catholic Church, which had jurisdiction over a range of matters. The Church courts used Roman law as a subsidiary source of law.
• The work of scholars of Roman law, combined with canon law and feudal law, resulted in the development of an ius commune, a common European legal tradition, forming the basis of the development of individual national systems of law.
• Scots law was also influenced by the ius commune, and Roman sources are still directly referred to today in the courts.