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This chapter attempts to trace the changing nature of Scots law, focusing on its main institutions and taking into account the history of politics, social and economic life, and philosophy. The story is told from the emergence of the Scottish kingdom in 1832. By this date, the basic architecture and much of the sculptural detail of Scots law was in place. An epilogue to this chapter reviews some subsequent developments. The picture that emerges is not one of ‘false starts’. Nor is it one of simple continuity. In fact, the historical reality is too complex to reduce to simple descriptions or metaphors.

This chapter assesses T B Smith's work on contract law and discusses its impact upon the development of the subject in Scotland. It does so by first describing what appeared to be the general state of the law when Smith entered the academic arena at Aberdeen in 1949, and then considering those parts of it which Smith made the subject of special study in the 1950s. It argues that he was driven primarily by two concerns. One was to refute the view, certainly current in the early 1950s, that the Scots law of contract was scarcely different in any significant respect from its English counterpart. The other concern was to press an argument that, in the areas where difference was particularly apparent, the Scots law provided solutions to well-known and much criticised limitations of English contract law, the requirement of consideration, and the doctrine of privity. Further, properly understood, the Scottish rules on error in contract provided a more satisfactory approach than did the English law of mistake and misrepresentation, also the subject of great controversy in the 1950s.

This chapter is concerned with the way Enlightenment Scotland viewed the British unions. The focus of the Scottish Enlightenment was on the deeper social and economic underpinnings of political systems, not on the epiphenomenal superficialities of national status. There has been a widespread assumption that Scots law and Presbyterianism became mainstays of Scottish identity in the supposed vacuum created by the loss of Scotland's parliament. A different kind of ambivalence surrounded eighteenth-century Scottish attitudes to the law. Eighteenth-century Scottish historians made no attempt to align the Union of 1603 and the Union of 1707 in a benignly unfolding story of ever-closer British integration. Given the horrors of the Union of the Crowns, as related by the sociological historians of the Scottish Enlightenment, it becomes easier to explain why these same historians put a positive gloss on the enforced Cromwellian union of the 1650s. The Anglo-American crisis and problems in the Anglo-Irish relationship brought into sharp focus the solid loyalty of North Britons.

This chapter analyses the legal rules governing unexpected circumstances in contract law in the mixed legal systems of Louisiana and Scotland. The subject lies at the heart of commercial law, and one of the most interesting issues is likely to be whether the influence of the United States and England, world-leading commercial systems, has been dominant. The subject poses challenges to the comparatist. Louisiana, like many other legal systems, employs more than one legal concept in this area. By contrast, in Scots law, the unitary concept of frustration is applied to all cases. Other obstacles to be overcome include structural differences in the law of contract, and the difficult boundary between unexpected circumstances and error. Despite these difficulties, the chapter concludes that the two mixed legal systems can indeed learn from one another, in particular by drawing on the best parts of the different sources available to them.

This chapter focuses on the interaction between Scots and South African law. It traces the origins of Scots and South African law from Roman-Dutch law. It then discusses the common ground connections and connections between the two legal systems. This project is intended to provide new impulses for the development of private law in Scotland and South Africa. But it also attempts to establish whether and to what extent mixed legal systems have been able to advance towards coherent and rational solutions of problems on which civil law and common law legal systems take a different view.

This chapter focuses on the ‘Cooper–Smith ideology’, which can be summarised broadly as follows. Modern Scots law was a ‘mixed’ legal system, in which a basically Roman law or Civilian structure of private law had been overlaid since the 1707 Union by influence from the English Common Law. The principal agents of that influence had been the common legislature in Westminster, UK government departments in Whitehall, and the common appeal court in the House of Lords. The influence from England had rarely if ever been for the good. The salvation of Scots law lay in drawing upon its own historical roots and the experience of other ‘mixed’ systems, such as those of South Africa and Louisiana, where too a basically Roman Civilian system was threatened by infiltration from other legal traditions.

This chapter considers T B Smith's property work. It begins with some comments on what he wrote about the subject in general, including his contribution to the important notion of a general Scots property law. It presents observations on Smith's forays into heritable property, although not his field. The longest section, on corporeal moveable title problems, considers aspects of Smith's quite extensive specialised work, including the property provisions of the Sale of Goods Act 1979. An evaluation of Smith's contribution raises the issue of the dominant influence of English law. Whether caricature or clarion call, there is no doubt that this is thought of as an active and overt feature of his work. While its chemistry in the Smith psyche will remain a mystery, the accuracy and utility of his characteristic depiction of Scots private law in terms of English influence, or threat of influence, is open to evaluation. The chapter concludes that Smith was sometimes off the mark because he was driven to demonstrate and protect the distinctive character of Scots law.

Scots law has only recently acknowledged explicitly that there is a unitary body of law called ‘unjustified enrichment’, however, the parameters and internal body of this law still remain unclear. This chapter discusses the influences and the different substantive law which formed the unitary concept. It attempts to explain the reason why Scots law which is founded upon the civilian tradition in this context has been late in recognizing ‘unjustified enrichment’ as a distinct body of law compared to other legal systems from the civil law. The first section of this chapter examines the two structures which led to the difficulty of the Scots law in recognizing the ‘unjustified enrichment’ as a body of law. It looks into the development of Stair’s scheme of obediential obligations. In the chapter the influence of the misperceptions that have existed in Stair’s obediential obligations and the modern law are identified and discussed. In addition, the chapter also outlines how the understanding of the nature of the developed institutional scheme allows a proper understanding of the boundaries of the law of ‘unjustified enrichment’ as well as the how this body of law provides a unitary treatment in spite of it being expressed in terms such as restitution and recompense. The second section of this chapter discusses the three studies of reception which revealed Scots law as being overrun by English law. The chapter finally provides a general conclusion of the nature of ‘reception’ and the resulting character of the Scottish ‘mixed’ legal system.

This chapter traces the developments in Scots law from 1600 to 1830. The mindset of Scottish lawyers changed significantly over the course of the eighteenth century. In 1700, Scots law was best understood as representative of the usus modernus Pandectarum; there had developed in the seventeenth century, out of the older view of the ius proprium and the ius commune a Roman-Scots law, in which the ius civile was progressively integrated with Scottish material, all justified and rationalised by the ius naturale and the ius gentium. By 1800, however, the view that ‘the Civil Law was our Common Law’ seemed quite outdated. While well into the eighteenth century the term ‘common law’ had meant the Romano-Canonical ius commune, now it was used, rather in the fashion of England, in opposition to statute law: the lex non scripta as distinct from the lex scripta.

Unlike English law, neither Scots nor South African law recognizes a tort of negligence. However, both Scots and South African law recognize the possibility of delictual liability where one person negligently harms another. That is, both recognize that, where a person causes harm by conduct that falls short of the standard of the reasonable person, he could be held delictually liable to repair the harm. However, in neither Scots nor South African law does negligence suffice for delictual liability. Two further conditions have to be satisfied. One is that the negligent conduct breached a duty owed to the harm-sufferer. The other is that the harm suffered was not too remote from the negligent conduct. This chapter compares the way that each of the above-identified conditions for delictual liability, namely negligence, duty, and remoteness, has been treated in the two legal systems. It argues that Scots and South African law by and large treat negligence, duty and, remoteness in the same way. It also shows that the South African delict scholars' analysis, both of negligence and of duty, is mistaken.

The development of the Scots law of water rights broadly follows the familiar three-stage pattern found in areas throughout Scots law: a first medieval reception of English (Glanvillian) law, followed by a reception of Roman law as developed in the Europeanjus commune, followed by a second reception of English law beginning in the late eighteenth century. In the domain of water rights, doctrinal history can explain the taxonomic and semantic difficulties of the modern Scots law, a factor adding spice to the more truly historical task of understanding the universal and local factors which have influenced its development.

Since the establishment of the Scottish Parliament by the Scotland Act 1998, Scottish legislators have embarked on a programme of community-oriented land reform to allow for redistribution of land to communities. Eligible community bodies have rights of acquisition of varying strengths under the Land Reform (Scotland) Act 2003, and will soon benefit from a further suite of rights as a result of the Community Empowerment (Scotland) Act 2015 and the Land Reform (Scotland) Act 2016. The community approach that has been introduced to Scotland makes Scots law an interesting comparator for other land law regimes. This chapter explains the background to, the operation of and the future scope of such community rights in Scots property law.

This chapter considers termination as a remedy for breach of contract under the Principles of European Contract Law (PECL). The PECL provisions on termination for non-performance are similar to Scots and South African law in a number of important respects, not surprisingly in view of the common law influence in all three systems. Under all three systems, a non-fundamental delay may be elevated into a fundamental one by an ultimatum, and all three know the concept of anticipatory breach.

This chapter analyzes the nature of Smith's legal historical writing in the context in which he produced it. Smith's historical work is part of the fabric of his writing considering the general nature of Scots law, and expounding the development of particular legal concepts, doctrines and rules. It is within that larger body of his work that much of his ideas are to be found. With the exception of his work on the history of aspects of Scottish employment law, published in 1958, most of his work is in the form of essays with expressly historical titles which date up to the end of his career in the 1980s.

This chapter examines Smith's mentalité, which is necessarily limited and subject to further review because it relies exclusively upon Smith's own writings and an outsider's interpretation of them, and attempts to clarify our image of him and his image of himself. It argues that Smith was not a legal nationalist in the emotional and romantic sense. The suggestion that he was a legal irredentist with a passion to preserve (or reclaim) all parts of Scots law is somewhat overbroad and in part rebutted by his pragmatic positions on codification, on commercial law, on law reform, and his self-assessment of his place as a mixed jurisdiction jurist. The chapter also traces in part the evolution of his comparative law methodology, because it increasingly became outward reaching and non-nationalistic, and is an important indicator of a cosmopolitan mindset which existed in fact, not simply in theory.

This chapter reflects on the relationship between private law and national identity, and on the related problem of the continuities and discontinuities between legal and political nationalism. Scotland provides an exceptionally fertile ground to investigate those connections, as the Scottish legal system survives as a relatively autonomous body of law more than three centuries after the disappearance of the Scottish state into the United Kingdom. The chapter traces the way in which the defenders of the distinctiveness of Scots law have conceived of its relationship with political nationalism on the one hand, and national identity in a more cultural register on the other. It concludes by offering a contribution to the debate on the role that even a relatively apolitical brand of law might play in the construction of national identities.

This chapter focuses on the law of corporeal property in Scotland and South Africa. Corporeal property is divided into movable and immovable categories. Scots law, in applying the label ‘heritable’ to the latter, reflects an indigenous common law feature of the law of succession. In both systems, the modes of acquisition of property are classified on the basis of the original/derivative dichotomy. The chapter begins with original acquisition. It explores the far-reaching differences in the law concerning acquisitive prescription, and outlines and compares aspects of occupation and accession as well as the composite area of specification/commixtion/confusion. In the life-blood area of derivative acquisition the emphasis is on the transfer of ownership in corporeal movables. Attention is given to whether the Sale of Goods Act 1979 has shifted the development of Scots law from a civilian form, an associated issue — and apposite comparator — being the viability of South Africa's Romanist-based development.

This chapter examines the sources of Scottish criminal law, both past and present. In his Short Commentary, having noted the views of various writers and judges, Smith makes three claims: that ‘the Roman association’ played a major role in the development of Scots criminal law; that Civilian influences helped to maintain the independence of Scots criminal law, and the increasing English influence in the post-Hume period. The chapter attempts to evaluate these claims, having regard to the historical development of the substantive criminal law.

Promissory estoppel came into Louisiana silently, as it pervaded the rest of the United States, under the guises of other doctrines. Even after Williston discovered the hidden current in the American case law and named it ‘promissory estoppels’ (to distinguish it from equitable estoppel), the doctrine remained unacknowledged in Louisiana. With its Civil Law heritage Louisiana had no need to fix Common Law problems, it was thought, and promissory estoppel was only a tool for Common Law repairs. This thinking turned, though, and the state has now enshrined promissory estoppel in the Civil Code. In Scotland, on the other hand, a distinctive law of promise had been introduced centuries earlier. Even Adam Smith and David Hume interested themselves in promises and their place in the law, and in Smith's case, in Scots law particularly. This doctrine would seem to leave no room for promissory estoppel, which has therefore been kept out. This background, and these differing results, made promissory estoppel an enticing prospect for a study of two mixed jurisdictions, each of which is characterised by its own internal relationship between Civil Law and Common Law. The story told in this chapter, comparing Louisiana and Scotland, is an examination of the intricate relationship between these two sets of relationships.

This chapter explores the concept of subsidiarity, looking critically at the role it seems to play in Louisiana law and testing the extent to which its use is still appropriate in the remodelled Scots law. The relationship between enrichment and contract provides a helpful context for this discussion.