MacQueen, Hector L. --- "Scots Law" [2006] ELECD 208; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 57

Section Title: Scots Law

Author(s): MacQueen, Hector L.

Number of pages: 11

Extract:

57 Scots law*
Hector L. MacQueen


Modern Scots private law is the product of a mixture of the civilian and the
common law traditions. It may be unique among mixed systems, because it
is not one where a civil law system was overlaid by the common law, as in
South Africa, Louisiana, Quebec or Sri Lanka; rather the mixture in some
shape or form seems always to have been present. Certainly Scots law is the
only major mixed legal system in Europe. Opinions vary as to the conse-
quences of being a mixed system. It can be described as a seat on a fence,
not very secure, but offering the conspicuous advantage of a view on both
sides (Cooper, 1957, p. 201). It has also been said to be a potential bridge
between the civil and common law traditions, of potential importance for
the development of a European private law within the European Union
(Zweigert and Kötz, 1998, p. 204). On the other hand, there is the criticism
that the Scottish mixed system is essentially a muddled one which is in a
state of transition leading inexorably, given the proximity and strength of
the English model, to a common law system in substance as well as in many
aspects of form (Evans-Jones, 1998).
Scots law can be dated back as early as the 12th century and the origins
of the kingdom of Scotland (see, for an overall account, Cairns, 2000). In
its early development the system was much ...