Eric Descheemaeker (ed), The Consequences of Possession
| Date | 01 May 2016 |
| Author | |
| Published date | 01 May 2016 |
| DOI | 10.3366/elr.2016.0355 |
| Pages | 251-252 |
This collection of essays is the latest addition to the most successful Edinburgh Studies in Law series edited by Professor Elspeth Reid. Based on a 2012 Edinburgh University conference, the work “[c]ompares the law of possession across the divide between the civilian tradition and common law”. The dust jacket blurb also says that the theme “is the consequences that the law attaches to the recognition of a possessory relationship between a person and a thing in a comparative perspective”.
Chapter 1, by conference organiser and volume editor Eric Descheemaeker, is a skilfully conducted historical European tour through the difficulties, real and perceived, of an apparently simple concept. This wide ranging contribution bears out the writer's point that while the “common-sense notion underpinning it is bound to have a high degree of validity across jurisdictional boundaries” it is not the case that “the legal refinement of the notion is system-neutral” (5). The chapter includes a survey of the different approaches to possession and its protection in Roman law, certain later Civilian tradition jurisdictions, and in England. Any Aberdeen lament at what might be seen as a snub to spuilzie is mitigated by Craig Anderson's chapter on the protection of possession in Scots law. Although this contribution's primary focus is on the possessory judgment, spuilzie is considered in a short but informative and convincing account. From the point of view of possession in Scots law, following hard on the heels of
Insofar as spuilzie is about protecting possession against unauthorised deprivation, where a party – quoting from Duard Kleyn's chapter on South African law – “[takes] the law into their own hands” (193), the remedy probably represents the universally recognised position of private law. From the point of view of the standing of possession, however, what must be established before dispossession is sanctioned, may be telling. Anderson points to Scots law's similarity to Roman law which gave “no right to possess beyond a right not to have that possession disturbed without consent or legal process” (111). The author goes on to...
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