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Stephen Thomson, The Nobile Officium: The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland

Document Cited in Related
Vincent
Pages245-247
DOI10.3366/elr.2016.0352
Author
Published date01 May 2016
Date01 May 2016

Scots lawyers are inclined to get twitchy when words like “equitable” are used. Some, indeed, manifest all the neurotic tendencies of a rugby player preparing to take a place kick. They seem anxious to strike the ball cleanly between the posts marking the boundaries of the law because the fear of judges delivering unjust decisions troubles them less than the prospect of jurists going English in their reasoning. Since there have never been separate courts of law and equity in Scotland, it is insisted, Scots lawyers do not need to think in terms of equity as well as law and should avoid doing so.

There was a time when the Scottish legal system might well have developed like its neighbour to the south, from which several institutions were borrowed, including a royal chancery where writs (breves) could be purchased to secure the administration of justice by sheriffs or justiciars. Litigants unable to obtain satisfactory redress in this way could petition the king in council, a practice that eventually gave rise to the administration of justice by judges known as lords of council and session. Yet although these judges may at one stage have been expected to function as a court of equity, ameliorating the deficiencies and mitigating the harshness of the ordinary law, they came themselves to be regarded as “judges ordinary”, who would decide cases in accordance with the law wherever possible and resort to equity only if extraordinary measures seemed necessary. Having become more susceptible to civil-law than common-law influence, they conceived of their jurisdiction in civilian terms. Litigants, they believed, would normally invoke the exercise of their officium ordinarium vel mercenarium, requiring them to do what they were paid for by applying the law, though recourse could exceptionally be taken to their nobile officium, when they might exercise their imperium as supreme magistrates by providing equitable solutions to problems the law failed to deal with adequately. In the latter half of the seventeenth century, one lord of session provided his colleagues with a sophisticated explanation of how equitable decisions could gradually give rise to new rules of law. Stair himself was only ever involved in the administration of civil justice, but many of his colleagues also served as justiciars in the body reconstituted in the same period as the supreme criminal court of Scotland, and there too recourse was sometimes taken to the nobile officium.

The fusion of law...

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