T B Smith and Max Rheinstein: Letters from America
| Published date | 01 January 2016 |
| Date | 01 January 2016 |
| DOI | 10.3366/elr.2016.0321 |
| Pages | 42-65 |
| Author |
T B Smith was, and remains, a controversial figure in Scots law and his views, influence, and legacy are still debated.
See e.g. the essays in E Reid and D L Carey Miller (eds),
Rt Hon Lord Hope, “Foreword”, in D L Carey Miller and D W Meyers (eds),
Smith's wide-ranging published work has been subjected to rigorous analysis.
Again, see e.g. Reid & Carey Miller (eds),
H L MacQueen, “David Daube and T B Smith”, in E Metzger (ed),
Smith's relationship with Rheinstein was, however, markedly different from his relationship with Daube, one major reason being that Smith and Daube were close colleagues for a number of years. The Rheinstein-Smith correspondence is held within
The letters exchanged by Rheinstein and Smith provide us with an insight into their relationship and offer a series of snapshots regarding their respective views and interests. Nevertheless, the correspondence sheds more light upon Smith than Rheinstein, not least because it discloses that the connection held greater utility for Smith, and therefore the Scot will be the primary focus of this article.
Smith's presence on the international stage is referred to by Professor Black, who states that: “Tom Smith was undoubtedly the representative and ambassador of Scots law who was best known to lawyers furth of the jurisdiction.”
R Black, “Professor Emeritus Sir Thomas Broun Smith QC 1915–1988”, in
It has been suggested that Smith's international success, in promoting Scots law and Scottish legal scholarship, was based more upon his contacts than his writing.
D M Walker, “Smith, Sir Thomas Broun (1915–1988)” in H C G Mathew and B Harrison (eds),
T B Smith's biographical details have been narrated in many publications.
See, e.g., the biographical articles cited in Anderson (n 3) at 311.
Perhaps surprisingly, the Scot began his legal career in England. He graduated with a degree in jurisprudence from Oxford in 1937 before being called to the bar at Gray's Inn. After serving in the Second World War, Smith returned to Scotland, and began practicing as an advocate in 1947. The fact that Smith came to Scots law after studying and practicing English law has been appropriately described as “a positive incitement to a comparative approach to law”.K G C Reid, “While one hundred remain: T B Smith and the progress of Scots law” in Reid & Carey Miller (eds),
T B Smith,
By the time Smith was writing the first of the letters to Rheinstein, held in the
His appointment had been announced the previous year: 1948 SLT (News) 155.
In the period covered by the correspondence, Smith moved to Edinburgh, becoming Professor of Civil Law there (1958),Smith's famous inaugural lecture was published as T B Smith, “Strange gods: the crisis of Scots law as a Civilian system” 1959 Jur Rev 119. It was republished at T B Smith,
Between 1954 and 1965, Smith was also an active member of the Law Reform Committee for Scotland (“LRCS”).
Lord Hunter, “Professor Emeritus Sir Thomas Smith, Q.C. – A personal appreciation” 1982 JR 5 at 9, Lord Hope of Craighead, “Do we still need a Law Commission?” (2006) EdinLR 10 at 16, and S Wilson Stark, “The longer you can look back, the further you can look forward: the origins of the Scottish Law Commission” (2014) EdinLR 59 at 66, all state that, despite becoming a Commissioner, Smith remained a member of the LRCS until its formal demise in 1970. However, archived LRCS documents suggest that Smith may have resigned shortly after his appointment as a Commissioner. In one letter, Smith proposed to offer his resignation (and suggested David Walker as a suitable replacement) – letter from Smith to J H Gibson dated 21 June 1965 in NRS AD61/1. In later documents Smith is not listed as a member of the LRCS, see e.g. copy letter from J H Gibson to R B Laurie, Law Society of Scotland, dated 27 February 1968 in NRS AD61/1. In any event, little formal work was done by the LRCS after the establishment of the SLC: the
For some discussion of Smith and the establishment of the Scottish Law Commission, see Wilson Stark (n 13) at 66–68.
He had moved from the Chair of Civil Law to this Chair in 1968.
The available correspondence between Rheinstein and Smith covers a productive time in terms of Smith's published work. Arguably his most significant offerings to scholarship,
T B Smith,
T B Smith,
T B Smith,
See below at 58\,f.
This was also the period within which Smith first developed his views on the potential significance of mixed legal systems for Scots law. From the mid-1950s he read important literature from other such systems and this, as well as the time he spent in Louisiana and South Africa in 1957 and 1958, caused him to identify the commonalities between these systems and Scotland.
Reid (n 9) at 9 ff. And see V V Palmer, “Travelling the high road with T B Smith: nationalism and internationalism in the defence of the Civilian tradition” in Reid & Carey Miller (eds),
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