The political purpose of the ‘mixed legal system’ conception in the law of Scotland
| Date | 01 December 2017 |
| Published date | 01 December 2017 |
| DOI | 10.1177/1023263X17745802 |
| Author | Andreas Rahmatian |
| Subject Matter | Articles |
Article
The political purpose of the
‘mixed legal system’ conception
in the law of Scotland
Andreas Rahmatian*
Abstract
This article explores the concept of the ‘mixed system’ of Scots private law as a tool for Scottish
legal nationalism. The paper looks at some difficulties and contradictions of the ‘mixed system’ idea
and the role of Scottish legal nationalism in Scottish legal academia. Examples from contract, tort
(delict) and property law will be used to illustrate the function of the ‘mixed system’ conception as
an ideological and political device to further the cause of legal nationalism. The article then dis-
cusses the features of Scottish legal nationalism. It will be argued that Scottish legal nationalism
poses many problems but is now diminishing, and this probably even correlates, somewhat
paradoxically, with the rise of Scottish political nationalism and the real possibility of Scottish
political independence from the United Kingdom in the present political climate.
Keywords
scots private law, mixed legal systems, scottish legal nationalism, european private law, scottish
independence
1. The mixed system of Scots law
A. General
According to the prevalent and authoritative narrative among Scottish legal academics, Scotland
has a mixed legal system, and it is the only mixed legal system in Europe. However, outside
Scotland and outside other mixed jurisdictions, the mixed system of Scots law has, unfortunately,
not received much attention.
1
For a better understanding o f this fairly cryptic account , some
* School of Law, University of Glasgow, Glasgow, UK
Corresponding author:
Andreas Rahmatian, School of Law, University of Glasgow, 5-8 The Square, Glasgow, UK.
Email: andreas.rahmatian@glasgow.ac.uk
1. H. MacQueen, ‘Mixed Jurisdictions and Convergence: Scotland’, 29 International Journal of Legal Information (2001),
p. 310-311.
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(6) 843–863
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background information is necessary. A ‘mixed system’ in this context is generally understood, in
a somewhat reductionist way,
2
as a mixture between Roman law-based civil law (as found in the
continental European civil law jurisdictions) and the common law of England. This is conceptually
a ‘simple mix’, whereby the law is a hybrid of civil law and common law only, which serve as its
ingredients.
3
A ‘mixed system’ also refers to private law and the commercial law-aspects of private
law only; it does not cover all areas of Scots law, namely criminal law, and it does not refer to
public law (constitutional law and administrative law). As a result of these restrictive caveats, the
present definition of a ‘mixed system’ can make sense, otherwise it would be problematic.
However, it is not the purpose of this article to discuss where the possible flaws of the idea of the
‘mixed system’ used by Scottish legal academics lie, for I want to show the purpose of the ‘mixed
system’ conception in legal and political discourse, not its accuracy or otherwise. As a further
methodological point, the following is presented from the perspective of an author with a civil law
education and a background in a continental European civil law jurisdiction, with a common law
education and background from England, and with practical experience of Scots law as a legal
academic in Scotland for over ten years. Naturally this account is not only subjective, it also tends
to be sceptical, especially as to the exact nature of this mixite
´from the viewpoint of someone with
an intimate knowledge of the ‘pure’ civil law and the ‘pure’ common law. In the same way as
pouring white wine into red wine does not create a rose´ but rather a horrible concoction, the mixing
of civil law and common law does not create anything new or better per se, and it may not create
anything different from its constituent parts at all.
4
Nevertheless, some Scots lawyers regard the
mixed nature of Scots law as having a special, separate and independent quality, perhaps even a
superiority,
5
when compared to the civil law, and particularly to the common law – the ingredients
from which Scots law has been formed. It cannot be avoided that the non-Scot often finds it
difficult to discern such a quality, regardless of how sympathetic he or she is to the beliefs of
their Scottish colleagues.
The historical reasons for the mixed nature of Scots law have often been presented and need not
be retold.
6
Of interest is rather an analysis of that mixed nature, but sometimes one cannot help
thinking that the often provided broad discussion of the historical development of the mixed nature
of Scots law seeks to fill a certain analytical void.
2. A classical counter-example are the pluri-jural systems found in many African states, for example the usual pattern of
indigenous customary laws, Islamic law and (English) common law in Commonwealth Africa, see e.g. A. Allott, Essays
in African Law (Butterworth, 1960), p. 4-5, 12, 63, 67. In the case of the mixed system of South Africa, the concentration
on the civil law (Roman-Dutch) part and the common law (English) part without considering the customary law element
at all can lead to most uncomfortable findings, see below and A. Rahmatian, ‘Book Review: Vernon Valentine Palmer:
Mixed Jurisdictions Worldwide: The Third Legal Family’, 8 Edinburgh Law Review (2004), p. 427-428; E. O
¨ru
¨cu
¨,
‘What is a Mixed Legal System: Exclusion or Expansion?’, 3 Journal of Comparative Law (2008), p. 49.
3. E. O
¨ru
¨cu
¨,3Journal of Comparative Law (2008), p. 46.
4. A. Rahmatian, ‘Codification of Private Law in Scotland: Observations by a Civil Lawyer’, 8 Edinburgh Law Review
(2004), p. 31-59, 34.
5. T.B. Smith, ‘The Common Law Cuckoo’, in T.B. Smith (ed.), Studies Critical and Comparative (W. Green and Oceana
Publications, 1962), p. 96-97, 115. See also the discussion in, K. Reid, ‘The Idea of Mixed Legal Systems’, 78 Tulane
Law Review (2003), p. 5-40, 13-14, 20.
6. H. MacQueen, ‘Regiam Majestatem, Scots Law, and National Identity’, 74 The Scottish Historical Review (1995), p. 1-
25; W. Tetley, ‘Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified)’, 60 Louisiana Law Review
(1999-2000), p. 677-738, p. 684, 688 (for analysis on Scotland).
844 Maastricht Journal of European and Comparative Law 24(6)
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