The Scottish Law Commission and the glistering code - Does codification simplify and modernise the law?
| Author | Alasdair Forsyth |
| Position | Student at the University of Dundee (2nd Year LLB Dual Qualifying Scots and English Law). The author sends their thanks to the DSLR Editorial Board and the anonymous peer reviewer for their perspectives, critical eye and their patient assistance. |
| Pages | 1-16 |
Dundee Student Law Review, Vol. 4(2), No.2
The Scottish Law Commission and the glistering
code — Does codification simplify and modernise
the law?
Alasdair Forsyth
∗
Introduction
The modern reformation of law by code and statute presents an epistemological problem for
Scots law, one which requires investigation before the common law disappears entirely. Theory
by example vs. example by theory. Here condensed is the root struggle of this essay. There are
two opposing maxims which anchor the two great legal systems of the Western world—
common and civil law.1 The example-led common law system relies on the doctrine of
precedent or stare decisis.2 This doctrine holds that an authoritative rule decided in a previous
case is binding on subsequent cases with indistinguishable facts. The judiciary is the custodian
and reformer of this system. By contrast, the theory-led civil law system is served by the code,
a singular source of law which purports to legislate exclusively in its area of concern (e.g. a
criminal code listing all crimes). The two orders may also be contrasted thus: the common
‘bottom-up’ vs. the civil ‘top-down’ approach to law-making. In Scotland, and other ‘mixed’
legal systems, the two forms of law are entangled but remain independently defined—they are
like oil and water. The current law within Scotland endorses “codification”3—i.e. the process
by which law is reformed into a legal code. In other words, Scotland has picked a side in the
struggle. The purpose of this essay is to determine if it is the right side, thus it addresses
∗ Student at the University of Dundee (2nd Yea r LLB Dual Qualifying Scots and English Law). T he author sends
their thanks to the DSLR Editorial Board and the anonymous peer reviewer for their perspectives, critical eye
and their patient assistance.
1 University of Ottowa, ‘Alphabetical Index of the Political Entitie s and Corresponding Legal Systems’
(JuriGlobe Research Group) <http://www.juriglobe.ca/eng/sys-juri/index-alpha.php> accessed 12 July 2018.
2 Translates from Latin as “to stand by cases decided”. The longer form, “stare decisis et non quieta movere”,
translates as “to stand by decided cases and not to disturb settled p oints”.
3 Law Commissions Act 1965 (‘LCA 1965’), s 3(1).
codification in the context of Scottish law reform—though the applicability of the conclusion
is certainly independent of its Scottish setting.
The Scottish Law Commission (SLC) is the body best equipped to undertake legitimate, large-
scale codification projects, thus providing the basis for the Scottish Parliament to pass codes
into law. Law Commissions are councils of legal experts charged with advising the
governments to which they report of changes they believe would improve the law. They exist
independently of government and though they hold no coercive power over the state, their
influence is plain to see in the statute books—particularly in Scotland.4 As will be established,
it may be useful to consider the Law Commission as the ‘wise old man’5 to the protagonist of
state, valued for sound judgement based on reflection and experience.
Alongside the comparison of common and civil law, this essay compares the two methods of
problem-solving which are inherent in these respective systems, i.e. inductive and deductive
reasoning. Bertrand Russell explains the problem of inductive reasoning:
“The man who has fed the chicken every day throughout its life at last wrings its neck
instead, showing that more refined views as to the uniformity of nature would have
been useful to the chicken.”6
The chicken’s assumption was wrong and cost it dearly. Inductive reasoning (or induction) is
an argument from the particular (I have been fed every day) to the universal (I will probably
be fed every day).7 This will be returned to later, suffice it to say that the chicken’s view is the
same view that is fundamental to the common law system. In opposition to induction is
deductive reasoning (or deduction)—i.e. an argument from the universal to the particular.8 A
method of reasoning no less flawed, as will be demonstrated later in this essay. For now, it may
be said that deduction is fundamental to the civil law system.
4 For a concise appraisal of a law commission’s role see Lord Hope of Craighead, ‘Do We Still Need a Scottish
Law Commission?’ [2 006] 10 Edinburgh Law Review 10; For gene ral commentary on the legitimacy of law
reform see Geoffrey Sawer, ‘The Legal Theory of Law Reform’ [1970] 20 The University of T oronto Law
Journal 183.
5 Carl Gustav Jung, Two Essays on Analytical Psychology (London 1953) 108. Also known as the ‘Senex’ –
which translates as ‘the old man’ in Latin.
6 Bertrand Russell, The Problems of Philosophy (first published 1912, Dover Publications 1999) 43.
7 This form of reasoning is used by the empiricists including Francis Bacon and J.S. Mill. Empiricism is the
view that experience is the source and test of all knowledge. Its adherents include the Stoics and Epicurus in the
antiquity and Hobbes, Locke and Hume in the 17th and 18th centuries.
8 This is the reasoning of Aristotle, and later the rationalists, whic h found its way to Ancient Rome (a synonym
for civil law is ‘Roman law’)—the birthplace of civil la w. Rationalism is the view that considers reason the
primary source and test of knowledge. Its adherents include P lato and Aristotle in the antiquity and Spinoza,
Descartes and Leibniz in the 17th and 18th centuries.
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