The political purpose of the ‘mixed legal system’ conception in the law of Scotland

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 of this fairly cryptic account, some 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 mixité 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 rosé 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.

Perhaps one may start with an account of the generally accepted understanding, amongst Scots lawyers, of a mixed system’ or the ‘Scots law mix’. ⁷ Scots law, before the Act of Union with England in 1707, was generally part of the Roman-law based ius commune that was present on the European continent. There is the idea that English law encroached on Scots law mostly from that time onwards, exacerbated by the fact that in civil law matters the highest court of the country was the (English) House of Lords. ⁸ But modern scholarship has shown that the influence of English law started much earlier than the Union between Scotland and England, probably from the beginning of the development of the respective jurisdictions. ⁹ Plans to unify Scots and English law after the Scots King James VI ascended to the throne in 1603 failed, not least because England feared an imposition of the civil law on their legal system. As of the early 18th century, Scots law was already a mixture between Scots law in the ius commune civil law tradition on the one hand and English common law on the other. ¹⁰

The influence of English law on Scots law increased strongly in the 19th century, particularly in Victorian times with English case law and the introduction of principal commercial law statutes, ¹¹ such as the Sale of Goods Act 1893, which is essentially still in force today as the Sale of Goods Act 1979 (as amended). The exact relevance of the different elements of the mixture has always remained controversial among Scottish legal scholars. For some scholars, Scots law is civilian at its core, with influences and changes by English law; others consider it a genuine mix between both legal systems. ¹² Some emphasize that the mix contains important elements of Canon law and Scots customary law. ¹³ If a tentative answer can be found at all, it would depend very much on the historical period and on the particular area of the law in question. Here we also enter the debate about the interpretation of the legal ‘mixité’ by Scottish legal nationalism, which will be dealt with separately. ¹⁴ The following examples illustrate how this ‘mixité’ is realized in practice in the law of obligations and the law of property respectively.

B. Contract

The exact mix of civil and common law elements within Scots law depends upon the subject area under analysis. In contract law, the main source of law is case law (Scots ‘common law’) and custom. Partial statutorization and quasi-codification ¹⁵ of certain areas of contract law with statutes that are applicable for the whole of the UK, such as the Consumer Credit Act 1974, the Sale of Goods Act 1979, the Unfair Contract Terms Act 1977 and now the UK Consumer Rights Act 2015, have shaped Scots contract law, although it is difficult to say whether these UK statutes can be regarded as distinctively ‘English’ imports. Within the Scots common law (case law) of contract, Scots law is different from English law in relation to certain specific points: the absence of the doctrine of consideration, the recognition of contracts for the benefit of third parties (which has only existed in England following the entry into force of the Contracts (Rights of Third Parties) Act 1999), ¹⁶ the primary remedy of ‘specific implement’ (specific performance) as opposed to mere damages for breach of contract (although Scottish legal practice differs little from England in this regard), ¹⁷ the absence of a distinction of contractual terms between conditions (fundamental terms, leading to rescission of the contract in case of a breach) and warranties (allowing damages only for breach). ¹⁸

Some areas of contract law are a clear mixture of Scots and English law, for example the law of error, but in this case the mixture is an unfortunate muddle. ¹⁹ The reason is that in the 19th century, Scots law imported the English concept of misrepresentation, ²⁰ a part of the law of tort (although it appears in the context of the formation of contracts), ²¹ while the ‘classical’ Scots law of error is conceptually a part of contract law, because of the idea that it is a remedy that deals with a defect in consensus in the process of forming a contract. With this idea of ‘error’ as a flawed and remediable consensus, Scots contract law is civilian: it focuses on the erring party, while in the originally tortious English law remedy of misrepresentation the focus is on the misrepresenting party. ²² As the civilian concept of error and the English concept of misrepresentation are irreconcilable, Scottish courts in reality consider error cases as strictu sensu misrepresentation cases or, depending on the facts and interpretation, situations of error are dealt with as breach of contract events, without touching the complex area of error at all. ²³ This approach is, of course, influenced by English law, in contrast to the civil law systems in continental Europe which distinguish more clearly between defects in formation and defects in performance of the contract, and organize their remedies accordingly. ²⁴

C. Delict (Tort)

Regarding torts, the Scots law of delict, as is the correct name, is indeed a law of tort, but not the law of a number of torts, meaning that there is an overarching principle of extra-contractual liability and reparation. This overarching principle is based on the Roman law actio legis Aquiliae, as developed further by the ius commune, particularly by the usus modernus pandectarum in the 17th century. ²⁵ In theory this is important, because Scots lawyers may interpret the case law, which is the principal source of the Scots law of delict (as in contract), not incrementally on a case-by-case basis, but against a certain intellectual framework. In practice this is rather irrelevant, especially regarding the tort of negligence, which is by far the most important tort.

The example of the tort or delict of negligence shows that there are essential areas of private law which, in practice, differ very little between England and Scotland. ²⁶ In such areas the idea of a ‘mixed system’ becomes very difficult indeed to ascertain. This is demonstrated by the fundamental negligence case of Donoghue v. Stevenson, the case that states the famous general duty of care rule in the form of the ‘neighbour principle’. ²⁷ In the view of some writers, Scots law has influenced English law in this ambit of law. ²⁸ It is true, the case originated in Paisley (which is a town situated just outside of Glasgow), but thereafter its Scottish pedigree becomes more obscure. All judges, including the otherwise dissenting ones, proceeded on the basis that the English and Scots law on negligence were already the same at that time. ²⁹ It has been shown that Lord Atkin probably convinced the Scottish judge Lord Macmillan to delete all references to Scottish authorities in the second draft of his speech so as to also make it an unquestionable precedent for English law, ³⁰ but there is divided opinion about the interpretation of this finding. One view regards this as a proof that the Scottish authorities would not have added much to the ruling and could therefore be omitted, ³¹ while others see this act as showing that the formulation of a general principle of liability for negligence (in its degree new to English law) in fact constituted the Scottish contribution, ³² especially Lord Macmillan’s reference, in his first draft, to the institutional writer Erskine (1773). ³³ Erskine’s mentioning of a ‘neighbour’ in the context of a (general?) ³⁴ delictual liability rule was considered to be the likely cornerstone of Lord Atkin’s definition of the neighbour principle. ³⁵ Traces of a more generalizing approach to liability for negligence could also be found at about the same time in writings by Lord Kames (1778). ³⁶

General principles, even with regard to negligence, are not confined to civil law and mixed legal systems, such as that of Scotland. In English law, the case of Le Lievre v. Gould ³⁷ (limiting the general principle rendered in Heaven v. Pender ³⁸ by recourse to the notion of proximity, on which Lord Atkin relied in his speech), ³⁹ already contained a kernel of a general principle of duty of care based on a proximate relationship. It is also questionable whether the approaches of the ‘English’ (rather: Welsh) Lord Atkin and the ‘Scottish’ Lord Macmillan in Donoghue show any significant difference in effect. ⁴⁰ US-American lawyers may point to the slightly earlier Palsgraf case which was heard before the Court of Appeals of New York in 1928, ⁴¹ and where a similar principled approach to liability for negligence was followed.

Whatever the exact situation in Donoghue, one may say that it is ‘certainly not impossible that the Scots law played an important role in reassuring the majority that a generalised principle of delictual liability – with proper limits – could indeed be formulated’, ⁴² but that in effect does not change much in the present context of the discussion. If the contribution of Scots law to English law in Donoghue lies in the principled approach to the law of negligence (as opposed to an incremental approach in the English common law) ⁴³ , then the resulting neighbour principle can be seen as somewhat at odds with Scots law itself. As stated already, in ‘classical’ Scots law, delictual liability is indeed based on the principles of the actio legis Aquiliae ⁴⁴ (in the shape of the usus modernus) in accordance with the legal tradition of the civil law systems. ⁴⁵ In the civilian tradition, liability is founded on the general concept (‘damnum iniuria datum’) that compensation for a loss or damage (damnum) ⁴⁶ must be made if it has been caused (in the sense of a condicio sine qua non) by an unlawful (iniuria) and culpable (culpa) act. ⁴⁷ The aquilian liability rests on culpa (fault). However, in the era of natural law, attempts were made to develop a principle of strict liability on the basis of alterum non laedere, but these theories did not succeed. ⁴⁸ The fault-based aquilian system was the concept which prevailed in the civil law countries, especially owing to Savigny and the Pandectists in Germany in the 19th century. ⁴⁹

The neighbour principle in Donoghue, even if it is indeed rooted in some way in Scots law, is not in line with the Lex Aquilia, because it is not strictly speaking fault-based, but establishes a general rule of an actual duty of care owed to a certain group of persons, ⁵⁰ and that is the foundation for a compensation claim if the breach of that duty has caused damage. In Civilian terminology, one could say that the common law duty of care principle establishes that the breach of duty is an unlawful (but not necessarily culpable) act (iniuria) which, for that reason, triggers liability, while culpa (in the narrow meaning of ‘negligence’) under the aquilian system establishes liability for negligent acts because they are also culpable acts (culpa in the wide sense of ‘fault’). The Scots law on negligence as it went into Donoghue was then a Scots common law, not the aquilian Scots Civil Law. This Scots common law rule emerged as a result of a convergence of Scots and English laws in the 19th century in this area, when there was a rise of negligence cases as a result of industrialization. ⁵¹ Thus, if Donoghue contains a Scots law contribution, then it is not a clearly discernible result of the civilian tradition which is supposed to be the distinguishing factor in relation to English law, and which is the essential ingredient that gives rise to the ‘mixed system’ of Scots law.

D. Property

While the Scots law of obligations has been profoundly shaped by English law, Scots property law is essentially civilian in nature. One can take the view that, taken in isolation, Scots property law is not really ‘mixed’ at all because it is Roman at its core. Its fundamental concepts, such as real rights, traditio, possessio and accessio, originate from Roman law. ⁵² In particular, it embodies the idea of a single and indivisible dominium as ownership and absolute entitlement, instead of the English concept of title with (theoretically) relative entitlements, whereby the strongest of competing titles prevails, and whereby the entitlement is defended by torts (especially by trespass and conversion). ⁵³ The civilian method for the protection of property is the rei vindicatio (action of delivery), but Scots law has not adopted the rei vindicatio in the strict sense. ⁵⁴ More recent antiquarian and historicising discussions to revive the ancient Scots law remedy of spuilzie (unlawful taking away or meddling with movables in another’s – owner’s or lawful possessor’s – possession and without the owner’s consent) ⁵⁵ have had no effect. ⁵⁶ The idea is to re-establish spuilzie, itself probably a further development derived from the actio spolii of canon law, ⁵⁷ to create an equivalent to the rei vindicatio and to make Scots property law more ‘civilian’ in its nature.

The most important feature of Scots property law is the absence of a division between legal and equitable ownership that is characteristic of English property law. ⁵⁸ The English trust is founded on this legal concept of simultaneous and different qualities of ownership. ⁵⁹ Hence Scots law does not have an institute that is equivalent to the English trust. What is called a ‘trust’ in Scots law is really a kind of extended fiducia based on contract, in that the trust property may be conceptualized as being held as a special patrimony (a discrete estate), separate from the general patrimony of the trustee, so that the creditors of an insolvent trustee are also bound by the entitlement of the beneficiary to that special patrimony. Furthermore, Scottish trust law recognizes real (proprietary) subrogations, so that the proceeds of sale obtained for trust property sold become part of the trust property. ⁶⁰ There is, however, no clear statement as of yet from the Scottish courts that has adopted and focused on the academic analysis of general and special patrimony.

In summary, Scots property law can only form an ingredient for the making of the mixed system of Scots law, if, rather arbitrarily, the law of obligations is also added to the mix.

Thus the conception of a ‘mixed system’ can be administered quite flexibly; it can be tailored in a broader way (property law with the laws of contract and delict), or more narrowly (within contract, for example the law of error), or may even be postulated as having an inverse effect (Scots law influencing English law, and not even a ‘classical’ civilian concept that is normally supposed to characterize Scots law, but a Scots common law idea of some kind, such as in the tort/delict of negligence). One starts to notice that the idea of the ‘mixed system’ of Scots law is not only the result of a disinterested analysis of a status quo of facts, but also a passionate social construct of legal scholarship, or of outright politics.

A. The features of Scottish legal nationalism and examples from private law

The emphasis on the mixed nature of Scots law (being understood in its narrow meaning as a mix of civil and common law as the distinctive characteristic) is mostly the product of Scottish legal nationalism. This movement emerged in the late 1950s, and was strongly represented at Scottish law faculties, with T.B. Smith (1915-1988) as its leading academic figure. ⁶¹ Ten years ago Scottish Legal Nationalism was still dominant in Scottish law faculties, but it seems to have started waning over the last few years. A description of Scottish legal nationalism in a nutshell is best left to its detractors, who could provide a pointed, perhaps exaggerated, but concise and in my experience accurate description of this phenomenon – something which T.B. Smith and his followers with their penchant for legal and historical mysticism, sonorous affectation and with their almost meticulous imprecision apparently never quite managed to achieve with satisfactory clarity. In his well-known critical summary in 1976, the late Ian Willock identified the following hallmarks of the ideology of Scottish legal nationalism: Scots law, characterized by an adherence to principle rather than precedent, reflects authentically a Scottish Volksgeist, and Scottish juristic writers and judges have a duty to voice these qualities. It is argued that the influence of English law through the UK Parliament and the House of Lords (now the Supreme Court) endangers the integrity of Scots law which needs to be saved. In particular: ⁶²

The salvation of Scots law lies [for Scottish Legal Nationalism] in drawing upon its own historical roots and upon the experience of other “mixed” systems, such as those of South Africa and Louisiana, where too a basically Roman civilian system is threatened by infiltration from other legal traditions. (…) Scots law has a destiny to be a bridge between the common law and civilian systems within the European community.

It must also be mentioned briefly that the concept of the ‘mixed system’ is white and Western, a point that is particularly delicate with regard to South Africa, often seen as the most important jurisdiction that is similar to Scotland insofar as is adheres to the ‘mixed system’ concept. ⁶⁷ During the Apartheid era, the African customary laws were naturally and self-evidently omitted from the conception of a ‘mix’ between civilian Roman-Dutch and common law traditions in South Africa, and that had never been questioned by Scottish legal academics. However, this exclusionist definition carried on in the international discourse of mixed systems, indeed as late as 2001, when a book entitled ‘Mixed Jurisdictions Worldwide’ appeared that omitted the customary law component in the South African country report entirely and did not mention Botswana and Zimbabwe at all, although both countries have the same ‘mixed system’ situation as South Africa. ⁶⁸ This disturbing segregating element of the mixed system idea, both conceptually and practically, which one may regard as inherent in the present Scottish ‘mixed system’ conception rather than as an undesired side-effect, has not been considered as a problem to the present day.

Another revealing analysis about the nationalistic functionalization of Scots law comes from Alexander McCall Smith (who later became a well-known fiction writer) who wrote in 1976:

[Scots] law has itself become the object of a (…) myth. Maintained after the Union as a focal point of Scottish identity it rapidly became a museum piece even escaping, until comparatively recently, the attentions of historical jurisprudence. After the heyday of anglicising influence Scots law became something of a political football, the object of fierce and in some cases unquestioning loyalty. (…) It is hardly surprising (…) that Scots law has struck a defensive position during the 20th century. At the time when other legal systems were undergoing rapid transformation to equip them to deal with the demands of modern conditions, Scots law suffered from conservative courts, inadequate legislative attention and a paucity of academic commentary and criticism. Although “legal nationalism” tends to accomplish nothing in concrete terms it could hardly be regarded as an unexpected reaction to the insensitive treatment that the law had received. ⁶⁹

In Sharp v. Thomson, ⁷¹ the (simplified) facts were that the buyer of a flat paid the purchase price and was let into possession of the property, but the registration of the buyer’s ownership in the land register got delayed. Before registration took place, the seller became insolvent. Since conveyance of ownership has formally not been completed before registration, the seller’s receivers could claim the flat for the seller’s estate, through the operation of an existing floating charge which had crystallized due to the insolvency. The Scottish Court of Session, both at first and second instance, decided that the flat would be caught by the floating charge since the flat still belonged to the seller at the time of the insolvency. ⁷² The House of Lords reversed this decision, declaring that the flat was no longer part of the seller’s assets and the buyers took the flat free of the floating charge. The House of Lords effectively argued that the seller was, strictly speaking, still the owner of the flat, but in a case like this, one has to look at the substance, not only the form: here the seller retained the form of ownership, but he had lost the substance. That being so, the flat was no longer the ‘property’ of the seller and therefore not subject to the floating charge. ⁷³

Scottish legal academics quickly noticed that this argumentation derived essentially from the English law of equity, ⁷⁴ something that has no equivalent in Scots law. ⁷⁵ The shrill outcry against this decision among Scots lawyers was remarkable and heartfelt. Two statements may be given as a pars pro toto for the debate: ‘“What is the ratio of Sharp v. Thomson?” became a favourite examination question. It was unanswerable as a Zen koan, but, unlike a koan, there was no bliss of enlightenment’. ⁷⁶ And furthermore, ‘In Sharp v. Thomson the problems caused by the floating charge came within an ace of destroying Scottish property law’. ⁷⁷ It needs to be added here that the floating charge is itself a creature of equity and an import into Scots law from English law by statute in 1961. ⁷⁸

On the basis of a later case, Burnett’s Trustee v. Grainger, ⁷⁹ the decision in Sharp has been interpreted as being restricted in authority and only applicable to the special situation of floating charges. Thus, the story of Sharp v. Thomson was essentially the story of saving Scots property law from being ‘polluted’ by English law and, effectively, from becoming mixed. The answer to whether this has been achieved by the nationalistic posturing of various academics or simply by the reasonable consideration that an essentially desirable legal outcome must be reconciled with the principles of the legal system in which this goal is to be attained, depends mostly on the ideological position of the commentator.

Another battlefield of Scottish legal nationalism is the floating charge itself (a security right over a class of fluctuating moveable assets of a company, such as its stock), originally an import from English law ⁸⁰ and growing out of the English law of equity, as was said before in the context of Sharp v. Thomson. Some authors were therefore in favour of the abolition of the floating charge in Scotland. ⁸¹ Since the Scottish system of property law follows the principles of Roman law, the English concept of the floating charge is incompatible with Scots law, because the floating charge enables a lender to obtain security over a category of moveable assets (even incorporeal ones, like book debts) or over all moveable assets of a company without determining the individual assets at the time of the grant of the security right and without the requirement of actual delivery. That is in contrast to the requirements of Roman law-based security rights over moveable property, especially the pledge. ⁸² The introduction of the floating change into Scots law was the result of practical commercial considerations. ⁸³ Nevertheless it has been argued that the floating charge is incompatible with Scots property law, and its effects should be emulated by methods that fit the principles of the ‘mixed system’ of Scots law (which is with regard to property law rather Roman and not so much mixed). It has also been said that the creation of a security right without delivery can be achieved with other forms of non-possessory security rights that are recognized by civil law systems. There are, however, not many equal ones. ⁸⁴ Furthermore, Scots law could be adapted (by legal reform) so as to accommodate the desirable security right over incorporeal assets, especially book debts, by means other than the floating charge. ⁸⁵ It appears that the argumentation against the floating charge hinges less on the commercial effects of the floating charge but on the technical-legal origin from English law. Where Scots law is currently unable to deliver the features of the floating charge, legal reform is proposed, mostly in line with perceived civil law principles. ⁸⁶

A further point of conflict among Scottish legal nationalists is the question of whether the transfer of ownership is abstract or causal in Scots property law. Seemingly an extremely technical question of private law, it nevertheless provides material for a debate. Scots property law, being based on Roman law, clearly distinguishes between contract and conveyance as the two separate requirements for the transfer of property rights. ⁸⁷ Under Scots common law, passing of ownership is supposedly abstract, that is, detached from the underlying contract directed at passing ownership. Thus Scots lawyers maintain that the conveyance of real rights in Scots law is only dependent on (i) the common intention to pass ownership (abstract real contract) and (ii) delivery, but not on the validity of the contract. ⁸⁸ Somewhat anachronistically, some modern Scottish authors refer to Savigny in this regard. ⁸⁹ Regarding immoveable (‘heritable’) property, the abstract nature of the conveyance has never been questioned, ⁹⁰ with references commonly made to the institutional writer Stair (1681). ⁹¹ As to moveable property, the abstract nature of the transfer of ownership in Scots law is not entirely without doubt, because the authorities (institutional writers and court cases) are not very clear about this point if they discuss it at all. ⁹² However, some authors are adamant about the abstract nature of the transfer of ownership even as to moveable property, ⁹³ and some authors have qualified the relevance of iusta causa traditionis to reconcile it better with Scots law. ⁹⁴

The reason behind these endeavours is that, when the ‘English’ Sale of Goods Act 1893 ⁹⁵ became part of Scots law in 1893, it upset the existing system of transfer of ownership that was established under Scots common law. The Sale of Goods Act provided that ownership in (specific) goods passes when the parties intend it to pass (today this is Section 17 of the Sale of Goods Act 1979), and that is, by default, but subject to the parties’ agreement, when the contract is made (Section 18, Rule 1 of the Sale of Goods Act 1979). This consensual (and therefore causal) ⁹⁶ system of transfer of ownership not only ignores the distinction between abstract and causal conveyance, but lets the two carefully separated components of contract and conveyance in Scots law collapse into one, as the principal rule. ⁹⁷ For these and other reasons ⁹⁸ the provisions of Sections 17 and 18 of the Sale of Goods Act 1979 are often still considered as an alien English element within Scots law. ⁹⁹ What is the reason for this opinion, given that the Sale of Goods Act was enacted in Scotland well over a hundred years ago and especially given that the extension of the English Sale of Goods Bill to Scotland was welcomed at the time? ¹⁰⁰ Furthermore, most ownership transfers of chattels were and are effected under the Sale of Goods Act 1893 or 1979, ¹⁰¹ meaning that there was or is little space for Scots common law in practice. As to the passing of ownership at the point of the contract, a Scottish textbook in 1896 remarked that ‘[t]his state of facts exists in the great majority of sales, so that in ordinary circumstances it may be stated that the old theoretical law has been abolished’. ¹⁰² Even the technicality of the separate abstract conveyance, which is far less important in legal reality than theoreticians may think, ¹⁰³ seems to present Scottish legal nationalism with some ammunition, and is used to assert the Scottish position against England. One may speculate whether Scots lawyers would embrace a causal conveyance if the conveyance in English law were abstract.

B. Practical sociological aspects of Scottish legal nationalism

McCall Smith’s assertion that ‘“legal nationalism” tends to accomplish nothing in concrete terms’ remains quite attractive. There is, however, one aspect in which Scottish legal nationalism produces considerable practical effects. The ‘mixed system’ conception acts as a device for the discrimination between Scots lawyers and non-Scots lawyers, and even for the discrimination against non-Scots lawyers, either in practice or in academia, and in this regard Scottish legal nationalism is quite successful. This also affects the teaching of subjects at Scottish universities, quality assessment of research, career progress and so forth. Obviously, there is not much written source material on this sensitive issue. However, in 2006, a senior legal academic and Scottish Law Commissioner at the time lamented:

The chances that a Scottish-trained applicant will be successful, unless the appointment is tied to Scots law, have declined sharply as the academy has become globalised (…) The Scottish law school has thus become (…) staffed increasingly by those who are not Scottish-trained. (Of course there are also great benefits here.). ¹⁰⁴

A. The relationship between Scottish legal nationalism and Scottish nationalism

Over the last few years, a series of major political events have taken place in the United Kingdom: the Scottish Independence referendum on 18 September 2014, which rejected independence by a fairly small margin (55.25% against, 44.65% in favour), ¹¹⁵ the general elections to the UK Parliament on 7 May 2015, in which the Scottish National Party (SNP), the principal political force behind the promotion of Scottish independence, gained 56 out of the 59 Scottish seats in the Westminster Parliament ¹¹⁶ (and subsequently lost 21 seats in the 2017 snap-election, but still nevertheless remain the strongest Scottish party in Westminster) ¹¹⁷ and the referendum decision on the UK’s membership of the EU on 23 June 2016, which saw 52% of the electorate vote in favour of leaving the EU. ¹¹⁸ It is perhaps surprising that these fundamental changes in the British and Scottish political landscape have not yet been mentioned at all in the discussion of Scottish legal nationalism.

In theory, there need not be much difference between Scottish nationalism and Scottish legal nationalism: they share a discriminating or separating/segregating mindset: Scottish/non-Scottish, Scots law/English common law. It is a them-and-us situation, Scottish against English in particular, and one should highlight the matter as it is – if one finds this uncomfortable, then this is so because it is uncomfortable. There is no nationalism, either with special reference to law or in general, which does not aim at a construction of the ‘other’ and a separation therefrom, frequently with the consequence of a supremacist attitude towards the other. ¹¹⁹ An inclusive nationalism is an oxymoron, like dry water, although the present SNP government of Scotland claims to stand for only a ‘civic nationalism’, not ethnic nationalism. This seems, in principle, a better position if one manages to understand what that really means. ¹²⁰ Nationalism is reminiscent of the 19th century, ¹²¹ with the most horrendous effects becoming visible in Europe in the 20th century, and as such is a most troubling element in the discipline of comparative law.

Furthermore, the self-understanding of the ‘in-group’ is typically ascertained negatively, by unfavourable comparison of the ‘other’ to oneself. That being so, one does not ask positively, what is the essence of being ‘Scottish’ or what is really ‘Scots law’, but rather is becomes defined by what it is not: not-English, not-English law, mixed instead with a fundamentally civilian influence, not common law, not civil law. The mixture is itself evidence of a hardly definable and slightly mystical quality, whereby its ingredients (common law, civil law) are rejected or at least a distinction is made between them and the ‘Scottish mix’. But because of its mixité, Scots law is supposedly even superior to (apparently non-mixed) civil law systems, ¹²² and superior to common law, or at any rate, irreconcilably different. This special magic of this unique mixité, seemingly the only one in Europe, can only be understood properly by insiders, Scots, who are chosen to have the cultural background to see and appreciate this, while outsiders, aliens, can naturally never understand that. If one reads the literature of some Scots lawyers on issues of Scots law in relation to English law in particular, that is the inevitable impression one gets from this intellectual atmosphere, regardless of the way in which way that may have been expressed specifically. Therefore, the mixed system conception of Scots law would be a useful strategic weapon in the promotion of Scottish political nationalism.

The real situation is different. The main reason is that, in fact, Scottish political nationalism and Scottish legal nationalism operate in different spheres. There are several explanations for that. Tony Blair’s ideological reform of the Labour Party contributed substantially to the collapse of the political left in Britain, especially in Scotland, and as the result of the general elections in 2015 there was only one Labour MP that represented Scotland in the British Parliament. ¹²³ But since the 2017 snap election, there are now seven (historically there were between 40-50 Scottish Labour MPs), which may be a sign of slight recovery. In this political situation, the government formed by the SNP, ¹²⁴ which represents mostly the current political nationalism, is still able to pose, apparently successfully, as an essentially left-wing alternative to the classical left for which Labour historically stood. Legal academics, who are representatives of Scottish legal nationalism, are, however, for the most part rather conservative, in accordance with the romantic antiquarian conservatism that characterizes Scottish legal nationalism. ¹²⁵ The left-leaning rhetoric with which the SNP canvasses votes may well be inconvenient to them and they may prefer not to be associated too much with SNP political nationalism. ¹²⁶ After it became clear, following the EU referendum in 2016, that the UK will leave the EU (‘Brexit’), the efforts of the Scottish government – trying to alleviate the effects of ‘Brexit’ or, alternatively, to leave the UK to secure EU membership for Scotland in the long run – make the academic technicalities of Scottish legal nationalism appear increasingly irrelevant. Furthermore, Scottish legal nationalists were always Europe and EU-friendly themselves (also serving as a counterpoint to England), so this aspect has been absorbed in political reality without specific reference to the (private) law.

Another reason is that the input of Scottish academic lawyers in the Scottish legislature is presently rather limited, so questions of the mixed nature of Scots law with its various examples and difficulties remain essentially in academic circles, without any influence of this discourse on the law-making. That can only be welcomed, also with regard to an SNP government, because for a modern legislator, technical problems such as the difference between the Scots and the English trust, whether the conveyance of moveable property in Scotland is abstract (apparently classical Scots common law) or causal (English law-influenced Sale of Goods Act) ¹²⁷ or whether there is a quasi-equitable right in favour of purchasers in case of a delayed formal conveyance of land, ¹²⁸ are entirely unimportant. The main concerns in governmental and parliamentary practice are typically issues like employment, affordable housing, consumer protection and so on. Very specialist and theoretical points of private law which serve as fighting dogs in an ideological debate, are naturally and rightly of no relevance outside the small circle of Scottish academic specialists. ¹²⁹

A further ground for the comparative irrelevance of Scottish legal nationalism to Scottish nationalism is the essentially pluralistic debate of the ‘mixed system’ idea in Scots law and of the nature of Scottish legal nationalism. Even ardent nationalists seem to be scholars first and present their research outcome according to orthodox scholarly methods, even when the results do not fit well with the nationalistic narrative. For example, T.B. Smith, one of the founders of Scottish legal nationalism, shows many inconsistencies with his nationalist stance in his opinions (‘The rational and the national T. B. Smith’). ¹³⁰ But he was unable to change or falsify his scholarship in relation to the practical aspects of private law to support a nationalistic position. The same applies to the other ‘nationalist’ scholars of Scots law, as far as I am able to verify that. ¹³¹ We have seen that the idea of the ‘mixed system’ is not only a conception used for nationalistic purposes but, in some measure, also a device to exclude non-Scots from competing in the small market of Scottish legal academics. However, it is an entirely different dimension to re-write scholarly research in order to adapt it to a nationalistic ideology. That would be a route Scottish legal nationalist academics are, it seems, not prepared to take, at least not consciously. The result is a cacophony of different voices about Scottish legal nationalism and the ‘mixed system’ as its principal concept.

This cacophony is encouraging, but it disqualifies academic opinion and scholarship from obtaining a central role in the making and strengthening of Scottish political nationalism. Political ideologies and mass-movements such as Scottish nationalism, currently led by the SNP, require simple statements and answers, a straightforward and unsophisticated narrative, and a clear aim, irrespective of how romantic and irrational this aim may be. Highly specialized academic viewpoints with many different shades, turns in opinion, caveats, friendly academic or unfriendly personal battles, ¹³² and, worst of all, intellectual erudition and scholarly knowledge for the sake of it, are, fortunately, unsuitable for the construction of a legal foundation for political nationalism.

B. The role of Scottish legal nationalism and Scots law – or the law of Scotland – in a possible independent Scotland after ‘Brexit’

A curious result of successful Scottish political nationalism could be the demise of Scottish legal nationalism. In the current political climate, the independence of Scotland from the United Kingdom is more likely than ever in history. Opinion polls in 2015 after the referendum indicated that, ¹³³ and the planned ‘Brexit’ of the UK could support this trend. ¹³⁴ Since Scotland had voted in favour of remaining in the EU in all its constituencies with an overall result of 62% in the EU referendum in June 2016, but does not have a veto or a say in the ‘Brexit’ negotiations of the UK central government with the EU (the UK Supreme Court has recently confirmed this constitutional position), ¹³⁵ this may well fuel the endeavours to seek Scottish independence, something that is in any case part of the political goals of the nationalist SNP government in Scotland. Thus, Scotland seceding from the UK to re-join the EU at the earliest possibility is not unrealistic at present. After the British government notified the EU of the UK withdrawing from the EU Treaties according to Article 50 TEU on 29 March 2017, the Scottish Government has, based on a resolution of the Scottish Parliament, formally requested an order of the British government to allow legislation permitting Scotland to hold a second Scottish independence referendum, perhaps by the end of 2018, or after ‘Brexit’ has taken place. ¹³⁶

If the secession of Scotland from the rest of the UK really happens, then the Scottish Parliament is – or ought to be ¹³⁷ – the legislator of a new country, and the acts it passes are simply Scots law, since they are the statutes of the nation state of Scotland; the same applies to the case law of the Scottish courts. The meaning of the term ‘Scottish law’ or ‘Scots law’ would then be the equivalent of the terms ‘Dutch law’ or ‘Italian law’. It would be a matter for legal historians to discuss whether Scots law is ‘mixed’, and if so, in which way and from when onwards. One would also realize more strongly that civil law systems are often also mixed, by way of example the German law of securities over land, ¹³⁸ or the fusion of droit coutumier and the droit écrit in French law. ¹³⁹ The principal purpose of the concept of the ‘mixed system’, the notional and practical separation of Scots law from English law, would become redundant, because as a new state, Scotland would automatically have a recognized independent national law. The ‘mixed system’ conception would therefore lose its individualizing and differentiating purpose. There is currently no indication that any specific notion of Scots law and its ‘mixité’ will have a significant relevance in the discourse of general political nationalism, be it in a devolved Scotland within the United Kingdom or in an independent Scotland. In either case, Scots law will merely be regarded pragmatically as the legal system, the body of law of the nation of Scotland, regardless of whether it will become an independent state in the future.

Whatever the future of Scotland will be, either in the UK or outside (and then perhaps in the EU at some point), it seems that Scottish legal nationalism has become obsolete, particularly after ‘Brexit’. T.B. Smith, the principal academic founder of this ideology, was a man of a long by-gone era, ¹⁴⁰ and so is the mindset and framework of Scottish legal nationalism. There is still research appearing in praise of T.B. Smith, ¹⁴¹ but such pieces seem to be the last afterthoughts of an antiquarianism that has rightly faded. Scottish legal nationalism has promoted research in Scottish legal history and doctrinal law that is of high academic quality (my own research also benefited immensely from that), but these achievements no longer need the romantic, nationalistic and antiquarian incitement, if they ever needed it at all. If Scotland stays in the UK, the outdated intellectual framework of Scottish legal nationalism does not assist the further development of modern scholarship in Scots law, and if Scotland becomes an independent state, Scottish legal nationalism acting as a bulwark against English law will be redundant. In either situation, Scottish legal nationalism can and should be consigned to history: this will also permit a more disinterested discussion of the mixed system of Scots private law.