Table of Contents

Elgar Encyclopedia of Comparative Law, Second Edition

Elgar Encyclopedia of Comparative Law, Second Edition

Elgar original reference

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.

Chapter 62: Scots law*

Hector L. MacQueen

Subjects: law - academic, comparative law

Extract

Modern Scots private law is the product of a mixture of the civilian and the common law traditions. It may be unique among mixed systems, because it is not one where a civil law system was overlaid by the common law, as in South Africa, Louisiana, Quebec or Sri Lanka; rather mixture in some shape or form seems always to have been present. Certainly Scots law is the only major mixed legal system in Europe. Opinions vary as to the consequences of being a mixed system. It can be described as a seat on a fence, not very secure, but offering the conspicuous advantage of a view on both sides (Cooper, 1957, p. 201). It has also been said to be a potential bridge between the civil and common law traditions, of potential importance for the development of a European private law within the European Union (Zweigert and Kötz, 1998, p. 204). On the other hand, there is the criticism that the Scottish mixed system is essentially a muddled one which is in a state of transition leading inexorably, given the proximity and strength of the English model, to a common law system in substance as well as in many aspects of form (Evans-Jones, 1998).

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