ROMAN LAW TRADITION, SCOTTISH CIVIL PROCEDURE AND ADOPTION OF A MIXED SYSTEM OF JURISPRUDENCE

Abstract

The law of Scotland differs from the rest of the UK by its inheritance of Roman law and its composition of both common law and civil law. The fusion in a non-codified ‘mixed jurisdiction’ stems from legal principles that have been drawn from both the civilian (i.e. Roman law) and English common law traditions. It owes its Civil law origins to the jurists who developed the causes of action in the civil courts and are the institutional writers in the Scottish legal tradition. This was a gradual process that oversaw the Roman-Scots law of the early formative period that later came under the influence of English law after the Act of Union in 1707. The consequence was a legal system which drew from both the great European traditions whilst containing distinctive elements of its own. In this paper there is an examination of the historical development of Scots law, and the concepts drawn from English common law that became necessary when the House of Lords became the final court of appeal. The cause of action in common law were integrated into the civil procedure while retaining the action in delict that was related to claims for civil injuries. There is a comparative approach with the principles drawn from the South African law that has also the elements of both common law and Roman Dutch law in its framework.  The argument is that in contemporary proceedings the mixed system of substantive law is beneficial because it is based on practiced tradition and a diverse system has the ability to survive with procedural changes to the modern sources of law.