Chapter

Two Toms and an Ideology for Scots Law: T B Smith and Lord Cooper of Culross

Hector L MacQueen

in A Mixed Legal System in Transition

Published by Edinburgh University Press

Published in print July 2005 | ISBN: 9780748623358
Published online March 2012 | e-ISBN: 9780748651467 | DOI: http://dx.doi.org/10.3366/edinburgh/9780748623358.003.0003
Two Toms and an Ideology for Scots Law: T B Smith and Lord Cooper of Culross

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This chapter focuses on the ‘Cooper–Smith ideology’, which can be summarised broadly as follows. Modern Scots law was a ‘mixed’ legal system, in which a basically Roman law or Civilian structure of private law had been overlaid since the 1707 Union by influence from the English Common Law. The principal agents of that influence had been the common legislature in Westminster, UK government departments in Whitehall, and the common appeal court in the House of Lords. The influence from England had rarely if ever been for the good. The salvation of Scots law lay in drawing upon its own historical roots and the experience of other ‘mixed’ systems, such as those of South Africa and Louisiana, where too a basically Roman Civilian system was threatened by infiltration from other legal traditions.

Keywords: Scots law; private law; mixed legal system; Cooper–Smith ideology

Chapter.  14754 words. 

Subjects: History of Law

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