Journal of Civil Law Studies


Stephen Thomson


Scotland is typically regarded as a mixed jurisdiction based on an assessment of its combination of civilian and common law traditions. If this narrow definition of “mixture” is opened up, one will find several other traditions which are constituent parts of the Scottish legal tradition. Those range from the seemingly remote Celtic and udal law, through feudal and canon law, to the law of the European Union and the European Convention on Human Rights. An holistic approach to the question of mixture requires that each of these traditions is accounted for, especially because of the difficulties in assessing the legacy of any given tradition. Those difficulties are exacerbated by the fact that legal traditions are indiscrete or “impure”, having been the subject of influence, modification, contamination, borrowing and so forth. They have mixed with other traditions, and some have conveyed parts of others. By focusing on the civilian and common law traditions, we risk adopting a reductionist approach to the question of mixture by essentially excluding vital parts of the story: which other traditions were (or are) part of the mixture, which parts disappeared or were subsumed into other traditions, which aspects of one tradition were conveyed by another. An holistic approach also recommends that the predominantly private law oriented focus of the literature is opened up to analysis of public law and criminal law. That will likely bring out further aspects which show that the pedigree of Scots law is a mixture, not only of civilian and common law ingredients, but also of other diverse traditions.

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