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MacQueen, Hector L. --- "Scots law*" [2012] ELECD 1024; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law, Second Edition" (Edward Elgar Publishing, 2012) 789

Book Title: Elgar Encyclopedia of Comparative Law, Second Edition

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804158

Section: Chapter 62

Section Title: Scots law*

Author(s): MacQueen, Hector L.

Number of pages: 11

Abstract/Description:

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).