Legal Method: Legal Problems
The Blog is interested to see the publication by Dale McFadzean and Gareth Ryan of the volume Legal Method by DUP in the series Law Essentials. The work is full of all kinds of useful assistance in finding legal materials and the correct way to cite them. It should be of great help to undergraduates working on dissertations.
What this Blog finds curious, even worrying, is the potential misrepresentation of Scots law that could result from uncritical reading of this otherwise admirable work. On p. 3, it analyses legal systems into Civil law ones, common law ones and hybrid. So far so good. Civil law ones are described as having been influenced by Roman law and are largely identified with codified systems; common law ones "have developed quite independently of the influence of Roman law." Instead of being codifed, they are characterised by use of precedent. Common law systems have been "greatly influenced by English law". Scots law is hybrid and has developed "in such a way that it does not conform exclusively to either civil or common law". Instead it is a mixed system, which is described as one "in which one can discern elements of civil or Roman law but also the influence of common law and precedent". Fair enough; the crudity is necessary in such a work. The authors add: "This is certainly true of Scotland where, for example, the branch of criminal law is almost wholly derived from common law whereas other branches, such as company law, rely almost entirely on Acts of Parliament which codify them." The naive reader might now think that Scots criminal law is of English origin and that Scots Company law is civilian.
In the discussion of primary sources, Insitutional Writings are described as "codifications of Scots law" (p. 5). This might suggest they are statutes. The role of Institutional Writings is more subtle and nuanced. No mention is made of Roman or civil law which turns up with some frequency in Scottish litigation. In neither the chapter on using a Scottish Law Library nor in the chapters on other sources is there mention of Roman law. Though recognised as a "primary" source, Institutional writings are curiously discussed with secondary sources; nor is their use particularly explained.
This is a very simple, elementary work; one does not wish to turn an elephant gun on it. But the very fact it is so useful, means that students will use it. That it is so misleading about aspects of Scots law is therefore unfortunate. In a future edition, the authors would be advised to reflect on these points.