Article by Esin Örücü
Scotland has a simple mixed system with an unusual history that reflects the migration of law from different sources occurring through seepage, imitation, inspiration, reception, and imposed reception. Her mixedness is ongoing and the role of Scottish jurists in the process has been significant at different stages of her history. The distinctiveness of Scots law, though always remarked upon, has not always been appreciated, as it existed within a unitary state with divergent legal systems.
Today with devolution and the impact of the Human Rights Act, Scotland is poised to catch a new opportunity. There is renewed interest in the state of Scots law, an interest growing also in Europe where it is sometimes regarded as a model for the new ius commune that is emerging. Scottish scholars' contribution to various European projects is impressive.
The mixedness of Scots law that became prominent at the beginning of the eighteenth century had its first renaissance in the early twentieth century with attempts to preserve its separateness and distinctiveness. That renaissance bears the mark of the “purists” and reflects Scottish nationalism.
This Article suggests that the twenty-first century will be the second renaissance for Scots law. This period will show its distinctiveness and mixedness but not its separateness. The pragmatism that will take Scots law forward will still use the mixedness but build on it, thus opening Scotland to other influences and allowing cross-fertilisation rather than adherence to a one way trajectory. This can only be done if the Scottish judge and jurist can be dynamic and creative as Scots law faces this second renaissance. This Article also probes into the question: What will be the nature of this ongoing “mix” in our century?
About the Author
Esin Örücü. Professor of Comparative Law, University of Glasgow, and Erasmus University, Rotterdam.
Citation
78 Tul. L. Rev. 89 (2003)