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The Place of a Mixed System in the Common Law World*

Published online by Cambridge University Press:  04 July 2014

Lord Hope of Craighead
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Lionel Cohen Lecture
Information
Israel Law Review , Volume 35 , Issue 1 , Spring 2001 , pp. 1 - 23
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2001

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References

1 T.B. Smith (1915-1988) was Professor of Scots Law at the University of Aberdeen, 1949-1958; Professor of Civil Law at the University of Edinburgh, 1958-1968; and Professor of Scots Law at the University of Edinburgh, 1968-1972.

2 Palmer, Vernon V. (ed.), Mixed Jurisdictions Worldwide: The Third Legal Family (Cambridge, Cambridge Univ. Press, 2001) 19Google Scholar.

3 Ibid., at 3.

4 See Lord Rodger of Earlsferry, “Savigny on the Strand” (1993–1994) XXVIII–XXX Irish Jurist 1, 2Google Scholar.

5 The Civil Jurisdiction and Judgments Act 1982, §3(3), as amended, directs that reference be made to the commentaries of M. Jenard and Professor Schlosser as to the interpretation of the Brussels and Lugano Conventions. Although written originally in French, they are available in translation.

6 For example, Lord Goff of Chieveley and Lord Hoffmann were dons at Lincoln College and University College, Oxford, Lord Rodger of Earlsferry was a don at Balliol, Lady Justice Hale was a professor at Manchester University, and Lord Coulsfield, Lord Gill and Lord Clarke, all now Court of Session judges, previously taught law at Edinburgh and Glasgow Universities.

7 Professor Kenneth Reid has rightly described the academic branch as “the third branch of the profession”. “The Third Branch of the Profession: The Rise of the Academic Lawyer in Scotland” in MacQueen, Hector L., ed., Scots Law into the 21st Century: Essays in Honour of W. A. Wilson (Edinburgh, W. Green/Sweet & Maxwell, 1996) 39Google Scholar.

8 Palmer, Mixed Jurisdictions Worldwide, supra n. 2, at 3.

9 The European Parliament has indicated on more than one occasion that there should be a single civil code for European private law. Considerable interest has been expressed in the Corpus Juris project for the harmonisation of the laws and procedures of the member states in the field of criminal law to combat fraud on the Community budget.

10 Palmer, Mixed Jurisdictions Worldwide, supra n. 2, at 3.

11 Pollock, Frederick and Maitland, F.W., The History of English Law before the Time of Edward I, 2nd ed., reissued with introduction and bibliography by Milsom, S.F.C., vol. I (Cambridge, The University Press, 1966) 222–23Google Scholar.

12 Lord Rodger of Earlsferry, “Savigny in the Strand”, supra n. 4, at 15.

13 Ross, Walter, An Historical Account of the Privileges of the Court of Session (Edinburgh, 1785)Google Scholar; The Laws of Scotland: Stair Memorial Encyclopaedia (Edinburgh, Butterworths, 1988), vol. 6, para. 904Google Scholar.

14 The Laws of Scotland: Stair Memorial Encyclopaedia (Edinburgh, Butterworths, 1987) vol. 22, para. 583Google Scholar.

15 SirDalrymple, James, Stair, Viscount, Institutions of the Law of Scotland (1681)Google Scholar; SirMackenzie, George, Institutions of the Law of Scotland (1684)Google Scholar.

16 Act of Union 1707, articles XVIII-XX.

17 Under the Scotland Act 1998.

18 See, e.g., Snell v. Beadle (PC) February 2001 [not yet reported].

19 Lord Rodger of Earlsferry, “Scottish Advocates in the Nineteenth Century: The German Connection” (1994) L.Q. Rev. 563Google Scholar.

20 Preface, Commentaries on the Law of Scotland and on the Principles of Mercantile Jurisdiction, 7th ed. (1870) ixGoogle Scholar.

21 Ibid., at xiii.

22 Lord Chancellor Cranworth, Bartonshill Coal Co v. Reid (1858) 3 Macq 266 at 285.

23 In his Preface to English Private Law (Oxford, Oxford Univ. Press, 2000) xxxiGoogle Scholar.

24 Contract (Rights of Third Parties) Act 1999.

25 See Forte, A.D.M. (ed.), Good Faith in Contract and Property Law (Oxford, Hart Publishing, 1999)Google Scholar.

26 Sale of Goods Act 1893.

27 Carse v. Coppen 1951 SC 233.

28 Companies (Floating Charges) (Scotland) Act 1961.

29 Sharp v. Thomson 1997 S.C. (H.L.) 66.

30 Reid, Kenneth and Zimmermann, Reinhard, A History of Private Law in Scotland, vol. 1 (Oxford/New York, Oxford Univ. Press, 2000) 196Google Scholar.

31 Morgan Guaranty of New York v. Lothian Regional Council, 1995 SC 161.

32 Kleinwort Benson Ltd. v. Lincoln City Council [1998] AC 537.

33 Reid & Zimmermann, supra n. 30, at 4.

34 Zimmermann, Reinhard and Visser, Daniel, Southern Cross: Civil Law and Common Law in South Africa (Oxford, Clarendon Press, 1996)CrossRefGoogle Scholar; Reid & Zimmermann, supra n. 30.

35 English Private Law, supra n. 23.

36 Ibid., at xxxi.

37 “The Law of Scotland” (1925) 37 Juridical Rev. 390Google Scholar.

38 An Introduction to Comparative Law, 3d ed., trans. Weir, Tony (Oxford, Clarendon Press, 1998) 204Google Scholar.

39 See Örücü, Esin, Attwooll, Elspeth and Coyle, Sean, eds., Studies in Legal Systems: Mixed and Mixing (The Hague/London, Kluwer Law Int'l, 1996)Google Scholar.

40 Article 249 EC: Regulations are binding in their entirety and directly applicable in all member states; directives are binding on member states as to the result to be achieved but leave the choice of form and method to the national authorities.

41 Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083), regulation 5; Council Directive 93/13 EEC.

42 The report is controversial and been criticised. See Nigel Morrison, QC, “Approximation of Judiciary Law in the European Union” 1995 Scots Law Times (News) 183Google Scholar; Himsworth, Christopher, “Things Fall Apart: The Harmonisation of Community Judicial Procedural Protection Revisited” (1997) 22 E.L. Rev. 291Google Scholar.

43 See ProfessorGretton's, George contribution “Scots Law in a Golden Age” to Now and Then (Edinburgh, Sweet & Maxwell, 1999) at 168–69Google Scholar.

44 Named after Professor Lando of Denmark, its chairman; see his guest editorial, “European Contract Law after the Year 2000” (1998) 35 C.M.L. Rev. 821Google Scholar.

45 Part of its work has already been published: Lando, O. and Beale, H. (eds.), Principles of European Contract Law (Dordrecht, Kluwer Law Int'l, 1999)Google Scholar.

46 D. J. Hayton, S.C.J.J. Kortmann, H.L.E. Verhagen (eds.) (Dordrecht, Kluwer Law Int'l, 1999).

47 Mixed Jurisdictions Worldwide, supra n. 2, at 451.

48 The Scotsman newspaper, “The Monday Essay”, January 8, 2001.