The influence of Lord Kames (Henry Home) on some of the founders of the United States

The jurist, judge, philosopher and legal historian Henry Home, Lord Kames (1696-1782) was one of the principal representatives of the Scottish Enlightenment. He also shaped considerably the thinking of some of the founders of the United States, Benjamin Franklin, John Adams, Thomas Jefferson and James Wilson. Franklin exchanged ideas with Kames about art and American affairs. For Adams, Kames was an authority on law and legal history, with a singularly critical stance towards the traditional feudal system. For Jefferson, Kames was an authoritative writer on law and a principal influence in the shaping of Jefferson’s own moral philosophy. Wilson made Kames a role model for young lawyers in a new American spirit. Kames’s thought has influenced these four founders of the United States more substantively than has commonly been assumed

The political purpose of the ‘mixed legal system’ conception in the law of Scotland

No abstract available

Money as a legally enforceable debt

Money is usually regarded as a subject in the domain of economists, but it is really a fundamentally legal notion. In fact, it is a creation of the law. Money is a special object of property, and at the same time a form of debt, enforceable by law which ultimately confers on it the quality of money. The concept of dematerialised property assists in describing the concept of money accurately. The article discusses the different types of money, and the creation of money through central banks and through commercial banks by giving credit. It explores the possible legal foundation of this money creation process. The discussion also looks at the legal regulation of money creation in Germany and presents findings from an interview with a practising commercial lawyer in Germany which confirm the author’s thesis that money is a legally enforceable debt

University academics as employees and creators of copyright works: university academics as owners of copyright?

Examines whether the copyright in works created by academics are owned by themselves or their university employers, addressing: (1) the nature of these works; (2) how the academic's contract of service affects his or her employment status; and (3) the meaning of "in the course of employment" under the Copyright, Designs and Patents Act 1988 s.11. Discusses how the issue is treated in the typical intellectual property policies of UK universities

Indirect Sovereignty through Property Rights

The careful distinction between property and sovereignty is a central part of legal thought from the early modern period onwards. But the reality shows that this division is socioeconomically not that clear. Property rights are rights against persons in relation to things, but effectively they can be rights over people in relation to resources and space—notional, conceptual, or real. Examples of this general trend are the international financial system and international intellectual property protection. If one looks at international commercial and banking law and the corresponding regulations, one realizes that the classical understanding of sovereignty in political philosophy and in public law needs to be broadened. In particular, the forms of exercising de facto sovereignty are no longer confined to specific nation states but can increasingly be found with multinational corporations, and the legal instruments are situated more in private and commercial law (scientifically justified by mainstream economics) than in traditional public law and public international law

Scottish Independence: the romantic game

No abstract available

European copyright inside or outside the European Union: pluralism of copyright laws and the ‘‘Herderian paradox’’

The agenda of the EU includes the harmonisation or unification of laws of its Member States for promoting the common market, improving free movement of goods, free movement of capital, free movement of services, and free movement of people. This also applies to copyright law. However, harmonisation or unification of laws through legislation or CJEU decisions does not necessarily further European integration. In the light of recent political and social events, a movement towards further harmonisation, also in copyright law, could even be detrimental to the European cause. This article argues that the more one pursues integration, harmonisation and unification of national laws across Europe, the more one may endanger the fabric and framework of a union of European states. Further legal unification prompts a tendency of the EU Member States to move away from one another. Increased unity causes further diversity, and a certain level of diversity effects unity. This dialectical process can be called the “Herderian paradox”, inspired by the philosophical history of Johann Gottfried Herder (1744–1803) which is outlined in this article. Some of the problematic areas of copyright harmonisation that illustrate the dangers of the “Herderian paradox” are discussed: the concept of copyright work, the interpretation of originality, the role of moral rights, exceptions and limitations, and, as a possible but dangerous remedy to overcome difficulties of harmonisation, EU law pre-emption and intergovernmental treaties outside EU law

The influence of Lord Kames (Henry Home) on some of the founders of the United States

The jurist, judge, philosopher and legal historian Henry Home, Lord Kames (1696-1782) was one of the principal representatives of the Scottish Enlightenment. He also shaped considerably the thinking of some of the founders of the United States, Benjamin Franklin, John Adams, Thomas Jefferson and James Wilson. Franklin exchanged ideas with Kames about art and American affairs. For Adams, Kames was an authority on law and legal history, with a singularly critical stance towards the traditional feudal system. For Jefferson, Kames was an authoritative writer on law and a principal influence in the shaping of Jefferson’s own moral philosophy. Wilson made Kames a role model for young lawyers in a new American spirit. Kames’s thought has influenced these four founders of the United States more substantively than has commonly been assumed

Alchemistic metaphors in comparative law: mixed legal systems, reception of laws and legal transplants

The terms “mixed legal systems” and “legal transplants” are used frequently in comparative law. What they denote exactly, is difficult to ascertain: what does the mixité consist of, what are its ingredients or building blocks; which types of mixité exist, how are legal transplants transformed in the receiving legal system? Comparative lawyers often resort to metaphors when they try to describe and explain these complex phenomena: metaphors from cooking, music, horticulture or biology. Whenever there are mixtures, transformations, or transmutations, metaphors from the philosophical concepts of alchemy are at least equally illuminating. This article discusses the different problems of conceptualising and describing mixed systems and legal transplants by using alchemistic ideas and metaphors. It also gives an introduction to the philosophical concepts of alchemy in outline, and, in the appendix, in more detail, because lawyers are usually unfamiliar with alchemy. Yet, alchemy was central to the historical development of philosophy and the natural sciences, as well as to theology, from antiquity well into the late seventeenth century. However, anyone in search of the mystical and the occult will be disappointed: many serious alchemists in the Renaissance period were predecessors of modern chemists. They were early researchers and scientists, and so were the concepts they developed and believed in

The role of institutional writers in Scots law

Examines the concept of the "institutional writer" in Scots law, and associated characteristics, and comments on the possible emergence and establishment of contemporary institutional writers