Weir, J. A.

English

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Louisiana Law ReviewVolume 24 | Number 1December 1963A Short Commentary on the Law of Scotland, by T.B. Smith, Q.C., D.C.L., LL.D., F.B.A., Professor ofCivil Law in the University of Edinburgh.(Edinburgh: W. Green & Son, Ltd. 1962. xx and865 and (appendices, tables and index) 112 pp.)J. A. WeirThis Book Review is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationJ. A. Weir, A Short Commentary on the Law of Scotland, by T. B. Smith, Q.C., D.C.L., LL.D., F.B.A., Professor of Civil Law in the University ofEdinburgh. (Edinburgh: W. Green & Son, Ltd. 1962. xx and 865 and (appendices, tables and index) 112 pp.), 24 La. L. Rev. (1963)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol24/iss1/15BOOK REVIEWS"(3) If police 'practices of this nature are to be legally sanc-tioned, what limitations should be imposed?"(4) With respect to police arrest statutes generally, shouldmore freedom be granted to the police in recognitionof their contentions that existing laws are obsolete andhamper police attempts to meet the public demand foradequate police protection?' 2The impact of the book in its entirety is highly effective.Although at times individual papers, particularly in the foreignlaw section, seem to be unduly concerned with the minutiae ofrule, and lose contact somewhat with broader policy considera-tions, generally the book successfully pursues its objective-"the quest for balance." The inclusion of foreign law commen-taries is certainly appropriate, for, as suggested by Justice Blackin his concurring opinion in Rochin v. California, the search forthe balance "implicit in the concept of ordered liberty" is notthe exclusive concern of the people of the English-speakingworld. This fine book is an articulate witness to the magnificentcontribution which Northwestern University's School of Lawhas long made in the areas of evidence and criminal procedure,and thus a most appropriate outgrowth of its centennial celebra-tion.George W. Pugh*A Short Commentary on the Law of Scotland, by T. B. Smith,Q.C., D.C.L., LL.D., F.B.A., Professor of Civil Law in theUniversity of Edinburgh. (Edinburgh: W. Green & Son,Ltd. 1962. xx and 865 and (appendices, tables and index)112 pp.)Also published as:Scotland: The Development of its Laws and Constitution, by T.B. Smith, Q.C., D.C.L., LL.D., F.B.A., Professor of Civil Lawin the University of Edinburgh. (London: Stevens & Sons,Ltd. The British Commonwealth-The Development of its2. POLICE POWER AND INDIVIDUAL FREEDOM -THE QUEST FOR BALANCE 9(Sowle ed. 1962).3. 342 U.S. 165, 175-76 (1952).4. Palko v. Connecticut, 302 U.S. 319, 325 (1937).*Professor of Law, Louisiana State University.1963]LOUISIANA LAW REVIEWLaws and Constitutions, Vol. 11. 1962. xx and 865 and (ap-pendices, tables and index) 112 pp.)Scotland and Louisiana, Quebec and South Africa have thisin common, that the basic Romanism of their law, variouslymediated, has been materially affected by that of England, domi-nant or irredentist. Of the four, Scotland is the most precarious.Like South Africa, it has failed to give definitive form to itslaw by means of codification, but whereas that Republic hascontrol of its own courts and a law-making body apt to do thewill of the nation, Scotland's statutes come from a legislaturewhere Scots are outnumbered 559 to 71, and its civil appeals goto a tribunal where a majority of the judges are strangers to thelaw they profess to administer. Scotland is not, then, in mattersof law, clearly the master of her fate.The situation, indeed, is so critical that one is weakly tempt-ed to regard the cause as lost. There are very good grounds fornot doing so. Secondary grounds are that the law of Scotland,based on principle rather than precedent, is fitter for progressthan English law; that Scotland should have a system whosemorality is overt rather than surreptitious; that a world largelydivided between the civilian and the common law should retainsome examples of their interaction; and, on aesthetic grounds,that "either oil or water is preferable to the unsatisfactoryemulsion which results from attempts to mix the two."' Theprincipal reason, however, concerns the continued existence ofthe Scots as a distinguishable nation. That they presently feelthemselves to be different from the English is an undeniablesocial fact, although they have no separate language in whichto express and confirm their distinctiveness. This being so, itwould surely be sad to allow to disappear from the Family ofNations a group which has contributed to civilization, inter alia,the first significant Declaration of Independence, an endlessstream of missionaries, colonists and administrators, some greatmoral phliosophy, a familiar beverage, and one Very RomanticQueen. But since a group which can individuate itself only withreference to history is sure to founder in fain~ant archaism, itis essential that some vital institutions remain to which theScottish consciousness may attach itself. There are only twocandidates - the Church of Scotland, already threatened fromwithin by the ecumenical movement, and the Law of Scotland,1. LORD CooPER OF CULRosS, SELECTED PAPERS 191 (1957), cited in SMITH,COMMENTARY 666.(Vol. XXIVBOOK REVIEWSwhich has been increasingly darkened by the malign shadowfrom the south. On Scotland's law depends her soul.In such a crisis it is proper for the committed scholar to ap-pear as the herald, to speak in the imperative rather than theindicative, and to sound the call to arms even by means of aCommentary on the Law. Indeed, a commentary is an ideal me-dium, directed as it is to the young on whose eventual stance thecase depends. Since it is the law as it is which is in imbalance,such a commentary should not be expected to give a balancedview of it. It will be manifesto scholarship, but it need be nonethe less scholarship and may be all the more interesting for thatreason. The cry of the manifesto will be not revolution but re-turn. "Scotland has too often gone awhoring after strange gods,and . . .the time is ripe to return to the juristic altars of ourfathers."'2 So Professor Smith puts it, and admirably sustainshis case in an excellently exciting and illuminating book. If itfails to have effect, the cause was already lost.Readers of this Review may well be surprised at the appear-ance of a single-volume commentary on the whole law of a juris-diction. There are both historical and contemporary justifica-tions for books of this type. They derive from the publicationsof the institutional writers (Stair, Erskine and Bell for privatelaw) whose works have primary authority in Scotland; and theyare used as a guide by students following the compendiouscourse in Scots Law offered by the Universities of Scotland. Infact, since this publication is to be complemented by a volumeon Industrial and Mercantile Law by Professor Gow of McGillUniversity, Professor Smith does not deal at any length withsuch topics as insolvency, corporations, and the particular con-tracts, but he does include, in addition to valuable chapters onthe history and sources of Scots law and illuminating notes onthe legal profession and education in Scotland, such parts ofconstitutional law as are specifically referable to Scotland, crim-inal law and procedure, family law, succession, property, andobligations.This book, as the dual form of its publication indicates, isdirected both to students in Scottish Universities and to readersabroad who want to discover what Scots law is about. Sincereaders of both classes will in any case have to refer to thestandard treatises for a full treatment of any specific point of2. P. 616.1963]LOUISIANA LAW REVIEWlaw in which they are interested, a work like this should not tryto be a pocket Corpus or a portable library. Nor need space bedevoted to subjects in proportion to their practical importance.The first essential is that it should be interesting, the secondthat it should deal in sufficient detail with those topics whichare central to the system, not in the sense that they provide thebulk of litigation but in that they neatly illuminate the methodand genius of the law. In both essentials Professor Smithtriumphs.Examples of such topics are the generalized principle of lia-bility for fault in delict (as opposed to the directional duty inBourhill v. Young,3 and the rule that pecuniary damage inflictedby non-physical means is non-compensable (Candler v. Crane,Christmas,4 now overruled by Hedley, Byrne v. Heller5)), thegeneralized principle of unjustified enrichment, the ius quaesi-turn tertio, the principle of abuse of rights exemplified in prop-erty relations by the law of aemulatio vicini, and the unilateralpromise or pollicitation. Each of these crucial subjects is treatedwith great care and lucidity; thus in summing up the differ-ences between the Scots law of 'error and the English law ofmistake the author observes "Civilian systems are less concernedwith the dishonesty of defenders than with the vitiated consentof pursuers seeking relief on such terms as the courts may thinkjust." This is fine. However, the author is so keen to maxi-mize the differences of Scots law that he tends to emphasizethe principle at the expense of pointing out the limits of its ap-plication. So he takes a very wide view of the obligation ofrecompense, which certainly needs to be carefully restricted, andhe suggests no exceptions to the principle that a person causingdamage by culpa should respond in damages. While it is truethat fundamental principles must be restated when they showsigns of being submerged by specific decisions, students needsome indication of how these principles work in practice. Peterefontes is fine; but we also need a view of the course of the river.In one case at least, the author does not draw all the conse-quences from the principle he adopts; he embraces the doctrineof subjective test of intention in homicide, but would convictthe man whose unreasonable mistake prevented the formationof that intention.3. [1943] A.C. 92 (Scot.).4. [1951] 2 K.B. 164 (C.A.).5. [1963] 3 WEEKLY L. REV. 101 (H.L.).6. P. 810.[Vol. XXIVBOOK REVIEWSThe Louisiana lawyer will be particularly interested in thechapter on trusts, in which Professor Smith clearly shows thatthis institution is not dependent on a bifurcation of jurisdictionsnor yet on a splitting of ownership; Scotland's very flexibletrust developed from the principles of mandate and deposit pluschange of title, and appears to use the principle of unjust en-richment for such tracing of trust property as is permitted. Hewill note, too, that the legislature succeeded as early as 1449in transforming the personal contract of lease into a real rightby means of an act for the relief of "puir tennentes." Theauthor's observations on the law of defamation should also beof interest in a civilian jurisdiction which has had some troublewith that delict; Scots law recognizes an action for solatiumbased on insult (which need not be published to third parties)as well as one based on injury to reputation for patrimonial dam-age (which must be proved). Further, the author sees the possi-bility of basing an action for invasion of privacy either on thenominate delict of contumelia, or on the general principle of lia-bility for harm caused animo injuriandi.In a work which gives a conspectus of such a large part ofthe law, structure is extremely important. The rival publication,Gloag & Henderson's Introduction to the Law of Scotland, con-tains forty-nine equiparated chapters in no rational order, butProfessor Smith has obviously given a great deal of thought tothe matter, and the result, though unorthodox, has much torecommend it. Thus he contrives to produce a "general part"to the private law in which he distinguishes contract from con-veyance and acts (juristic and illicit) from facts, as well as dis-cussing good faith (which, however, does not appear in theTable of Contents). In the main body of private law successionappears sensibly between family law and property, trusts be-tween property and obligations. The last category is treated inthe order quasi-contract, strict liability, delict and voluntaryobligations. It might be suggested that quasi-contract (restitu-tion and recompense) should come at the end, both because it isreally subsidiary remedy and because it is difficult (especiallyif it operates after the reduction of a contract relatively null)to understand its function until the area of operation of volun-tary and delictal obligations has been traversed. Despite suchtrivial objections, the author is to be congratulated for his ef-forts and for their success. Even in codified countries studentsoften have difficulty in seeing the legal system as a map rather1963]LOUISIANA LAW REVIEWthan a list; for Scottish students it must hitherto have beenimpossible.The author is very insistent on terminology, sometimes withgood reason, sometimes without. Thus it is irksome to find himinterpolating "(sc. delictual)" after the term "tortious" in aUnited Kingdom statute; nor need he have added, either in textor footnote, the explanation "anglic6 execution" quite every timehe refers to diligence, especially as he leaves the difficult sen-tence "Housebreaking is not itself a point of dittay" withoutelucidation; nor can any good come of trying to describe breachof statutory duty as "quasi-delict." On the other hand, he iswise to discourage the use of the terms "void" and "voidable"in contractual matters, since their use would facilitate the con-tinued importation of English cases which use those terms withun-Scottish results; again, "culpa" in the sense of fault must bedistinguished from that use of the word negligence which sig-nifies a complete cause of action in tort; and it is interesting tolearn how the Scottish actio injuriarum, used by the relatives ofone wrongously killed by the defender, differs from the processof the same name used by the Romans. The author's fascinationby terms will provide collateral pleasure for the reader who en-joys Sir Walter Scott. He will be delighted to discover the servi-tude known as "Fuel, Feal and Divot," still the cause of un-neighborly dispute in the Crofting Counties; he will learn to dis-approve murmuring judges, stouthrief and hamesucken (visit-ing a man's home to beat him up), and to distinguish spuilziefrom tailzie. For all his pride in his heritage, however, Profes-sor Smith must not be taken for Gothic; he advocates a modernuse of the fertile old principles, and it is for their unprogressiveeffect that he condemns the accretions from abroad.Professor Smith would resent the charge that he is unbiased;no missionary is. Too obvious a tendentiousness, however, mayweaken what is otherwise well said. For example, although hedoes admit the confusion of Scots law on the constitution offormal obligations and the formal means of proving other obli-gations, he might, without weakening his case, have admittedthat England has dealt much more satisfactorily than Scotlandwith the question of the liability of a hospital for its medicalstaff. Odium Anglorum is a proper adjunct of Scots pride, butwhile it usually provokes noble wrath, it occasionally leads theauthor to self-defeat, petulance or disingenuousness. Thus,[Vol. XXIVBOOK REVIEWSinstead of claiming that the Scots lawyer is "impenitentlyunversed in the English law," he could often strengthen his dif-ferentiation of the Scots law by using his Oxford training toexplain the English law rather than damn it. Again, it was mon-strous of Viscount Montgomery to refer to parts of Scotland as"the tribal areas"; but the correspondence column of a newspa-per is a fitter place for the rebuke he merits than page 592 ofthe present Commentary. Lastly, when the author says that"civil jury trial ... has outstayed its welcome"7 he really shouldhave referred to the recent Scottish Commission which voted toretain it.These are minor criticisms. The book is a remarkable one,and will appeal to all who oppose the view that lawyers are con-scripts to dullness, and that the tartan of a colorful personalitymust never peep from the dun of the academic. The furthermerits of this book may be inferred ex contrario from the inde-corous and savage review by one of the author's colleaguesprinted in 26 Modern Law Review 466 (1963).J. A. Weir*7. P. 588.*Fellow of Trinity College and Assistant Lecturer. University of Cambridge.1963]

A Short Commentary on the Law of Scotland, by T. B. Smith, Q.C., D.C.L., LL.D., F.B.A., Professor of Civil Law in the University of Edinburgh. (Edinburgh: W. Green & Son, Ltd. 1962. xx and 865 and (appendices, tables and index) 112 pp.)

https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=3206&amp;context=lalrev

A Short Commentary on the Law of Scotland, by T. B. Smith, Q.C., D.C.L., LL.D., F.B.A., Professor of Civil Law in the University of Edinburgh. (Edinburgh: W. Green & Son, Ltd. 1962. xx and 865 and (appendices, tables and index) 112 pp.)

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