New Perspectives in Scottish Legal History by A. K. R Kiralfy Hector L MacQueen

Author:A. K. R Kiralfy, Hector L MacQueen [A. K. R Kiralfy, Hector L MacQueen]
Language: eng
Format: epub
Tags: History, General
ISBN: 9781317949169
Google: HzLJBQAAQBAJ
Publisher: Routledge
Published: 2014-01-09T01:21:44+00:00

Institutional Writings in Scotland Reconsidered*

JOHN W. CAIRNS**

The recent tercentenary of the publication of the first edition of Stair’s Institutions of the Law of Scotland was specially significant because of the status accorded to institutional writings in Scotland.1 Scots lawyers accord to Stair’s work much more importance than, for example, English lawyers do to Blackstone’s Commentaries on the Laws of England. The term ‘institutional writing’ is not, however, without difficulty. Two questions fall to be considered:

1. What is meant by the term ‘institutional writing’?

2. What is the significance of institutional writings in Scotland?

This paper will attempt to answer these questions by discussing four topics: first, the general notion of institutional writing; second, the Spanish and French experience in institutional writings; third, the Scottish institutional works; and, fourth, the special role of institutional writings in Scotland. Treatment of these topics permits development of an argument that, while there is a group of legal works produced in Europe in the seventeenth and eighteenth centuries which may be classed together and described as ‘institutional’, and while there are Scottish writers who belong to that class, the current Scottish conception of institutional writing is of more modern origin, reflecting neither the aims of the institutional writers themselves nor the attitude of their contemporaries to their work. It will further be argued that the modern conception of institutional writing is not only distinct from the historical one, but in some ways self-contradictory. Failure to appreciate that there are two separate conceptions of institutional writing may lead to distorted understanding of the nature of institutional writings and of their role in the development of law in the seventeenth and eighteenth centuries.2

Institutional Writings

Klaus Luig has stressed that in the seventeenth and eighteenth centuries the ius commune, based on the Roman, Canon and feudal laws, became differentiated into various national laws, with collections of mediaeval regional law coming into prominence. He links this with the increase of legislation, the formation ofnational courts and the foundation of chairs of autochthonous law. He argues that the new differentiated national laws were an expression of the independence and autonomy of the nascent nation states of the ancien régime. He further argues that in all countries systematic treatises on such national laws were based on a concept of ‘Institutes’.3 It is important to consider his argument with reference to the general political and social developments of these two centuries so as to give a proper foundation to an account of institutional writings.

Professor Poggi has classified the seventeenth and eighteenth centuries in continental Europe as the period of the absolutist system of rule.4 This was the period of an important shift from the political organisation of the Ständestaat to the constitutionalism and nationalism of the nineteenth century. There was a trend away from political organisation based on estates to the emergence of class society, a trend marked especially by the rise of the bourgeoisie. The mediaeval idea and ideal of empire disappeared to be replaced in Europe by a number of competitive independent states, each considering itself sovereign.

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