Lecture 16-Institutional Writings- 29:10 PDF

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Institutional Writings Who were the Institutional Writers? What authority is ascribed to them? How relevant do they remain today?

Ruleof recognition revisited EU law

ECHR law

Westminster legislation

Holyrood legislation subordinate legislation

An increasingly complicated ruleof recognition EU law

ECHR law

Westminster legislation Holyrood legislation subordinate legislation decisions of the Supreme Court decisions of the Court of Session (IH) decisions of the Court of Session (OH)/Sheriff Appeal Court

Who were the Institutional Writers? Imperatoris Iustiniani Institutiones Corpus iuris civilis (body of the civil law) – Codex (Code) – Novellae (Novels) – Digestum (Digest) – Institutiones (Institutions)introduction- elementary work legislative and juristic literature advanced and elementary literature structured overview (persons, things, actions) Notes- Put together collection of books

Institutions of the Law of Scotland James Dalrymple, Viscount Stair (1619-95) teacher – advocate – judge c 1660 – 1681 – 1693 structured overview constitution – conveyance – cognition elementary? Notes- Philosophy- university of Glasgow- private law of Scotland- dislike for criminal law, had his own structure,- constitutional rights, conveyance of rights and cognition of rights Institutes of the Law of Scotland John Erskine of Carnock (1695-1768) advocate – teacher – pensioner published posthumously in 1773 updated overview elementary? Principles of the Law of Scotland (1754) Notes- University of Edinburgh- updated version- detailed private law of Scotland book Commentaries on the Laws of Scotland George Joseph Bell (1770-1843) advocate – teacher – clerk Treatise on the Law of Bankruptcy (1800) reissued as Commentaries in 1804 structured overview? elementary? Principles of the Law of Scotland (1829)

Beyond the triumvirate of Stair, Erskine and Bell Stair (1619-95) – Erskine (1695-1768) – Bell (1770-1843) Writings frequently treated as institutional • Craig, Ius feudale libri tres comprehensum (1655) • Mackenzie, Laws and Customs of Scotland (1678) • Bankton, Institute of the Laws of Scotland (1751-53) • Hume, Commentaries on the Law of Scotland (1797) Writings sometimes treated as institutional • Mackenzie, Institutions of the Law of Scotland (1684) • Kames, Principles of Equity (1760) • Alison, Principles of the Criminal Law (1832) • Alison, Practice of the Criminal Law (1833)

So what did the Institutional Writers have in common? books on Scots law published c 1650 to c 1850 overview of all or substantial part of Scots law generally structured but not usually elementary How do Institutional Writings differ from other books? What authority is ascribed to them? • sense in which Institutional Writings a source of law • what distinguishes them as ‘Institutional’ is authority • not just ‘description’ but rather ‘prescription’ of law • other works (however impressive) never seen as law • cited more often now but not as authoritative source ‘never read till dead’ Notes Book accurately Summarises the law What authority did the institutional writers originally have? authors and authority author (auctor) as augmentor – Thomas Craig certainty and probability lost sense of probability author as founder or originator – Viscount Stair

Notes- originally is the measure of authority and ownership in modern days

The modern authority of the Institutional Writers since the nineteenth century, accorded binding authority Lord Benholme in Drew v Drew (1870) 9 M 163 …When on any point of law I find Stair’s opinion uncontradicted, I look upon that opinion as ascertaining the law of Scotland… ‘point of law’ – ‘ascertaining’ – ‘uncontradicted’ Stair, Institutions, 3.1.37 …It is also a competent exception that the thing arrested is a proper aliment, expressly constitute, and not exceeding the measure of aliment, Had. Nov. 29. 1622, Adamson contra Kirkaldie and Barclay… Notes- Tells law until contradicted How relevant do they remain today? Lord Normand, Scottish Judicature and Legal Procedure (extra-judicial lecture, 1941) …Stair, Erskine and Bell are cited daily in the courts, and the court will pay as much respect to them as to a judgment of the House of Lords, though it is bound to follow a judgment of the House of Lords whatever the institutional writers may have said… • note: ‘cited daily’ – ‘as much respect’ – ‘is bound to’ • roughly equivalent to a decision of the Inner House • ranks after legislation and decisions of highest court • is this still an accurate account of the legal position? Khaliq v HM Advocate 1984 JC 23 • sale of ‘glue-sniffing kits’ to children by shopkeepers • neither relevant legislation nor previous case on point Hume, Commentaries, vol 1, p 327 …if it [the act libelled by the prosecution] amount to a real injury, it shall be sustained to infer punishment…no matter how new or how strange the wrong… Lord Emslie …The general principle to be discovered from that passage is that within the category of conduct identified as criminal are acts, whatever their nature may be, which cause real injury to the person…

Stallard v HM Advocate 1989 SCCR 248 • husband charged with raping his wife in their home • no charge till 1980s because of passage from Hume Hume, Commentaries, vol 1, p 306 …the husband…cannot commit a rape on his own wife, who has surrendered her person to him… Lord Emslie …even if the sentence in Hume…contained a sound statement of the law of Scotland then, the reason or supposed justification for that immunity has long since vanished…

Where do these cases leave the Institutional Writers? • source of binding principles and propositions of law? • how often are both legislation and precedent lacking? Dewart, Scottish Legal System, p 166 …it is rare for Institutional Writers even to be cited in court, in part because the tide of precedent and statute has washed over so much law in the last 100 years…Their primary role today is thus, perhaps, to supply a moral and intellectual sheet anchor for the law, providing stability while not excluding change… …rare…precedent and statute…sheet anchor… Bowers v Kennedy 2000 SC 555 • defender acquired land surrounded by pursuer’s land • used road across pursuer’s land • pursuer sought order against use • precedent referred to ‘servitude’ • Act provided for ‘prescription’ Stair, Institutions, 2.7.10 …free Ish and Entry are implyed in the very right of Property, though not exprest…and it is a necessary effect of Property, rather than a Servitude … • found the defender was entitled to cross over the land • Stair and other institutional writers provided authority Frank Houlgate v Biggart Baillie 2013 SLT 993 • Frank Houlgate persuaded to lend money to Cameron • received security over property Cameron did not own • Cameron’s solicitor discovered fraud but told nobody • Houlgate persuaded to make further loan to Cameron • was solicitor liable as ‘accessory’ for failure to notify? Stair, Institutions, 1.9.5 …Accession to Delinquence…is by Connivance, in foreknowing, and not hindering these whom they might and ought to have stopped … • solicitor held liable despite lack of intention to assist fraud Dewart revisited …it is rare for Institutional Writers even to be cited in court, in part because the tide of precedent and statute has washed over so much law in the last 100 years…Their primary role today is thus, perhaps, to supply a moral and intellectual sheet anchor for the law, providing stability while not excluding change… • how rare is citation of the institutional writers today? • questions arise to which these works provide answers • those answers can still be authoritative in some cases • thus more than a ‘moral and intellectual sheet anchor’ • rank alongside decisions of the Court of Session (IH)

An increasingly complicated ruleof recognition EU law

ECHR law

Westminster legislation Holyrood legislation subordinate legislation decisions of the Supreme Court decisions of the Court of Session (IH) decisions of the Court of Session (OH)/Sheriff Appeal Court...