The Scottish Legal System - What Next? Scots Law as a Civilian System - A Response

Abstract

Lord Gill’s account of Scots Law as a Civilian System begins by accepting that the ‘Scottish romantic school of jurisprudence’, with its emphasis on Roman law, paints ‘an affecting picture’, but it certainly ‘not going to see us through the trials that lie ahead’. Such seems to provide a fair assessment of the present state of Scots law. The idea that Scots lawyers, when faced with a challenging or novel legal problem, might turn first to Justinian’s Digest may give some pleasure to scholars and teachers of Roman law, but it is utterly unrealistic. Contemporaneously, practitioners who are faced with a seemingly novel problem (of whatever stripe) are unlikely to make recourse to the principles of Roman law in any attempt to find a solution; rather, their first port of call will be to altogether more recent precedent.