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A Mixed Legal System in TransitionT. B. Smith and the Progress of Scots Law$
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Elspeth Reid and David Carey Miller

Print publication date: 2005

Print ISBN-13: 9780748623358

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748623358.001.0001

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Two Toms and an Ideology for Scots Law: T B Smith and Lord Cooper of Culross

Two Toms and an Ideology for Scots Law: T B Smith and Lord Cooper of Culross

(p.44) 3 Two Toms and an Ideology for Scots Law: T B Smith and Lord Cooper of Culross
A Mixed Legal System in Transition

Hector L MacQueen

Edinburgh University Press

This chapter focuses on the ‘Cooper–Smith ideology’, which can be summarised broadly as follows. Modern Scots law was a ‘mixed’ legal system, in which a basically Roman law or Civilian structure of private law had been overlaid since the 1707 Union by influence from the English Common Law. The principal agents of that influence had been the common legislature in Westminster, UK government departments in Whitehall, and the common appeal court in the House of Lords. The influence from England had rarely if ever been for the good. The salvation of Scots law lay in drawing upon its own historical roots and the experience of other ‘mixed’ systems, such as those of South Africa and Louisiana, where too a basically Roman Civilian system was threatened by infiltration from other legal traditions.

Keywords:   Scots law, private law, mixed legal system, Cooper–Smith ideology

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