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Law, Lawyers, and HumanismSelected Essays on the History of Scots Law, Volume 1$
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John W Cairns

Print publication date: 2015

Print ISBN-13: 9780748682096

Published to Edinburgh Scholarship Online: January 2018

DOI: 10.3366/edinburgh/9780748682096.001.0001

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Attitudes to Codification and the Scottish Science of Legislation, 1600–1830

Attitudes to Codification and the Scottish Science of Legislation, 1600–1830

(p.144) 7 Attitudes to Codification and the Scottish Science of Legislation, 1600–1830*
Law, Lawyers, and Humanism

John W Cairns

Edinburgh University Press

This chapter traces the developments in Scots law from 1600 to 1830. The mindset of Scottish lawyers changed significantly over the course of the eighteenth century. In 1700, Scots law was best understood as representative of the usus modernus Pandectarum; there had developed in the seventeenth century, out of the older view of the ius proprium and the ius commune a Roman-Scots law, in which the ius civile was progressively integrated with Scottish material, all justified and rationalised by the ius naturale and the ius gentium. By 1800, however, the view that ‘the Civil Law was our Common Law’ seemed quite outdated. While well into the eighteenth century the term ‘common law’ had meant the Romano-Canonical ius commune, now it was used, rather in the fashion of England, in opposition to statute law: the lex non scripta as distinct from the lex scripta.

Keywords:   Scots law, English law, James VI, legal history, ius commune, ius civile, ius gentium, ius naturale

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