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A Mixed Legal System in Transition

A Mixed Legal System in Transition: T. B. Smith and the Progress of Scots Law

Elspeth Reid
David L Carey Miller
Copyright Date: 2005
Pages: 340
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  • Book Info
    A Mixed Legal System in Transition
    Book Description:

    This collection of essays considers the work of Professor Sir Thomas Smith QC (1915–1988) and, through that work, the development of Scots law as a mixed legal system.

    eISBN: 978-0-7486-7921-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-vii)
    Elspeth Reid and David L Carey Miller
  4. List of Contributors
    (pp. viii-viii)
  5. List of Abbreviations
    (pp. ix-ix)
  6. 1 While One Hundred Remain: T B Smith and the Progress of Scots Law
    (pp. 1-29)
    Kenneth G C Reid

    T B Smith was a remarkable man who achieved remarkable things. But he was also, at least by the tranquil standards of the legal academy, a controversial figure capable of arousing strong passions.¹ His admirers were won over by the breadth of his learning, by the forcefulness and, sometimes, the novelty of his arguments, by his strong personality, and above all by his vision of a private law of Scotland in which the Civil Law tradition would once again be given its proper place. His detractors questioned both his scholarship and his vision. At best his views were backward-looking or...

  7. 2 The Rational and the National: Thomas Broun Smith
    (pp. 30-43)
    George L Gretton

    A quiz:

    (1) Who advocated the unification of English and Scottish contract law?

    (2) Who described himself as “zealous for unification of laws”?

    (3) Who wrote that “in the field of commercial law, unless there be good reason to the contrary, it is desirable that the law of Scotland and England should be the same”?

    The answers? “T B Smith”, “T B Smith” and “T B Smith”.²

    Smith’s views were complex and often elusive. I cannot resolve all difficulties, and perhaps all difficulties cannot be resolved. Perhaps his thought was not wholly consistent over time. Perhaps it was not wholly...

  8. 3 Two Toms and an Ideology for Scots Law: T B Smith and Lord Cooper of Culross
    (pp. 44-72)
    Hector L MacQueen

    On 28 November 1948 Randall Philip QC wrote in his journal:¹

    I have been approached by T B Smith, a young member of the Bar, who asks my support for a certain appointment. He gave me a list of his qualifications. Modestly, he has never mentioned these. But, just to show the quality of a younger member of the Bar, here they are:- Boulton Exhibitioner in Law at Christ Church; BA, with “First” in Jurisprudence; Eldon Scholar at Oxford University (£200 p a: open only to those with “Firsts” or a Chancellor’s Prize); First Class in English Bar examination; Lord...

  9. 4 T B Smith as a Legal Historian
    (pp. 73-99)
    John Blackie

    The textbook recommended to students studying Scots law in the Victorian era, and in the twentieth century at any time up to 1927, was a work that, in the form into which it had evolved, was partly historical. The “time-honoured custom”,¹ was to use updated editions of Erskine’s Principles.² By the 1890s an express aim justifying the use of the book had come to be that the student “learn the history of his science and art”.³ By contrast, a student from the 1930s to the 1960s would have been introduced to the law of Scotland by way of Gloag and...

  10. 5 Borrowing from English Equity and Minority Shareholders’ Actions
    (pp. 100-119)
    Niall R Whitty

    In Anderson v Hogg¹ a shareholder in a company presented a petition under section 459 of the Companies Act 1985 for relief against unfair prejudice. The petitioner sought to have the respondent ordained to repay to the company sums which the company had paid to the respondent by way of allegedly unauthorised salary bonus, redundancy payments and the like. In the Outer House Lord Reed found that the various payments did not result in unfair prejudice to the petitioning shareholder and refused the petition. Remarking, however, that a section 459 petition was not the only remedy for a minority shareholder,...

  11. 6 “Calculated to our Meridian”? The Ius Commune, Lex Mercatoria and Scots Commercial Law in the Seventeenth and Eighteenth Centuries
    (pp. 120-137)
    A D M Forte

    Although Sir Thomas Broun Smith’s copious writings on the law of Scotland and its development did occasionally, though not always consistently,¹ touch on commercial law, he left nothing in the way of a detailed critique of that subject’s development in the early modern period. The seventeenth century was largely ignored by Smith; and so far as the eighteenth century was concerned he contented himself with a few squibs: Roman-Dutch writers were highly influential; French literature made little impact in Scotland, though a few ordinances of the later seventeenth century “inspired” mercantile jurisprudence; the Union of 1707 checked Continental influences;² and...

  12. 7 Glory with Gloag or the Stake with Stair? T B Smith and the Scots Law of Contract
    (pp. 138-172)
    Hector L MacQueen

    In 1962 T B Smith had in mind the production of “a larger treatise to deal with the general principles of Contract”, in which he would “deal … in detail with the problems of both semantics and principle which vex any lawyer seeking to expound the basic structure of contract in a reasonably comprehensible fashion”.¹ He had already written an overview of the subject as part of his 1955 contribution to the Laws of the British Commonwealth series, and this was largely reproduced in a treatment of some 123 pages in the Short Commentary in 1962. Smith had also produced...

  13. 8 T B Smith’s Property
    (pp. 173-198)
    David L Carey Miller

    Professor Sir Thomas Smith’s property work was not successful in terms of any direct measure of achievement. Eight Scottish Law Commission memoranda published in 1976¹ as a comprehensive project directed to reform of the law relating to corporeal moveables had limited immediate influence.² This failure, if such it was,³ has little significance in the context of Smith’s influence over the development of Scots law in the second half of the twentieth century. The present chapter will consider his property work; but, in Smith’s case, scholarship and wider contribution cannot be readily separated. Smith’s natural league is that of those rare...

  14. 9 T B Smith: a Pioneer of Modern Medical Jurisprudence
    (pp. 199-217)
    David W Meyers

    T B Smith was a lawyer of many talents and interests. One such interest was medical jurisprudence. This is reflected in his little-noticed, but pioneering 1959 article, “Law, professional ethics and the human body”.¹ In this short, but illuminating article he highlighted current issues of concern in medical jurisprudence and unabashedly offered his views on their proper resolution. On most, subsequent developments have proved him prescient. On one or two others, his views have not been sustained. Still others are as yet in the process of evolving, but largely, it appears, as Smith espoused that they should. Perhaps above all...

  15. 10 Civilian and English Influences on Scots Criminal Law
    (pp. 218-238)
    Christopher Gane

    This paper examines the sources of Scottish criminal law, both past and present. It is a topic which is appropriate for two reasons in a collection of essays dedicated to Sir Thomas Smith’s contribution to the law of Scotland. The first reason is that Sir Thomas took a greater interest in the criminal law than most other senior academics of his generation. In addition to essays on the doctrine of diminished responsibility¹ and the law of provocation,² he devoted three chapters of the Short Commentary to the subject. In 1967, reflecting on the dearth of literature in this area, Sir...

  16. 11 Strange Gods in the Twenty-First Century: the Doctrine of Aemulatio Vicini
    (pp. 239-254)
    Elspeth Reid

    This memorable and much-quoted metaphor opened Smith’s inaugural lecture as Professor of Civil Law at the University of Edinburgh in 1958.¹ That lecture set out the manifesto for Smith’s comparative law. Because Scots law had failed to use the “spadework” of the Institutional Writers to codify the Civil Law in the early nineteenth century, its principles were fated never to become “fully related and systematised”.² Instead of remaining true to the inherited Civil Law tradition, we had “often gone a-whoring after ‘common law’ solutions to the detriment of our law.”³ Scots private law had become unduly susceptible to the “pressures...

  17. 12 Travelling the High Road with T B Smith: Nationalism and Internationalism in the Defence of the Civilian Tradition
    (pp. 255-271)
    Vernon Valentine Palmer

    More than forty years ago a Scottish visitor of international renown rose to address a colloquium in Louisiana hosted by the Louisiana State Law Institute. His subject was entitled “The preservation of the Civilian tradition in mixed jurisdictions”. The panache in his remarks was just as striking as the full dress kilt and black tie he later wore at the evening reception. The colloquium did not mark Sir Thomas Smith’s first visit to Louisiana, nor the first time he had addressed this theme. The preservation of the Civilian tradition in Scotland had been his personal theme for many years, and...

  18. 13 The Ties that Bind: T B Smith as a Comparative Lawyer
    (pp. 272-292)
    Daniel Visser

    One day in late 1979, while I was studying at the University of Leyden, my supervisor, Professor Robert Feenstra, invited me to lunch. When I arrived at “De Doelen” on the Rapenburg at the appointed hour, I found to my delight that the lunch was in honour of T B Smith. I shall always treasure that unexpected meeting with a kind man who was, as I quickly realised, still very knowledgeable about South Africa, even though the excesses of the apartheid state had long since brought any meaningful exchange to a halt. He remarked that we were both at that...

  19. 14 The Recognition Principle – Tracing Sir Thomas’ Vision to the Present European Law
    (pp. 293-301)
    Erich Schanze

    Autonomy and recognition of Scots law in a world largely dominated by the English Common Law was the central theme of Sir Thomas Broun Smith’s academic mission.¹ In spring 1967 a young German assistant listening to a guest lecture of Professor Smith at the University of Frankfurt was hardly prepared for this vision. It was the time of talking about “convergence of systems”, of many projects on uniform law, and of the conviction that a “functional” approach to comparative law would quickly lead to the “harmonisation” of all key legal issues.²

    Why should a small national legal system – Scots...

  20. 15 Professor Sir Thomas Smith QC – a Bibliography
    (pp. 302-311)


    “Land Registration in Scotland” 1948 SLT (News) 67


    “Book review of Macdonald’s Criminal Law of Scotland” (1949) 12 MLR 123 “Epithalamium: a Scottish trilogy” (1949) 12 MLR 162 “Severality of administration of justice in the United Kingdom” (1949) 61 JR 151²

    “Notes on recent Scottish decisions” (1949) 12 MLR 511

    “Fire services”, in J F Gordon Thomson (ed), Supplement to Encyclopaedia of the Laws of Scotland vols 1–9 (1949), 658

    “Forestry” in Supplement to Encyclopaedia of the Laws of Scotland, 689


    “Letter to the Editor” 1950 SLT (News) 6

    “The House of Lords as Supreme Court...

  21. Table of Cases
    (pp. 312-321)
  22. Index
    (pp. 322-332)