In Britain at least, changes in the law are expected to be made by the enactment of statutes or the decision of cases by senior judges. Lawyers express opinions about the law but do not expect their opinions to form part of the law. It was not always so. This book explores the relationship between the opinions expressed by lawyers and the development of the law of Scotland in the century preceding the parliamentary union with England in 1707, when it was decided that the private law of Scotland was sufficiently distinctive and coherent to be worthy of preservation. Credit for this surprising decision, which has resulted in the survival of two separate legal systems in Britain, has often been given to the first Viscount Stair, whose Institutions of the Law of Scotland had appeared in a revised edition in 1693. The present book places Stair's treatise in historical context and asks whether it could have been his intention in writing to express the type of authoritative opinions that could have been used to consolidate the emerging law, and whether he could have been motivated in writing by a desire to clarify the relationship between the laws of Scotland and England. In doing so the book provides a fresh account of the literature and practice of Scots law in its formative period and at the same time sheds light on the background to the 1707 union. It will be of interest to legal historians and Scots lawyers, but it should also be accessible to lay readers who wish to know more about the law and legal history of Scotland

This volume provides the first in-depth intellectual history of the contractual thought of Viscount Stair, a pivotal figure in the shaping of Scots Law. It traces the key influences from theology, philosophy, and natural law that through Stair contributed to a distinct approach to legal thought in Scotland.

This book offers a fundamental reassessment of the origins of a central court in Scotland. It examines the early judicial role of Parliament, the development of the Session in the fifteenth century as a judicial sitting of the King s Council, and its reconstitution as the College of Justice in 1532. Drawing on new archival research into jurisdictional change, litigation and dispute settlement, the book breaks with established interpretations and argues for the overriding significance of the foundation of the College of Justice as a supreme central court administering civil justice. This signalled a fundamental transformation in the medieval legal order of Scotland, reflecting a European pattern in which new courts of justice developed out of the jurisdiction of royal councils.

Lawyers in Scotland in the later sixteenth century took a disproportionate interest in the law governing maritime commerce. Some essays in this collection consider their handling of the subject in treatises they wrote. Other essays, however, show that disputes relating to maritime trade were handled in a different way in the courts of the towns at which ships arrived. Further essays examine the relationship between these contrasting perspectives. Although the essays focus on the law governing maritime commerce in Scotland, they also contribute to a wider debate about the nature of maritime law in early-modern Europe.

The essays presented in The Ian Willock Collection on Law and Justice in the Twenty-First Century by those who knew Ian Willock, as well as those who have been inspired by his concerns, represent the wide compass of Ian’s interests. These range from a concern with the development of legal regulation to the relationship between social change and the justice system, as well as his particular interest in the accessibility of the justice system. This tribute provides a microcosm of the changes and shifts which occurred in legal education and the legal profession in the years between 1964 and the current century. The profound impact of Ian Willock’s life work is evident through the wide-ranging essays in this collection.

This book explores the rise of a Scottish common law from the twelfth century on despite the absence until around 1500 of a secular legal profession. Key stimuli were the activity of church courts and canon lawyers in Scotland, coupled with the example provided by neighbouring England’s common law. The laity’s legal consciousness arose from exposure to law by way of constant participation in legal processes in court and daily transactions. This experience enabled some to become judges, pleaders in court and transactional lawyers and lay the foundations for an emergent professional group by the end of the medieval period.