Alexander on the Historical Origins of the Scottish Right to Roam and Democratic Culture

Gregory S. Alexander, Cornell Law School, has published The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam as Cornell Legal Studies Research Paper No. 16-16. Here is the abstract.

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to “everyone” a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging “right to roam” comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This Article is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life. One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. This Article argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

Download the article from SSRN at the link.

Neil Walker On UK Constitutional Practice and the Future of Scotland

Neil Walker, University of Edinburgh School of Law, is publishing The Territorial Constitution and the Future of Scotland in The Scottish Independence Referendum: Constitutional and Political Implciations (A. McHarg, T. Mullen, A. Page, and N. Walker, eds.; OUP, 2016). Here is the abstract.

This paper considers the ways in which constitutional thought and practice continue to shape the distinctiveness of Scotland as a political community in the post-independence referendum period. The emphasis is not just on the immediate future, nor on some ideal ‘deep future’, but on the foreseeable future. What are the candidate models and plausible pathways by which the future development of the territorial constitution might be pursued? What benefits and drawbacks are associated with different approaches and what are their prospects of success? In particular, what are the limits of accommodation of Scottish self-government within the framework of the UK state, and how, if at all, might such an accommodation be maintained in the face of continuing strong support for independence? The headline notion of the 'territorial constitution' provides a useful angle of approach to these questions. The territorial constitution could signify one of three things. It might refer to the overall constitutional order as conventionally understood. Here we use the ‘territorial’ part as mere shorthand to refer to the (geographically located) state as a constitutional whole. Yet, however familiar, this usage is of limited utility in unpacking Scottish constitutional distinctiveness. In its tendency to reduce constitutional authority to the sovereign state alone, this 'Westphalian' version of the territorial constitution obstructs an adequate appreciation of Scotland's situation and prospects in a more complex regulatory environment. Instead, the article introduces two applications of the idea of a territorial constitution that are less familiar but more promising for our purposes. One usage, which has recently gained ground in mainstream constitutional debate, treats the ‘territorial’ adjective as referring to just one discrete dimension and focus of treatment within a broader constitutional order, albeit an order that may still be understood in terms of the paramount authority of the sovereign state. That dimension involves the vertical distribution of authority within the polity. This is the usage with which we are mainly concerned in the present paper. The other possible application to which we refer departs more radically from our conventional constitutional frame of reference. More than a matter of adjectival stress, instead it treats ‘territorial constitution' as a compound noun -- a distinct and separate species within the constitutional genus, and so as only one of a variety of 'constitutional' orders (including functionally defined orders such as the EU, or the 'security constitution' of the UN) applicable to any particular population. From these broader perspectives, many of the positions on the Scottish constitutional future under review in these turbulent post-referendum times, from the traditional unitary state with limited devolution of powers, through the new brand of asymmetrical Unionism and a broader framework of multilateral federalism to the option of sovereign independence, look like positions along a spectrum rather than categorically distinct choices.

Download the essay from SSRN at the link.

John Erskine's An Institute of the Law of Scotland

Kenneth Reid, University of Edinburgh School of Law, has published John Erskine and the Institute of the Law of Scotland as Old Studies In Scots Law (Edinburgh Legal Trust, 2014). Here is the abstract.

Published posthumously in 1773, John Erskine’s An Institute of the Law of Scotland is the most important work on Scots law of the eighteenth century. Even today, it is one of the small canon of ‘institutional’ writings which continues to be consulted and to be cited in court. This paper begins by examining what is known of Erskine’s career, first as an advocate and then, from 1737 to 1765, as Professor of Scots Law at Edinburgh University. Detailed consideration is given to the writing of the Institute, to its publication, to the later editions, and to the fluctuations in the work’s reputation. Finally, the text of the Institute itself is examined, with particular attention being given to its structure, the range and depth of treatment, the relationship to the earlier Principles of the Law of Scotland (intended as a student text), and to the sources used.

Download the article from SSRN at the link.

This Sporting Life

Gregory S. Alexander, Cornell Law School, is publishing The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam in the University of Illinois Law Review. Here is the abstract.

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to “everyone” a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging “right to roam” comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This paper is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life: One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. The paper argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

Download the article from SSRN at the link.

The Law of Obligations In Scotland

Hector Lewis MacQueen, University of Edinburgh School of Law, has published The Law of Obligations in Scots Law in The Law of Obligations in Europe: A New Wave of Codifications 213 (Reiner Schulze and Fryderyk Zoll eds; Munich, 2013). Here is the abstract.

A historical study of the structure of the law of obligations in Scots law, with especial reference to the law of contract.

Download the essay from SSRN at the link.