Swain on Intoxication: Being "Without the Power To Drink Or Contract" @AuckLawSchool

Warren Swain, University of Auckland Faculty of Law, has published 'Without the Power to Drink or Contract' at 24 Edinburgh Law Review 26 (2020). Here is the abstract.

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism.

Download the article from SSRN at the link.

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.

Imagining Criminal Responsibility In Nineteenth Century Scottish Law

Chloe Kennedy, University of Edinburgh School of Law, is published 'Ungovernable Feelings and Passions': Common Sense Philosophy and Mental State Defences in Nineteenth Century Scotland in volume 20 of the the Edinburgh Law Review (2016). Here is the abstract.

During the nineteenth century, changing conceptions of mental disorder had profound implications for the way that criminal responsibility was conceived. As medical writers and practitioners increasingly drew attention to the complexities of insanity, the grounds on which mentally abnormal offenders could be excused began to seem unduly restrictive. By way of a contribution to our understanding of this development, this article examines how the growing disparity unfolded in Scotland. I argue that the requirements of the insanity defence, as set out within judicial directions, reflect core facets of Scottish Common Sense philosophical thought, including Thomas Reid’s view of human agency and understanding of ‘common sense’. Building on this contention, I suggest that Scottish Common Sense philosophy played an important role in the development of Scottish mental state defences more broadly, and can provide an original interpretation of the way the doctrines of provocation and diminished responsibility changed during this era.

Download the article from SSRN at the link.

The Origins and History of Land Registration In Scotland

Kenneth Reid, University of Edinburgh School of Law, is publishing From Registration of Deeds to Registration of Title: A History of Land Registration in Scotland in Land Registration (George L. Gretton and Kenneth G. C. Reid, eds.; Edinburgh: Avizandum Publishing Ltd. 2016). Here is the abstract.

The origins of land registration in Scotland lie in a series of statutes of the sixteenth century. A later Act of 1617, still in force today, set up a national system of deeds registration. There was a choice between registration in a local register or in a central register in Edinburgh (the General Register of Sasines); and registration was constitutive of the real rights which the deeds sought to create. From the beginning the registers were open to the public. These early developments were a source of national pride. Towards the end of the seventeenth century, for example, Sir George Mackenzie commented that ‘Scotland hath above all other Nations, by a serious and long experience, obviated most happily all frauds, by their publick Registers’. By the end of the nineteenth century, however, the pioneer country seemed in danger of being left behind. Beginning in South Australia in 1858, the ‘Torrens’ system of registration of title spread throughout the Australian colonies and then to many other parts of the British Empire. And in England, too, which had no national land register until the nineteenth century, the first hesitant steps were being taken for the introduction of registration of title. In the light of these developments, a Royal Commission was appointed in Scotland in 1906 to consider a switch from registration of deeds to registration of title but its members were unable to reach agreement. It was left to a second government committee, chaired by Lord Reid and reporting in 1963, to recommend the introduction of registration of title. The clinching argument was an expected reduction in transaction costs, and hence the prospect of cheaper conveyancing. Legislation to implement the Reid Committee’s recommendations was eventually passed in 1979. This paper explores the evolution of land registration in Scotland, analyses the key legal developments, and offers an evaluation of the move from registration of deeds to registration of title.

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.

Snapshot: Scottish and English Law at James VI & I's Accession

Hector Lewis MacQueen, University of Edinburgh School of Law, has published Scots and English Law c.1603: Uniting or Dividing Kingdoms? as Edinburgh School of Law Research Paper No. 2014/15.

Here is the abstract. A brief discussion of how Scots and English lawyers saw their respective laws and legal systems at the time of the Union of the Crowns, when the prospect of a union of laws was also put before them.

Download the paper from SSRN at the link.