Scots Law and the Rule of Law

1. Scope and evidence

The core claims of this card are Established: Stair's dates, offices, exile and restoration; the 1681/1693 publication of the Institutions; its status as the first systematic treatise of Scots private law; and the "mixed jurisdiction" characterisation are all supported by authoritative reference works (Oxford DNB, the Stair Society) and peer-reviewed legal-historical scholarship. Certain matters are Shared/Traditional or Disputed and flagged in the closing Caveats — chiefly the precise extent of Stair's originality versus his synthesis of existing sources, the exact weighting of his debts to Grotius, Pufendorf and scholastic theology, and some details of his political conduct during a period when almost every public figure made compromises.

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2. A turbulent political life: Covenanter, Cromwellian judge, exile, and the man who returned with William

James Dalrymple's life spanned the most violent century in Scotland's constitutional history, and — in keeping with this site's "accuracy over patriotism" standard — it must be told with its compromises intact. He was born in Ayrshire in May 1619 into a family of minor gentry with deep Reformation roots; his father died when he was an infant and he was raised by his mother in a firmly Reformed (Calvinist) household. He studied at the University of Glasgow, graduating MA in 1637, and — like the Covenanting generation of Samuel Rutherford treated in Card #3 — was shaped by the religious politics of the National Covenant. He served in a Covenanting regiment during the Bishops' Wars before returning to Glasgow as a regent (professor) in arts from 1641 to 1647.

Admitted advocate in 1648, Dalrymple's rise came through learning and administrative skill rather than courtroom oratory. Here the complexities begin: he accepted judicial office in 1657 under the Cromwellian regime that governed Scotland during the Interregnum, on the recommendation of General Monck — service that broadened his acquaintance with English law. At the Restoration he was knighted and reappointed to the Court of Session in 1661, becoming Lord President in 1671. Yet he repeatedly balked at oaths that offended his Presbyterian conscience: in 1662 he declined to declare the Covenants unlawful (and was allowed to subscribe under reservation), and in 1681 he resigned the presidency rather than swear the Test, an oath asserting royal supremacy over the Church.

This resignation coincided with the publication of the Institutions and with the intensifying persecution of Presbyterians under Charles II and his brother James, Duke of York (later James VII & II) — the period Scottish historiography calls the "Killing Time" (broadly c. 1680–1688), the same context of persecution touched on in Card #3. Stair withdrew to the Netherlands, settling at Leiden. In his absence he was indicted for treason (1685) by the Lord Advocate, Sir George Mackenzie, on charges connected to the Rye House Plot and the Earl of Argyll's rising; the evidence was thin and partly extracted under torture, and the proceedings were quietly dropped in 1687. In exile Stair remained productive, publishing his Decisions of the Lords of Session (the first printed Scottish law reports) and a work of natural philosophy, Physiologia Nova Experimentalis (1685).

His fortunes turned with the Glorious Revolution. Stair returned to Scotland in the entourage of William of Orange in 1688 and was restored as Lord President in 1689; in 1690 he was raised to the peerage as Viscount Stair. Controversy dogged him to the end — he published a self-defensive Apology in 1690, and his son, the Master of Stair, was the minister chiefly responsible for the Massacre of Glencoe (1692), a scandal that shadowed the family's last years. Stair died in Edinburgh in November 1695 and was buried in St Giles', beside the Parliament House where he had spent his working life. A useful corrective to hagiography: the celebrated jurist was also a career office-holder who served four successive and often opposed regimes, and whose survival depended on a capacity for calculated compromise.

3. The Institutions of the Law of Scotland: a systematic achievement

Stair's monument is The Institutions of the Law of Scotland, deduced from its originals, and collated with the civil, canon and feudal laws, and with the customs of neighbouring nations. The full title is itself a manifesto: it announces a law "deduced from its originals" (i.e. from first principles) and "collated" — compared and reconciled — with the civil (Roman), canon and feudal laws and with the customs of other nations. The work circulated in manuscript for some years before its first printed edition appeared in 1681. A substantially revised second edition — Stair's last personal revision — followed in 1693.

Scholars regard the 1693 second edition as the authoritative text; it is the version reproduced in David M. Walker's standard tercentenary edition (Edinburgh & Glasgow University Presses and Yale University Press, 1981), which adds a historical and critical introduction and cross-references Stair's citations to modern authorities. (Modern citation of Stair — e.g. "Inst. 1.1.15" — follows this edition's four-book numbering.) The 1693 edition is the more complete because Stair split the original first part in two, separating personal from real rights and producing the four-book structure now standard. (The 1681 first edition was arranged in three parts, tracking Stair's three-fold scheme of the constitution, conveyance and cognition of rights.)

The achievement was structural and intellectual. Before Stair, Scots legal literature was fragmentary — practicks, statutes, styles and ad hoc treatises. Stair produced the first comprehensive, systematic statement of Scottish private law as a rational whole, organised around principles rather than around an accumulation of cases or statutes. Alexander Broadie's judgement is representative: the Institutions "set the practice of law in Scotland on a sound philosophical basis, almost certainly helped to ensure that Scots law would remain in force as a distinct entity after the union of 1707." As the Open University's OpenLearn "Scottish legal heroes" course puts it, it is "generally regarded as the greatest of the institutional writings."

Stair's organising insight — set out in his opening title — was to build his system not on the Roman scheme of personae, res, actiones (persons, things, actions) but on rights themselves. As he put it, the Roman categories are "only the extrinsick Object and matter, about which Law and Right are versant; but the proper Object is the Right it self." He then arranged the whole of private law around the life-cycle of a right in a three-fold scheme: rights are considered, in his own words, "First, in their Constitution and Nature. Secondly, in their Conveyance, or Translation from one person to another, whether it be among the living, or from the dead. Thirdly, in their Cognition, which comprehends the Tryal, Decision and Execution of every Right, by the legal remeids." In the four-book form of 1693 this becomes: Book I, personal rights and obligations (from liberty through the obediential and conventional obligations); Book II, real rights (property, possession, servitudes, and the feudal law of land); Book III, the conveyance and transmission of rights, including succession and executry; and Book IV, cognition — the jurisdiction of the Court of Session, procedure and execution/diligence.

4. Natural law foundations

What made the Institutions philosophically distinctive was Stair's insistence that law is a rational discipline derived from equity and the law of nature, not merely a congestion of texts. In a famous passage he complains that the civil-law commentators offer "a congestion of the contexts of the law, which exceedingly nauseates delicate ingines [minds]," and praises those who would have law "formed as a Rational Discipline." For Stair, "Equity or the Law of Nature standeth wholly in these Practical Principles which are created in, and with the Soul of Man"; "Law is Reason it self, as it is versant about the Rights of men."

This natural-law framework was inseparable from Stair's Reformed/Calvinist theology. He grounded the binding force of obligations — pre-eminently the obligation to keep faith and perform promises — in a divinely ordered moral order accessible to reason. Modern scholarship stresses the complex intellectual mixture at work: alongside the rational natural law, Stair's account of justice and of the "obediential" obligations of restitution and recompense drew on Aristotelian philosophy and Thomist (scholastic) moral theology (see D. Reid, "Thomas Aquinas and Viscount Stair," Journal of Legal History, 2008), even as his Calvinism gave his system its distinctive shape.

Stair's chief acknowledged continental model was Hugo Grotius, whose De jure belli ac pacis he cites and, as W. M. Gordon's source-study demonstrates, used more heavily than he openly admits ("Stair, Grotius and the Sources of Stair's Institutions," in Roman Law, Scots Law and Legal History). The parallel is often drawn: Stair's Institutions did for Roman-Scots law roughly what Grotius's Inleidinge had done for Roman-Dutch law. Stair's relationship to Samuel Pufendorf is more doubtful — Thomas Richter's study "Did Stair Know Pufendorf?" (Edinburgh Law Review, 2003) questions the extent of any direct debt. Crucially, Stair did not merely copy Grotius: his Calvinist framework led him to depart from Grotius on significant points. The clearest example is the jus quaesitum tertio (the third party's right under a contract): Stair made such rights irrevocable from creation, diverging from the revocable Roman-Dutch/Grotian position — a difference recent scholarship attributes to Stair's Calvinist (as against Grotius's Arminian) natural-law theology.

5. The "mixed jurisdiction" synthesis explained

Scots law is the textbook example of a "mixed" or "hybrid" legal system. The term "mixed jurisdiction" was coined by the influential Scots jurist T. B. Smith in 1962 to describe a system that is "basically a civilian system [that] has been under pressure from the Anglo-American common law and has in part been overlaid by that rival system of jurisprudence" (T. B. Smith, in A. N. Yiannopoulos (ed.), Civil Law in the Modern World, LSU Press, 1965, p. 5). A widely adopted working definition is Robin Evans-Jones's: a mixed system is "a legal system which, to an extensive degree, exhibits characteristics of both the civilian and the English common law traditions" (R. Evans-Jones, "Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law" (1998) 114 Law Quarterly Review 228). Its "mixed" character has two layers, and it is important to keep them distinct.

The historical synthesis Stair systematised. By the seventeenth century Scots law already drew on several sources: (a) the Roman/civilian tradition, received into Scotland — as across much of continental Europe — through the ius commune and the teaching of the continental universities where Scots advocates trained, and deployed in argument where no native rule settled a dispute; (b) natural law, the rational and equitable principles Stair placed at the system's foundation; and (c) indigenous Scottish sources — customary law, the decisions of the Court of Session, Acts of the pre-Union Scottish Parliament, canon law, and above all feudal law, which governed landholding (Stair's treatment of real property rests on the feudal rather than the civil law). Stair's genius was to weld these disparate materials into one coherent, principled system. This civilian-natural-law-customary synthesis is the deep structure that gives Scots law its enduring character.

The later common-law overlay. After the 1707 Union — covered in depth in the History-series, and preserved by Article 19 of the Treaty of Union, which safeguarded Scots private law and the Scottish courts — English influence grew, chiefly because the House of Lords became the final court of appeal in Scottish civil cases and because doctrines of binding precedent (stare decisis) took hold in the nineteenth century. Modern Scots law is therefore "mixed" in the strict comparative sense of combining a civilian substantive core with common-law method and much shared UK statute.

How this differs from English common law. The contrast is structural. English common law grew inductively and case-by-case: the law is found in the accumulated decisions of the courts, reasoned analogically from precedent to precedent. Stair's method was the reverse — deductive and systematic, reasoning from general principles of equity and natural law down to particular rules, in the manner of the continental jurists. This is why Scots law developed the distinctive institution of the "institutional writers": authoritative treatises are a formal source of law in Scotland in a way they never were in England, where (traditionally) only statute and precedent counted. Stair himself did not regard prior decisions as binding precedents in the stare decisis sense at all.

Scots law among the mixed jurisdictions. Comparative lawyers place Scotland at the centre of a "third legal family" of mixed jurisdictions — the framing of Vernon Valentine Palmer's Mixed Jurisdictions Worldwide: The Third Legal Family (Cambridge University Press), whose core studies are South Africa, Scotland, Louisiana, Quebec, Puerto Rico, the Philippines and Israel. Scotland is repeatedly studied alongside Louisiana, South Africa and Quebec because all combine a civilian substantive inheritance with common-law institutions and procedure.

6. Key legal principles and innovations

The law of obligations. Stair's most enduring analytical contribution is his division of obligations into conventional (voluntary) obligations, created by the will of the parties (promise, paction, contract, and the nominate contracts — loan, mandate, custody, sale, hire, society), and obediential (involuntary) obligations, imposed by law regardless of the parties' will (including delict/reparation, and restitution and recompense). This voluntary/involuntary architecture still structures the modern Scots law of obligations.

Contract and the primacy of promise. Stair placed the will and consent of the parties at the centre of contract, favouring party autonomy, and — unusually for his time — treated the unilateral promise as independently binding, grounded in the natural-law duty to keep faith. Stephen Bogle's Contract Before the Enlightenment: The Ideas of James Dalrymple, Viscount Stair (Oxford University Press, 2023) argues Stair reworked Grotius into a distinctively Calvinist, pro-commerce theory, resting private law on "the peace of society, the security of property, and the freedom of commerce."

Unjustified enrichment. Stair's treatment of the obediential obligations of restitution and recompense is the acknowledged foundation of the modern Scots law of unjustified enrichment. Rather than following the Roman scheme (which classified by the source of the obligation), Stair ordered these obligations by their content on a natural-law basis. Modern scholarship — Peter Birks's influential 1980s articles, Robin Evans-Jones's two-volume Unjustified Enrichment, and Niall Whitty's work in the Stair Memorial Encyclopaedia — built the contemporary law on Stair's foundations.

Systematic architecture. The organising achievement itself — treating the whole of private law as a single deductive system built around rights, their transmission and their vindication — was the innovation that later writers followed and that distinguishes the Scots juristic method from the English.

7. Legacy: institutional writers, the Stair Memorial Encyclopaedia, and comparative law

Stair founded a tradition. The "institutional writers" — a small canon of treatises accorded a special, quasi-authoritative status as a formal source of Scots law where statute and case law are silent — take their name and template from his Institutions. The principal successors are Andrew McDouall, Lord Bankton, whose An Institute of the Laws of Scotland in Civil Rights, with Observations upon the Agreement or Diversity between them and the Laws of England (3 vols, 1751–1753) was explicitly modelled "after the general method of the Viscount Stair's Institutions"; John Erskine of Carnock, whose An Institute of the Law of Scotland (1773) and Principles (1754) became the standard student and practitioner texts; and, in the nineteenth century, George Joseph Bell (Commentaries and Principles) and, for criminal law, David Hume (Commentaries). Sir Thomas Smith's much-quoted gauge is that "the authority of an institutional writer is approximately equal to that of a decision by a Division of the Inner House of the Court of Session."

Stair's name is honoured in the two central institutions of modern Scots legal scholarship. The Stair Society, founded on 17 September 1934 "to encourage the study and to advance the knowledge of the history of Scots Law," is Scotland's counterpart to the Selden Society, has around 335 members, and publishes an annual scholarly volume (its current Literary Director is Professor Mark Godfrey of the University of Glasgow). And the Laws of Scotland: Stair Memorial Encyclopaedia — a 25-volume, continuously updated narrative statement of the whole of Scots law, conceived during the 1981 tercentenary celebrations and published by LexisNexis with the Law Society of Scotland — is, in the Law Society of Scotland's own words, "the only comprehensive and authoritative narrative treatment of the law of Scotland and is the cornerstone of the Scots lawyer's library," and is itself cited with approval before the courts.

Finally, in comparative law, Stair's synthesis is why Scotland is a standard object of study in the flourishing field of mixed-jurisdiction scholarship, its private law repeatedly compared with that of Louisiana, South Africa and Quebec.

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