Two nations divided by a common law

Michael Sheridan, writing for The Scotsman, travelled to southern United States to learn more about what started the civil war. Picture: Getty

Michael Sheridan, writing for The Scotsman, travelled to southern United States to learn more about what started the civil war. Picture: Getty

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MICHAEL Sheridan visits Charlotte, South Carolina.

I decided to visit the southern USA to try to identify the factors which transformed the constitutional debate here 150 years ago into a bloody civil war.

However, before making any progress with that inquiry, my attention was drawn down a different road. Less visible than current constitutional convulsions, an ongoing and long-standing jurisdictional war rages quietly around the globe.

The Pythonesque inquiry as to what the Romans did for us is famous for its many answers. These include the creation of a principle-based body of Civil Law much of which, like the roads, survives to this day.

That tradition was received into medieval Europe and by colonisation around the world. However England, standing apart from the rest of Europe, had minimal involvement but, instead, instigated her own system of Common Law rules. This was duly exported around the globe as the Empire was formed. Thus was born the international conflict between the principle-based Romano Germanic or civilian legal systems of continental Europe, South America and parts of Africa and the rules-based Common Law systems of England, Australia, India and North America. The civilian system infiltrated by French colonisation which established civilian beachheads in Quebec and Louisiana. The Dutch and English systems arm-wrestled for pre-eminence in South Africa.

Scotland, prior to Union in 1707, had little exchange with England. Instead, links were formed with France in the Auld Alliance and intellectual exchange developed with Holland, France and Germany.

Scots law emerged therefore as a thoroughly civilian system, in family with the Romano Germanic evolution of continental law. The Scottish law degree, at least until recently, included the study of Roman law. Students had to undertake some of the degree examination in Latin. That I understand is no longer the case which may be a very bad thing in the grand scheme of things which now unfolds. At the same time, centuries of sharing with England a law-making parliament and a final court of judicial appeal has exposed the nonetheless separate and independent Scottish jurisdiction to substantial Common Law influence. Now the evolution of the European Union asks all sorts of questions as to whether the civilian or the Common Law system shall prevail. Scotland, with its history in both camps, is particularly well placed to address these questions.

Nevertheless, the peoples of the countries whose lives are governed by these systems seem blissfully unaware of the worldwide jurisdisdictional conflict. Does it actually make any difference to these people which system dominates their immediate jurisdiction? Surely murder is forbidden and goodwill among men is encouraged in all jusrisdictions? That question brings me back to my present haven here in Charlotte, South Carolina, and a conversation I had with David, a local attorney who specialises in acquisitions and mergers.

While, as lawyers we had much more in common than we had in distinction, it was clear the Roman concept of delivery cut little ice with David in the US with its Common Law tradition. While Scots lawyers are often heard to muse that traditionibus non nudis pactis dominium transferuntur (by delivery rather than mere agreement is ownership transferred) David found my explanation of the concept to be anathema to the progress of business.

If the owner of a football team, for example, borrowed money against the proceeds of the ensuing three years season ticket sales, David would probably have regarded the transaction as par for the course. He would have been very puzzled if the security had come to be set aside by the courts for want of effective delivery. However, when such a security was set aside recently by the court in Scotland, that outcome brought significant joy and sorrow to many people in Scotland.

My next port of call is New Orleans, Louisiana, deep behind Common Law lines where the website of the local Bar Association boasts “a proudly Civilian jurisdiction… and certainly better than the horde of the 49 Common Law states which are shackled by the musty old English tradition”. I may be gone for some time.

• Michael Sheridan is Secretary of the Scottish Law Agents Society www.scottishlawagents.org

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