Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland

Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland

Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland

Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland

Synopsis

Returning to a theme featured in some of the earlier volumes in the Edinburgh Studies in Law series, this volume offers an in-depth study of 'mixed jurisdictions' - legal systems which combine elements of the Anglo-American Common Law and the European Civil Law traditions. This new collection of essays compares key areas of private law in Scotland and Louisiana. In thirteen chapters, written by distinguished scholars on both sides of the Atlantic, it explores not only legal rules but also the reasons for the rules, discussing legal history, social and cultural factors, and the law in practice, in order to account for patterns of similarity and difference. Contributions are drawn from the Law Schools of Tulane University, Louisiana State University, Loyola University New Orleans, the American University Washington DC, and the Universities of Aberdeen, Strathclyde and Edinburgh.

Excerpt

Scotland and Louisiana are mixed jurisdictions. They are built upon the dual foundations of Common Law and Civil Law and belong to a legal family that includes South Africa, Quebec, Puerto Rico, Sri Lanka, Israel and others around the world. The idea of classifying legal systems in this way can be traced back more than 100 years, but it was only in the second half of the twentieth century that the Scottish scholar Sir Thomas Broun Smith urged the mixed jurisdictions to engage in cross-comparative studies as a means of overcoming the perils of isolation and steady assimilation by the Common Law. Smith’s work is generally credited with a revitalisation of the Scottish system, but it also raised the consciousness of colleagues in many countries, including in Louisiana. Smith, who held a chair at the University of Aberdeen and subsequently at Edinburgh, occupied a visiting post at Tulane Law School in 1957-1958 and Louisiana State University in 1972, and was made an Honorary Member of Council of the Louisiana State Law Institute in 1960. In his inaugural lecture at the University of Edinburgh Smith commended to his Scots audience the example of the “flourishing legal literature and journals” of Louisiana. And respect was reciprocated. When, in turn, Professor Leonard Oppenheim of Tulane Law School was invited to give a course of lectures at the University of Edinburgh in 1960, he began by looking forward to a “succession of visits” between the two jurisdictions. This would allow scholars to “broaden their views by mutual contacts and expand

1 For a detailed treatment of mixed jurisdictions more generally see V V Palmer (ed), Mixed Juris dictions Worldwide: The Third Legal Family (2001).

2 For further detail on the scholarly exchanges stimulated by Smith see K Reid, “The idea of mixed legal systems” (2003) 78 Tulane LR 5 at 11-16. For a full assessment of Smith’s contribution by fifteen authors, see E C Reid and D L Carey Miller (eds), A Mixed Legal System in Transition: TB Smith and the Progress of Scots Law (2005).

3 “Strange Gods: The crisis of Scots law as a Civilian system” 1959 JR 119 at 140, reprinted in Studies Critical and Comparative (1962) 72 at 88.

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