Roman–Dutch Law, Scottish Civil Procedure and Fusing of the Common and Civil Jurisprudence

The range and breadth of Roman law have extended and been assimilated into the distant corners of Europe based on the concept of Jus Commune. Law of Scotland is one of the countries which has adopted Roman legal principles in its substantive law. The Scots law is a non-codified Civil law in which legal principles have been drawn from both the civilian (i.e. Roman law) and common law traditions. It also owes its evolution to the jurists who developed the causes of action in the civil courts of the country.

These Roman law foundations still persist in Scottish law and is practiced in contract, delict, and property law. The actio iniuriarum has been a source of the cause of action for civil injury that is still in use today in the courts. In property law there are the actio familiae erciscundae and the actio communi dividundi, the former lying for the division of property within an inheritance, and the latter being available to co-owners other than heirs. The issue is the scope of procedural remedies in which the courts distinguish between various causes of action and how they have developed a remedy from basic principles of Roman -Dutch tradition.

This paper examines the scope of substantive law and civil procedure in Scots law that rests on the classical Roman theory and the process of fused/mixed jurisdiction in which the Civil law has been adopted and by procedural rules has become sustainable.