Author: John Cairns

Macdonald on Crimes is a title on Scots law that had a long life, as indeed did its author (1826-1908). It did not achieve lasting approbation, though it was clearly found useful enough by bench and bar. One of his contemporaries said that he was a man about whom little was known (see ODNB); but his great grandson, Norman Macdonald, a retired WS, has produced a readable and full biography of his distinguished ancestor.

Macdonald was born into the minor landed classes who dominated the professional classes of Edinburgh in the early nineteeth century. His father was a WS, descended from two distinguished lines of Highland gentry, his mother daugther of a baronet. His father was later to marry (as a third wife) the Hume heiress of Ninewells, making an interesting intellectual link.

The biography covers Macdonald's varied and interesting life, including politics; the bar; the Catholic Apostolic Church; motoring. The impression is of an engaging and active man, devoted to his family, interested in military and indeed practical, technological and mechanical pursuits. He wrote autobiography, childrens stories and much else.

The nicely written new biography is to be welcomed: Norman Macdonald, Sir John Macdonald, Lord Kingsburgh (ISBN 978-0-9566149-0-2), Lumphanan Press, £7.99

The Blog is interested to see the publication by Dale McFadzean and Gareth Ryan of the volume Legal Method by DUP in the series Law Essentials. The work is full of all kinds of useful assistance in finding legal materials and the correct way to cite them. It should be of great help to undergraduates working on dissertations.

What this Blog finds curious, even worrying, is the potential misrepresentation of Scots law that could result from uncritical reading of this otherwise admirable work. On p. 3, it analyses legal systems into Civil law ones, common law ones and hybrid. So far so good. Civil law ones are described as having been influenced by Roman law and are largely identified with codified systems; common law ones  "have developed quite independently of the influence of Roman law." Instead of being codifed, they are characterised by use of precedent. Common law systems have been "greatly influenced by English law". Scots law is hybrid and has developed "in such a way that it does not conform exclusively to either civil or common law". Instead it is a mixed system, which is described as one "in which one can discern elements of civil or Roman law but also the influence of common law and precedent". Fair enough; the crudity is necessary in such a work. The authors add: "This is certainly true of Scotland where, for example, the branch of criminal law is almost wholly derived from common law whereas other branches, such as company law, rely almost entirely on Acts of Parliament which codify them." The naive reader might now think that Scots criminal law is of English origin and that Scots Company law is civilian.

In the discussion of primary sources, Insitutional Writings are described as "codifications of Scots law" (p. 5). This might suggest they are statutes. The role of Institutional Writings is more subtle and nuanced. No mention is made of Roman or civil law which turns up with some frequency in Scottish litigation. In neither the chapter on using a Scottish Law Library nor in the chapters on other sources is there mention of Roman law. Though recognised as a "primary" source, Institutional writings are curiously discussed with secondary sources; nor is their use particularly explained.

This is a very simple, elementary work; one does not wish to turn an elephant gun on it. But the very fact it is so useful, means that students will use it. That it is so misleading about aspects of Scots law is therefore unfortunate. In a future edition, the authors would be advised to reflect on these points.

The Gerard Noodt Instituut of Nijmegen, as no 52 of its series, Rechtshistorichse Reeks van het Gerard Noodt Instituut, has just published M. L Hewett, Ulric Huber (1636-1694), De Ratione Juris Docendi & Discendi Diatribe per Modum Dialogi (2010) ISBN 978-90-71478-79-6, at 40 euros. A doctoral dissertation of the University of Amsterdam, it contains the Latin text and translation of Huber's Dialogus, very important for understanding the history of legal education, with introduction and chapters discussing the work in context. Dr Hewett is well known to legal historians for her translations of the old Dutch authorities. This is an important addition to the literature. It can be ordered through a bookshop or by email to t.vandendobbelsteen@jur.ru.nl