The origins and work of the Scottish Law Commission, and the problem of the codiﬁ cation of Scottish private law

: The subject covered in the paper is the origins, structure and workings of the Scottish Law Commission created, along with its English counterpart, under the Law Commissions Act of 1965. The author of the article outlines the course of conceptual and legislative work to constitute the new commission, the extent of its relationship with and dependence on public authorities, as well as the key diﬀ erences between the legal position of the two commissions, symbolically highlighted by the English commission’s gaining a stronger mandate under the 2009 Law Commission Act. The ﬁ nal part of the paper is devoted to an attempt to assess the achievements of the Commission to date, the reasons for the failure of the premise of the grand codiﬁ cation endeavour, and the successes that the Commission claim in terms of reforming speciﬁ c institutions and branches of law.


Introduction
Referring to Scotland's legal legacy as a hybrid legal system, Andreas Rahmatian points out that attempts to codify and capture this hybridity in the form of a code may provide a model for future codifi cation of civil law at the European level.At the same time he observes that this optimistic attitude is a characteristic of the older generation of lawyers, who saw in the harmonisation of legal systems one of the mechanisms for fostering European integration and create further ties between states, which was intended to serve as a barrier against the outbreak of another war on the continent.However, younger generations of lawyers, less attached to the very idea of codifi cation understood as the creation of a civil code from scratch, see the need for continuous reform and modernisation of the legal system. 1 Over the centuries attempts to reach the goal in question were made with various, mostly ad hoc measures.Although the subject of the present study is the origins and activities of the Scottish Law Commission, established in the second half of the twentieth century, the diffi culty of the work undertaken by the Commission is emphasised the most by the history of earlier reform eff orts.

Attempts to reform and codify Scottish law
The evident need to codify Scottish law is not a result of just recent refl ection on its state. 2The fi rst ad hoc attempts at reform are traditionally dated to 1425, when, during the reign of King James I, a decision was made, at the third parliament convened during the reign of that ruler, to appoint a commission of six learned men who, representing each of the three estates, were to undertake a study of the existing law and then formulate a proposal for its amendment. 3cottish law created on the basis of the royal decrees, regulating individual issues in a way that was far from systemic in nature, was characterised not only by numerous loopholes, but also by a growing level of uncertainty.The consequence of this was a systematic study of Scottish law in the form of legal treatises published from the late seventeenth century until the fi rst half of the nineteenth century, some of which acquired the status of institutional works. 4The outstanding nature of the arguments found in these institutional works was appreciated by the Scottish judiciary, which granted them the status of a subsidiary source of law, and in view of the gaps in the Scottish legal system in the period preceding their publication, they became a vehicle for a unique, intellectual infi ltration of the Scottish 1 A. Rahmatian, "Codifi cation of private law in Scotland: Observations by a civil lawyer", Edinburgh Law Review 8, 2004, no. 1, p. 34.  2 A draft code was presented by University of Edinburgh professor Eric Clive in 2002, and the work on this project, carried out in the 1990s, is presented in the author's article, E. Clive, "Current codifi cation projects in Scotland", Edinburgh Law Review 4, 2000, no. 3, pp.341-350.  "Sex wise men and discreete, of ilk ane of the three Estaites, quhilk knawis the Lawes best, sail be chosen […] that sail see and examine the Buikes of Law […] and mend the Lawes that neids Mendement."Excerpt from a law reform bill from the reign of James I (c.54/1426), text of the bill available at: https://www.rps.ac.uk/trans/1426/13 (accessed: 21.05.2023). 4The very names of the individual works, which draw on the legal treatises of Gaius and Justinian, indicate a similar role to be played by them -for they were to be textbooks as well as an attempt to develop a comprehensive system of law based on the complex and heterogeneous structure of the sources of law.legal order by the sophisticated reception on Roman law in the form of the output of the Dutch jurisprudence. 5 An interesting remark in the context of the "codifying" nature of institutional works has been made by David Walker.Referring to the views of Lord Cooper, he notes that if it had not been for the legal consequences of the 1707 union, the natural outcome of the development of Scottish law in the nineteenth century would have been a great process of codifi cation based on the works of institutional writers. 6Walker points out that the same process took place in France on the basis on works by Domat and Pothier, and in Germany on the basis of the writings of Pandectist school representatives. 7he eighteenth and nineteenth centuries, a period immediately following the union, brought further attempts at codifi cation, but they were systemically rejected by the Scots.On the one hand, in view of the functioning of Scottish law as an uncodifi ed system of law with a strong element of Romanticism, there was doubt as to whether the consequence of the codifi cation eff ort might be at least a partial loss of the previous achievements of the legal system.On the other hand, doubts were also expressed about the direction of the codifi cation eff orts.This is because there were fears that the process would not lead to the creation -as in the case of the fruits of the codifi cation processes taking place on the continent at the timeof a civil code, but only further anglicisation of Scottish law. 8e origins, establishment and structure of the Law Commission The immediate predecessors of the two Legal Commissions were informal ad hoc committees calling for law reforms, and operating on a part-time basis in the 1950s and the fi rst half of the 1960s in England and Scotland.It should be noted, however, that the activities of these bodies did not meet the increasingly urgent need to modernise the legal system of the two states in the union. 9he Scottish Law Commission was established by the 1965 Law Commissions Act,10 but the very origin of the introduction of the statutory solution is interesting in that it demonstrates that the law reform process was designed primarily for the purpose of modernising English law.
The man commonly regarded as the father of the Commission is Gerald Gardiner11 -one of the members of the committees discussing the need for law reform, Lord Chancellor and co-editor of the 1964 book Law Reform Now, in which the authors outlined the plan, role and tasks for law reform, and advocated the creation of a special commission for the purpose, which indeed happened as a result of this inspiration the following year.The initial suggestion was that a body should be set up to focus exclusively on the reform of English law,12 with its remit being extended with time to include the problems relating to Scottish law, or that a separate body should be established to deal with the problem of Scotland, on the basis of the experiences of the commission to be created for English law.
Restricting the reform activities only to the territory of England and Wales was strongly opposed by the Scottish legal community.A signifi cant role in persuading the House of Lords to accept solutions that would include work on Scot-tish law was played by two individuals in particular -William Ross 13 and Professor Thomas Broun Smith. 14Ross, then Secretary of State for Scotland, felt that it was necessary to simultaneously establish two separate bodies the task of which would be to prepare parallel drafts of reforms for both legal orders, as well as to cooperate as far as possible to not only harmonise enactments, but also to respect and protect the distinctiveness of the two legal systems.In the case of T.B. Smith, who was sometimes referred to as a "legal nationalist," the reason behind his position was the fear of simultaneous reform of English law and lack of reform of Scottish law, which would contribute even further to the evident and continuing anglicisation of Scottish law.The role of the Scottish body in this context was to not only take care of the modernisation of Scottish law, but also to uphold its native character. 15he fact that a compromise was reached and the decision to establish the two bodies made the legislative process generally smooth.At the same time, already in the course of the work and discussion, there became apparent a diff erence in the understanding of the idea of law reform, a diff erence that was quite signifi cant and determined the eff ectiveness of the Commission's any possible further work.While no one opposed the idea itself, at the same time there were signals that the problem of not taking earlier action did not lie in a lack of a full-time law reform body, but stemmed from the nature of the English legislative process, which was already diagnosed at this stage of reform eff orts as a "bottleneck" that hindered actions focused on amending the legal system.The role of the Commission was seen in this context as cleaning the old law of "cobwebs," rather than truly modernising the legal system, a task that was apparently solely in the hands of political bodies. 16he legislative eff orts resulted in the establishment of two separate bodies in 1965 -the Scottish Law Commission, responsible for reforming Scottish law, and the Law Commission, responsible for modernising English and Welsh law. 17 13 William Ross (1911-1988) was a Labour politician and the longest serving Secretary of State for Scotland (in 1964-1970 and then again from 1974 until 1976).More: W. Hughes, "Ross, William, Baron Ross of Marnock (1911-1988)", [entry in:] Oxford Dictionary of National Biographies.
14 Thomas Broun Smith (1915-1988), professor of civil law at the University of Edinburgh and one of the most eminent Scottish lawyers of the twentieth century.Smith was not only one of the members of the fi rst Scottish Law Commission, but from 1954 to 1970 was also a member of its predecessor, the Scottish Law Reform Committee.For more on Smith's life and work, see Lord Hunter, "Thomas Broun Smith 1915-1988", Proceedings of the British Academy 82, 1993, pp. 455-473. 15 On T.B. Smith's role in the development of the concept of the Scottish Law Commission: S.W. Stark, "The longer you can look back, the further you can look forward", pp.66-68.
16 D.M. Walker, "The Scottish Law Commission under review", p. 119. 17The diff erence in the naming of the two entities was accurately commented on by the fi rst chairman of the Scottish body, who put this diff erence down to a peculiarly English insensitivity, for although the two entities were equal, and had the same powers and tasks within the two legal orders, at the same time such a distinction in naming could create an unwarranted impression of The Commissions were to be composed of no more than fi ve commissioners18 appointed for fi ve-year terms; the entire membership or individual members could be re-appointed. 19The appointees were eminent representatives of the judiciary, barristers, solicitors, and law professors. 20The fi rst chairman of the Scottish Commission was one of the judges of the Court of Session, 21 Lord Kilbrandon, who was relieved of his judicial duties for the duration of his term in offi ce as commissioner. 22The other four Commissioners were the University of Edinburgh professor Thomas Broun Smith, University of Glasgow professor J.M. Holiday, G.D. Fairbairn, and A.G. Brand, 23 who became the Commission's secretary.
When it came to administrative services 24 and offi ce conditions, they changed as the Commission's offi ces moved to new locations. 25At the beginning the Commission also used the library of the University of Edinburgh' Law School, but when its offi ces were moved to permanent premises, a separate law library was established for its needs, managed by a full-time curator who organises, catalogues and seeks out new items to be added to one of the richest collections of Scottish legal literature.
An important issue relating to the eff ectiveness of the Commission's work was the question of the full-time nature of the Commissioners' appointments.Unlike the English Commissioners, who devoted themselves entirely to working for the Commission, in the case of Scotland the only full-time Commissioner was the chair, who was a Court of Session judge delegated to work in the Commission and preside over this body.In this context the Commission undoubtedly faced diffi culthe superior or leading role of the English Commission.Lord Kilbrandon, "The Scottish Law Commission", Georgia Law Review 2, 1968, p. 194.ties, in terms of both its organisation, and the time and energy the Commissioners could devote to the reform of the legal system. 26The problem of tenure was mentioned by the fi rst chair of the Commission, Lord Kilbrandon, who with his usual glibness said that in Scotland the inequality in the way Commissioners were employed was understandable, for it was an admission, as it were, that English law needed more reform than Scottish law. 27e scope of the activity of the Commission The tasks of the two Commissions and the manner of their operation were regulated in Article 3 of the Commissions Act in an essentially uniform manner, taking into account the diff erence between the lawmaking bodies with which each Commission cooperated.
The fi rst and most important task of the Commissioners is to carry out a constant and ongoing review of the entire legal system.A consequence of this review, as we can read further in the provision, should be a systematic reform of the law, including its codifi cation.In the last part of the article in question the legislator indicates the purpose of these activities: elimination of legal anomalies, repeal of obsolete and unnecessary enactments, synthesis of the existing enactments, and general simplifi cation and modernisation of the legal system. 28nalysing the tasks set for the Commission, we should acknowledge that they were undoubtedly defi ned both broadly and vaguely, which, on the one hand, could give the body in question broad powers to review the legal system and submit proposals of changes to it, and, on the other, for the same reason, could give rise to doubts as to whether in its activities the Commission might not go beyond its mandate.Part of the Commission's tasks of consolidating and repealing obsolete enactments, that is tasks that could collectively be described as improving the law, did not arouse any special controversy, which could not be said about the activities aimed at reforming the functioning enactments. 29he sphere that turned out to be the most controversial, both because of the nature of the Scottish legal system and the understanding of the semantic scope of the concept, was the codifi cation of law.It has been pointed out that G. Gardiner himself, when formulating the premises of law reform based on the substantive work of the Commission, put little emphasis on the codifi cation of the law in the strict sense, focusing more on the problem of consolidation of the law, the norms of which were scattered considerably between the existing legislation and normative judicial decisions. 30The premises of codifi cation and, to some extent, uniformisation of the law were in any case included in the fi rst programmes of both reforms,31 which, for reasons indicated further in this paper, failed, the consequence being that the ambitious problems were broken down into smaller tasks and the idea of "codifi cation for codifi cation's sake" was abandoned.
The statutory regulation of the Commission's mandate further indicates the forms of its activities and mechanisms for cooperation with state institutions.The Commission is the addressee of proposals for law amendments, which can be referred to it by an undefi ned group of entities 32 -thus the solution does not limit the possibility of demands being formulated only by a specifi c group of public entities, since suggestions for necessary statutory changes can also be submitted by non-governmental organisations, local governments and even individuals.In addition, the Commission prepares reform programmes in which it identifi es legal issues or institutions that will become the subject of the Commission's work and analysis in the near future. 33Recommendations in this respect may also be addressed to the Commission by the Scottish or British governments -they may also take the form of a request to draft a relevant bill 34 or even a programme of laws that will consolidate enactments within the entire branch of law. 35The Commission also has obligations relating to information and research -under the Act it has to provide assistance and information to the relevant public bodies that request its assistance in the course of their legislative work with regard to recommending solutions to be adopted, 36 as well as to obtain information about enactments functioning in other countries, enactments that can help solve problems on which the Commission will work. 37he reform programmes formulated by the Commissions should be submitted to the relevant ministers, and after approval by the government, they should be put forward for further processing within the framework of parliamentary proceedings. 38At the end of each year the Commissions prepare a report on their work, which is submitted to the government, and then -together with the government's position -laid before the parliament. 39he forms of activity outlined above, combined with the Commissions' independence from government bodies on the one hand, and the non-binding nature of the Commissions' recommendations on the other, as well as the need to obtain adequate political support for the solutions suggested by them, caused a certain impasse in the early twentieth century, which was the highest-ever decrease in the percentage of solutions proposed by the Commissions and implemented by the Scottish Parliament and the British Parliament, respectively.
The solution to the problem took diff erent forms in the case the two bodies.A custom informally developed in Scotland whereby a proposal from the Scottish Law Commission should receive a response from the relevant minister within three months.In the case of the English Commission, a 2009 amendment to the Law Commissions Act 40 introduced Article 3A into the analysed law.Under this new provision, the Lord Chancellor must prepare an annual report indicating which of the Commission's proposals have been implemented and to what extent they have been implemented; if they have not been implemented, information must be provided about the plans to work on the Commission's proposal or, in the event of a refusal to proceed with a Commission proposal, the reasons for the decision. 41

Assessment of the work of the Scottish Law Commission
Evaluating the work of the Law Commission is a complex task, especially given that it is not easy to precisely defi ne the ultimate purpose of this work.The foundation for such work was the Commissions' joint work on a code of contractual obligations in its fi rst few years.Later attempts at codifi cation, narrower in scope, which in the case of Scotland concerned the law of evidence and, in the case of England, property lease, did not end with the adoption of the solutions proposed either.More on attempts of the two Commissions to cooperate can be found in a paper by one of the Scottish commissioners: C.G.B. Nicholson, "Codifi cation of Scots law: A way ahead, or a blind alley", Statue Law Review 8, 1987, no. 3, p. 174.Another, similarly diffi cult task was the harmonisation of legal solutions, which stemmed indirectly from the division of work between the two entities, differently oriented geographically and legally.The failure of the attempts to develop uniform solutions, stemming from diff erent legal traditions43 and diff erent priorities, consequently prompted the two Commissions to focus on reforms of their own legal systems.Although the Scottish Commission did not cease to follow both the directions and outcomes of the work of its English counterpart, it approached them in the context of experience that could be used rather than ready-to-implement solutions.This does not mean, however, that the Commissions have had no successes when it comes to harmonisation -Peter North 44 points out that the sphere in which harmonisation was quite successful was the sale of goods, which had previously been regulated by one of the great acts of parliament codifying English commercial law, 45 and which eventually came to be regulated by a 1979 act of parliament that was applied almost uniformly in both parts of Great Britain. 46y far the greatest achievements can be attributed to the Commission with regard to the reform of individual enactments, in terms of both eliminating archaic and systemically contradictory enactments, and introducing unifi ed regulations.
The Commission has worked on the basis of programmes outlining the scope of problems to be addressed in the next period.To date the Commission has adopted ten programmes, and its actions have inspired signifi cant reforms in various areas of Scottish law.
The fi rst decade of the Commission's activity was marked by two programmes: the First Programme, from 1965, 47 which dealt with the unsuccessful projects of harmonisation of Scottish and English laws of contracts and of unifi cation of enactments in the fi eld of law of evidence, as well as the Second Programme, from 1968, 48 which covered a wider range of issues in both civil and criminal law. 49 cursory analysis of the activities of the Law Commission in the 1970s and 1980s solely with regard to the programmes may lead to the erroneous conclusion that the Commission's reform activity declined during this period, for over these two decades only one work programme was presented, that is the Third Programme of 1973, 50 which, in addition, covered only one issue. 51At the same time during this period a number of laws were adopted following proposals formulated by the Commission and submitted for further legislative work. 52he last decade of the twentieth century brought two programmes -the Fourth in 1990 53 and the Fifth in 1997. 54Both covered issues of reform of property law, unjustifi ed enrichment, issues specifi c to civil procedure (the problems of security, powers of attorney, and guardianship), and the latter also addressed the adaptation of contract regulations to the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980. 55he 2000s and 2010s were marked by a defi nite acceleration in the Commission's work in quantitative terms -the period accounts for half of the Commission's work programmes.At the same time more and more specifi c problems were noticeably addressed, and on the other hand work was moved to or continued in subsequent programmes, if it was not completed.A characteristic feature of the Sixth Programme of 2000 56 is that, in addition to private law issues (such as leasehold reform), it addresses a number of problems from the sphere of public law, 57 which is a result of the process of devolution of some powers of the British Parliament to the Edinburgh-based Scottish Parliament, reinstated in 1999. 58he other two programmes from the 2000s 59 were also private-public in nature.The long-standing continuation of work on trusts and succession was complemented by work in the fi eld of criminal law, which concerned the reform of enactments dealing with defence of necessity, homicide and criminal liability of persons acting as bodies of legal persons.An interesting problem that became the subject of the Commission's work under the Eighth Programme was the adaptation of Scottish law of contract to the solutions stemming from the Draft Common Frame of Reference. 60he Commission's most recent programmes -from 2015 61 and 2018 62 -are a continuation of previous work, with new issues of interest to the Commission being, in the fi eld of civil law, regulation of prescription, cohabitation and personal injury, while in the fi eld of criminal law -defamation and homicide.

Conclusions
Walter Scott once noted that Scottish law resembled an ancient castle: "partly entire, partly ruinous, partly dilapidated, patched and altered during the succession of ages, by a thousand additions and circumstance." 63In this context, with regard to the work of the Scottish Law Commission and the initial premises for the codifi cation of the law, it should be acknowledged that the original goal of be-coming the "architect" of the law were too diffi cult, too ambitious, and perhaps even impossible to achieve in the political and legal environment of the day.At the same time, we cannot deny the Commission's role as an outstanding engineer who, through a series of improvements, has brought about a signifi cant reconstruction of those parts of the Scottish legal system that required -like the castle mentioned above -the most urgent or far-reaching repairs, and as a source of inspiration for law reforms also outside Scotland. 64anslated by Anna Kijak Bibliography 42 38 Article 3.2 of the Act. 39Article 3.3 of the Act. 40Law Commissions Act of 2009, c. 14 -text of the act available at: https://www.legislation.gov.uk/ukpga/2009/14/enacted (accessed: 21.05.2023). 41Article 3a.1 of the Law Commissions Act of 1965 (Introduced by the Law Commissions Act of 2009 indicated above).