<<
>>

§ 1.2. Commercial law ordering in Scotland taking into account influence of the English right

In Scotland the initiatives, concerning improvements of own right and its ordering took place. In 1575, 1633, 1649, 1681 and 1695 some commissions for revision of the current legislation, elimination of contradictions and the organisation of a material in appropriate way have been founded.

[86] way of ordering of the right of Scotland only began, but value of the published legal works is conclusive. Sir Thomas Krejg has written "Feudal law" (Jus feudale) nearby 1606 g. Sir George Makkenzi has published "Laws and customs of Scotland on criminal questions" (The Laws and Customs of Scotland, in Matters Criminal) in 1678, "Institutions of the right of Scotland" (Institutions of the Law of Scotland) - the small book where principles are deduced one of another and in which all is described by concepts of civil law [87] - go back to 1684 It is especially necessary to underline "Institutions of the right of Scotland, deduced of sources and compared with civil, initial and the feudal law and with customs of the next nations" (Institutions of the Law of Scotland Deduced from Its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations) James Dalrimpla, viscount Stejra. In spite of the fact that the given work has been published 1681, on it refer as to an enjoying authority source in the Scottish vessels and in ours веке.88

The question of necessity of ordering was widely discussed in legal circles in the end of XIX - the XX-th century beginning. The reasons of increase of interest to the given question were, first, occurrence of the various statutes effectively systematising separate institutes of the right, and secondly, idea development about necessity of creation so-called «the Imperial code» - the systematised source of law which would be applied in all territory British империи.89 Following statutes were an example successful ordering of separate legal institutions in the end of XIX century: the Law on amendments to a commercial law 1856 года90 (Mercantile Law Amendment Act 1856), the Law on securities 1882 года91 (Bills of Exchange Act 1882), the Law on partnership 1890 года92 (Partnership Act 1890) and the Law on sale of the goods 1893 года93 (Sale of Goods Act 1893).

Ordering had the advantages and lacks. While ordering has made the right more accessible, it is inevitable [88 [89] [90] [91] [92] [93]

Has entailed necessity of working out of novels. Earlier named laws specified as a successful example of ordering, generally were only the arch of already existing legislation. Nevertheless, process of ordering demands working out of certain structure of documents as the document structure influences right interpretation.

Various researchers declared, that drawing up

The systematised sources of law was an uneasy problem. [94] besides fastening of detailed rules, laws fix principles for settlement of the legal relations which directly have been not settled

Normative acts. Moreover, at creation of laws to apply which it was planned both in England, and in Scotland, it was necessary to consider features of legal systems.

In certain cases it was probably simple to replace the Scottish legal concepts English, having fixed it in section about application in Scotland. Such method was applied in the Law on partnership of 1890. The given decision, however, was not such simple as could differ not only terms, but also basic principles. [95] such basic principles have certain distinctions in sphere of regulation of contracts, partnership and purchase and sale. Some aspects of the English right of contracts have no analogues in the right of Scotland. Institutes of the Scottish right, which were submitted to strong influence of the Roman Law (for example, purchase and sale), were based on principles which strongly differed from the English. [96] summing up, it is necessary to tell, that though statutes were developed for application both in England, and in

Scotland, the distinction problem in interpretation of such statutes has not been eliminated.

After acceptance of the separate statutes systematising separate legal relations in England and Scotland, universal ordering of the English-Scottish right by the end of XIX century was the precondition to ordering on all empire. It is possible to consider as such precondition success of the English-Indian codes also. [97] ordering of the Indian right was more simple problem as to enter in pravoprimenitelnuju practice the codes imposed strong suverenom to much weaker colonial government, much easier. Hence, ordering of the English-Scottish right was much more problematic.

At empire level in 1986 the Congress at an empire Chamber of commerce had been accepted the memorandum which fixed ordering intention on all empire. The basic idea consisted that ordering should begin with fastening of the English right processed for incorporation in the Scottish right. Moreover, the developed consolidated sources of law should be directed on check with revision possibility to all colonies and dependencies. After entering of all necessary changes the consolidated sources of law should are submitted repeatedly to consideration in empire. [98]

The basic advantages and ordering lacks have been considered by jurists of Scotland in XIX century, such as At. G rem, U.Hatton, D.M.Kerli, R.A.Dzh. MakMilan, G.B.Merdok, J. D.Wilson. The basic advantage was that ordering would help to overcome dual regulation, blanks and legal regulation contradictions. Other positive moment would be availability of the right, especially for citizens without the juridical education which are not informed on an abundance of statutes and the delegated legislative power, also, it would be easier to students to study the law. Besides, the state could rely on base rules, instead of dependence on the decision separate личностей.QQ

Lacks of the basic concerned complexity of the process of ordering. Codes for which creation huge efforts on processing of existing legislative base were required, it would be extremely inconvenient to create the consolidated collections of statutes for which drawing up it was required to harmonise and unify existing statutes, and. Nevertheless, U.Grem noticed, that Napoleon's codes have been generated from much bigger, than in England, Ireland and Scotland, quantities of isolated judgements which, at times, contradicted each other. Hence, it was not an insuperable problem. The consolidated collections of statutes and codes were difficult for constituting including because of necessity as much as possible to limit divergence problems in their interpretation. The legislation regulating some branches of law, it was more difficult to systematise in comparison with the legislation regulating other branches of law. The problem was more realizable if the branch of law is independent enough. [99 [100] the situation with branches of law between which there are difficult interrelations much more difficult was, in particular, if regulation is based on different principles. Even sometimes it was not simple to lawyers to understand implicit distinctions in the national law. The lord the Supreme chairman of Sessional court of Scotland has told: «The more I study the English law, the more I am convinced, that we do not understand nine of ten quoted precedents and that in attempts of application of this right we risk to spoil the right, incorrectly interpreting their right» [101]. It, in turn, could lead to that judges were more inclined to change the law of procedure, than the substantive law.

Other lacks of ordering laid in political area. It is important to notice, that the success of the consolidated sources of law depended on their effective application, it is more than from results of discussion of the maintenance. For England the English-Indian codes were much more an easy problem, than any achievements English-Scottish. Moreover, ordering would demand transition pravotvorcheskoj function from parliament to lawyers who will be engaged in ordering that would weaken imperious powers of parliament. In comparison with the statutes, the consolidated sources of law give in to changes as their working out demands a considerable quantity of resources and preparation more difficult. On the one hand, the consolidated collections of statutes and codes are easier in use and stabler source of law, than precedents. On the other hand, - to less giving in necessary changes and less actual. [102]

It is obvious, that plurality of legal systems probably if it is based on consolidation, ordering, uniformity and unification. The Great Britain has applied some elements of rapprochement in national legal systems. Occurrence of the Scottish and English commissions on matters of law in 1965 is an example the actions directed on achievement of such rapprochement. Elements of rapprochement of legal systems are easier for identifying in commercial law branch, in comparison with other branches of law. Even in this branch unique elements of the British legal history have led to the original kind of ordering differing from experience of continental Europe. [103] J. D.Wilson has defined the reason of this fact which and now could be actual as concerns the essence of each legal system. It has specified that the commercial law of the Great Britain, despite its consolidation, as a rule is focused on the transaction while the continental law is more focused on persons. [104] some features of a commercial law of Scotland are caused by historical influence of the Roman Law.

The most part of the Scottish and English commercial law has appeared by acceptance of the laws operating in all territory of the Great Britain. Such statutes, nevertheless, frequently contained the additional norms adapting certain legal requirements to realities of Scotland. Such approach assumes high level of harmonisation, thus obviously negatively influences the general uniformity. [105]

Acceptance of the legislation operating in all territory of the Great Britain, in the end of XIX century has led to certain economic and social changes. A.Roger has reflected, as the Scottish businessmen of that time demanded the modern, standardised commercial law to facilitate trade with England and with all empire. A.Roger also noticed, that statutes for all territory of the Great Britain at all were not attempt of Englishmen to concentrate in themselves the Scottish right. The Scottish businessmen have been interested in these statutes for an establishment of trading mutual relations and appeal of trade with Scotland. English experience shows, that right ordering is quite real problem under condition of necessity for subjects of law and to necessary level of support of the power. The viable combination of laws which not necessarily had influence on uncommercial relations became result. Distinctions are present both at approaches to the right, and at separate institutes of the right. The English legal tradition is based on a general law, instead of ordering while the Scottish right with own traditions has apprehended the judicial precedent doctrine. [106]

The urgency of possibility and necessity of ordering for England has increased in the end XIX - the XX-th century beginning. English pravotvorcheskie authorities realised value of ordering, recognising its restrictions and complexity, especially political. Finally, political problems have appeared more difficult legal. It was supposed to spend ordering of the legal systems existing within the limits of British Empire, including the Scottish legal system. However, the English-Scottish ordering differed that not only the English right has influenced the Scottish right, but also the Scottish right has influenced the English. Proceeding from told earlier, it is possible to draw a conclusion on higher level of independence of Scotland and possibility of its influence on England. Distinctions between the Scottish and English right were not such big though and certainly took place. Ordering could bring to naught the remained distinctions, but trade prospered across all Great Britain without full legal uniformity. [107]

Coming back to a current state of affairs, it is interesting enough to find out, whether probably to learn a lesson from attempt of the English-Scottish ordering. Ordering and the systems based on tradition shows the historical analysis, that, should not be

Mutually exclusive. Harmonisation of the corporate right in Europe, including England and Scotland, is quite real problem. The English right if to be guided by historical experience, should not remain former under the influence of the all-European harmonisation. The Scottish right could strengthen communications with other legal systems which have been partially lost in due course.

<< | >>
A source: Afanaseva Taisija Aleksandrovna. LEGAL REGULATION OF RELATIONS OF THE TRADING TURN In Scotland. The dissertation on competition of degree of the master of laws. Moscow, 2017. 2017

More on topic § 1.2. Commercial law ordering in Scotland taking into account influence of the English right:

  1. 2.1. Working out of a design procedure of tolerances at the direct control taking into account an operating time of vehicles and influence of a variation of the mean error of measurement.
  2. 2.8 Definition of the capacity spent for movement of particles of a material taking into account mutual influence of counter streams
  3. § 3. Influence of ideas kodifikatsionnogo movements on ordering of federal criminal law
  4. 2.2. Working out of a design procedure of tolerances at the indirect control taking into account influence of time of maintenance of vehicles, a variation of the mean error of measurement and completeness of the spent control.
  5. the Technique of definition of efficiency of punishment under criminal law in the form of restriction of freedom taking into account the business factors accompanying application of electronic means of tracking for condemned
  6. 2.3. Qualification of crimes in sphere of budgetary relations taking into account their subjective party
  7. 2.4. Qualification of crimes in sphere of budgetary relations taking into account their subject
  8. 2.1. Qualification of crimes in sphere of budgetary relations taking into account their object
  9. 3.1. Qualification of crimes in sphere of budgetary relations taking into account institute of the neoterminated crime
  10. § 2. The Conclusion of employment agreement: updating of norms taking into account the legal doctrine
  11. 3.1. DYNAMICS of CLINICAL INDICATORS At PATIENTS Taking into account POLYMORPHISM of the GENE FNO
  12. 2.2. Qualification of crimes in sphere of budgetary relations taking into account their objective party
  13. § 3. Influence of ordering of the legislation on technology of structurization kodifitsirovannyh certificates
  14. § 3. Legal regulation at level of the subject of a federative state taking into account regional features
  15. §3. Problems of differentiation of responsibility of participants of dorozh the movement taking into account features of fulfilment of road and transport crimes
  16. CHAPTER 3. Influence of international law on national in the field of the international commercial arbitration.
  17. 3.2. DYNAMICS of INDICATORS of the LIPIDE SPECTRUM At PATIENTS Taking into account POLYMORPHISM of the GENE FNO