欧洲私法——苏格兰的混合司法的发展.docVIP

SCOTLAND AS A MIXED JURISDICTION AND THE DEVELOPMENT OF EUROPEAN PRIVATE LAW: Is There Something to Learn from Evolutionary Theory? Jan Smits Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. 1. Introduction The aim of this contribution is to consider whether there are any lessons to be learnt from the development of mixed jurisdictions, such as Scots law, for the emergence of a uniform private law for Europe. Or, to put it otherwise: Can mixed jurisdictions be a model for the future developments within the European Union? This question is, of course, not a new one. It has received more and more interest over the last few years. The very idea of Scots law as a model, also outside the European context, is even much older. Hector MacQueen in his Utrecht Ius Commune lecture, traces the idea back to 1924, when the famous French comparatist Lévy Ullmann noted that ‘Scots law gives us a picture of what will be some day the law of the civilised nations, namely a combination between the Anglo-Saxon and the Continental system’. In the recent debate on the possibilities of attaining a uniform European private law, several authors have pointed to the experience Scots law can offer in this respect. In drafting sets of principles of European private law, Scots law has already played an important role. This contribution does not focus on the many different reasons why it could be useful to look at Scots law as a model for the development of private law in Europe. I want to focus on the idea of Scots law as being able to make a selection for the best rules of different legal traditions. After all, the often held belief is not that Scots law is of i