Cover image of John Ford's bookReview

J. D. Ford. Law and Opinion in Scotland during the Seventeenth Century. Oxford. Hart Publishing. 2007. xii + 650 (including Index). Hardback. £85. ISBN 978 1 84113 789 6.

By Mark Godfrey, from The Journal of Legal History 29.3 (2008), 369–72

In recent decades Scottish legal history has enjoyed a Renaissance. The fruits of the intensification of research and scholarship in the field have led to an immense transformation in understanding of Scottish legal development. The publication of J. D. Ford’s book, however, marks a highly significant further stage in that transformation. It can be regarded without qualification as a remarkable work of the most fundamental importance. It not only transforms understanding of the subject but also of the nature of the analysis which can profitably be brought to bear on the pursuit of that understanding. It is a work of extraordinary range and originality, exhibiting a degree of scholarship which is simply breathtaking in scope and depth, and based on an immensely detailed and considered treatment of manuscript and printed historical sources which transcends any previous work on the subject.
Dr Ford tackles the most fundamental of themes for the legal history of early modern Scotland, indeed for any early modern European state, namely the evolving understanding of of both law and legal authority. As Klaus Luig puts it, this was the age of a 'process of formation of national law' made particularly evident in the writing of 'institutes of national law' in the seventeenth and eighteenth centuries . Scottish lawyers, jurists and judges were amongst those struggling to make sense of the relations between forms of legal authority in an era increasingly suffused by ideas of political sovereignty, and dominated by tension between conceptions of the learned laws, local law, ideas of natural law, reason and equity. The difficulty was to formulate coherent conceptions which could be reconciled together within the legal order of a particular sovereign state with its own customs, statutes and court decisions.

An important focus of the book is to illuminate the process of creation and the meaning of the most famous and influential treatise ever written on Scots law, published by James Dalrymple, Viscount Stair, in 1681 as The Institutions of the Law of Scotland. A major purpose of Dr Ford’s book is 'to discover what Stair himself was trying to do in writing his Institutions' and to do this contextually through examining 'the relationship between the expert opinion of lawyers and the development of Scots law in the century preceding the union of parliaments of Scotland and England in 1707' (pp. ix-x). He does so by systematically exploring the intellectual, legal and political landscape in which seventeenth-century Scottish lawyers existed in order to reconstruct the various contexts in which they worked, engaged with and thought about law. Though a central aim is elucidation of Stair’s purpose in his juristic writing between the 1650s and 1690s, the approach adopted entails, amongst many other things, a deeply involved reappraisal of the full range of Scottish juristic work and thought in the period from the mid-sixteenth century to the union of 1707. Thus, taking only the best known examples, we find that the Ius feudale of Thomas Craig, the volumes of Practicks by Balfour and Hope, Skene's Lawes and Actes of Parliament, Sir George Mackenzie's Institutions, and Stair's Decisions of the Lords of Council and Session and his Institutions are all reassessed in great depth and subjected to a hugely illuminating degree of considered discussion in the context of a range of lesser known but significant works of the same period. From a comparative perspective, enlightening discussion is included of a range of continental legal literature, for example Jacques Godefroy's Commentaires sur la coustume reformée du pays et duché de Normandie (1626), cited frequently by Sir Thomas Hope (p. 255).

Though Dr Ford’s book could justifiably be seen as a magnum opus, it is in fact the first of a series of three connected books, all concerned with discovering Stair's purpose in writing his Institutions. It is clear that in the process they will also constitute a fundamental new interpretation of early modern Scottish legal thought generally. The wide range exemplified by the first volume derives from an impressive and rigorous methodology which entails reading Stair's work 'against the background of the concerns, presuppositions and linguistic conventions that he appears to have shared with his most likely readers' (p. x). Whilst the first volume, Law and Opinion, is more concerned with the contexts in which Stair wrote, it is implied that the remaining two volumes will give greater emphasis to interpreting the content of what he wrote, including his treatment of natural law and the wider philosophical context for his ideas. Perhaps surprisingly, remarkably little has ever been written about Stair or his juristic writing, despite his popular eminence in Scottish legal history, though there have been notable contributions by scholars such as A. H. Campbell, W. M. Gordon, David Sellar and Alan Watson, and important wider reappraisals by John Cairns. Otherwise it must be admitted that Stair has tended to be revered rather than analysed in historical context. Dr Ford is both remedying this defect but also doing so in such a way as to illuminate much wider themes.

The book is divided into six chapters. These are all between 90 and 100 pages long, and each is further subdivided into three sections, which are themselves formed around a series of headings. Though the book is very long, and the discussions it contains are very detailed, it is therefore rigorously and clearly structured. The chapters are framed around a loosely chronological treatment of what it meant for Stair to practise as advocate and judge in the College of Justice (the permanent institutional form given to the Court of Session through its reconstitution in 1532), starting with his admission in 1648. The six chapter titles are 'The College of Justice', 'The Interregnum Court', 'The Court of Law', 'The Restoration Court', 'The Revolution Court', and 'The Court of Equity'. As will be apparent from that list, the chapters do not have a simplistic common structure merely reviewing repeatedly the same core themes in relation to development over time. Though chronology is part of the structure of the book, much of the discussion is structured thematically so as to contribute to the development of the argument advanced as the book progresses. Though the role of lawyers, courts and jurisdiction are the principal focus in some parts, it is mainly legal sources, forms of legal writing, juristic argument, political and ideological context and methodology which constitute the material under discussion. The chapters tend not to form discrete and wholly separable units, but simply frame the various aspects of what is a continuous argument sustained throughout the book in relation to a large number of complementary strands. The book is therefore challenging to read, since an argument unfolding in this way over 572 pages is one which can afford to be searching and complex. However, assistance is gained from the fact that Dr Ford writes with great lucidity, with the result that the book is also a pleasure to read. The concentration of the author also appears never to lapse in holding the vast edifice of the book together, ensuring coherence and clarity.

In considering Scottish juristic writing, a constant focus of the book is 'to make some progress towards understanding how these authors conceived of the relationship between law and writing and what they aimed to do, as lawyers, by writing' (p. 29). This is obviously a theme of the widest possible interest in European legal history. The first chapter takes as a starting point the delivery by Stair of his lesson on the civil law to qualify for admission to the Scottish bar in 1648. This allows an informative discussion of Stair's possible view of the nature of legal debate, as well as the actual arguments presented by him. However, the chapter moves on to a fascinating treatment of the wider framework for discussion, including the transition in understandings of authorship and learned authority between the Middle Ages and the Renaissance, the relationship between written and unwritten law, the implications of the idea of a translatio studii made possible by the foundation of the College of Justice in 1532, and the ways in which law in Scotland was capable by the seventeenth century of being conceived by some as being 'written by learned as well as legislative authors' (p. 58). This leads to a treatment of Craig and Skene, prompted by discussion of the first printed edition of Ius feudale in 1655 (written around 1600) during the years of English occupation and 'union' with Scotland under the Cromwellian regime. Dr Ford argues persuasively that that was the inspiration for 'an upsurge in legal writing' over the next ten years which reflected a longer-term 'broader cultural programme' promoted by Sir John Scot of Scotstarvet (p. 559).

The production of Stairs own Institutions is then traced with regard to the manuscript tradition behind the printed text so that 'the text he wrote can be identified' (p. 61). The first printed edition of 1681 was preceded by a twenty year period after Stair had begun its composition, and whilst over 30 manuscripts survive, none is Stair's own. By comparing the manuscripts and the citations within them, Dr Ford traces how it is likely that Stair wrote most of the text between 1659 and 1661, then worked on it again in 1662, 1666 and 1667, and then not again until publication in 1681. Its roots in the experience of the 1650s are important. In this regard, the second chapter goes on to provide what will surely be the definitive account of the operation of the courts during the Interregnum period and the question of possible assimilation of English and Scots law during the 1650s. A huge amount of new light is shed upon the role of English lawyers sitting as Scottish judges in this period. As noted later in the book, this was a period 'when the danger that the law of Scotland would be treated as a regional custom accommodated within the common law of England gave advocates particular cause to consider the relationship between their law and the ius commune of Europe (pp. 208–9). A complex series of events following the Cromwellian conquest of Scotland had seen a system of judicial commissioners installed instead of the Court of Session, which did not sit between February 1650 and June 1661. Dr Ford notes that it was this system of justice that provided the immediate background to Stair's writing' (p. 91) and amongst other things demonstrates that 'he made frequent references to cases decided during the 1650s in the early versions of his text (p. 121).

Many other important questions are discussed in the course of the book, and it is impossible to do justice to them in a short review. One of the most important points of contact with existing debates is Dr Ford's elucidation of Stair's treatment of sources, which has been much discussed by legal historians alongside those of Craig, Skene and others. Such questions were not merely of jurisprudential interest, but possessed a political subtext informing the intractable seventeenth-century debate over whether a union of laws between England and Scotland was possible. Dr. Ford's treatment is so innovative that it does not so much contribute to this debate as simply absorb it into his much more extensive discussion. Some aspects of this involve exploring Stair's rejection of Craig’s view that feudal law itself constituted the ius proprium of Scotland and that on Craig's approach the Scots 'could satisfy their desire for written law by developing a body of learning in the minds of their own practitioners, for in doing so they would be using learned authority appropriated from the civil law' (pp. 239–40), as well as Stair's rejection with Craig of the authority of the Glanvillian medieval treatise Regiam Majestatem. Indeed, Ford concludes later that Stair 'appears to have promoted in Scotland a movement away from reliance on the learning of the schools towards reliance on the decisive determination of disputes by the courts'. This is suggestively presented as promoting 'a Scottish variant of a general shift in dependence from doctrine to decisions that is believed to have occurred throughout Europe during the sixteenth and seventeenth centuries' (p. 361). Indeed, from this perspective significance is attached to the argument that Stair did not rely on the transfer of learned authority to Scotland's College of Justice as the suggested means of development of the law but 'claimed instead that new cases should be determined by sovereign judges whose decisions, if adhered to in later cases, would give rise to customary laws enshrined in forms of action' (p. 569).

It will inevitably take time to absorb and assimilate the complex analysis presented in Dr Ford’s magisterial account. The book is relevant to all legal historians of early modern Europe, not only Scotland or England. In an ideal world it would also be helpful to have in a subsequent volume or a separate article more of an overview of the overall argument with a historiographical slant, reviewing how the conclusions of the book sit with existing accounts of the history of Scots law, and going further to make explicit any critique of those accounts from that perspective. What is already clear, however, is that all such debates will be transformed by this inspiring work of outstanding scholarship.