Date: Mon, 11 Dec 2006 22:41:35

From: Hector MacQueen

Subject: The Scope of Private Law

Scotland Act 1998 s 126(4) defining Scots private law for the purpose of defining what law is within the legislative competence of the devolved Scottish Parliament -

(4) References in this Act to Scots private law are to the following areas of the civil law of Scotland -

(a) the general principles of private law (including private international law),

(b) the law of persons (including natural persons, legal persons and unincorporated bodies),

(c) the law of obligations (including obligations arising from contract, unilateral promise, delict, unjustified enrichment and negotiorum gestio),

(d) the law of property (including heritable and moveable property, trusts and succession), and

(e) the law of actions (including jurisdiction, remedies, evidence, procedure, diligence, recognition and enforcement of court orders, limitation of actions and arbitration),

and include references to judicial review of administrative action.

For my part, I would certainly exclude judicial review (undoubtedly public law). But otherwise the above, based on the classical Roman law structure of Persons (a), Things (b) and (c) and Actions (d), seems to define pretty well the scope of private law in the western legal tradition.

Useful reading on the jurisprudence - Ernest Weinrib, The Idea of Private Law. And I believe Neil MacCormick will shortly be publishing some further analysis of the subject.

Hector

--
Hector L MacQueen
Professor of Private Law
Director, AHRC Research Centre Intellectual Property and Technology Law Edinburgh Law School University of Edinburgh Edinburgh EH8 9YL UK
Tel: (0)131-650-2060; Fax: (0)131-662-6317

Quoting John Swan:

Jason,

I don't think that your question can be answered as you have phrased it. The important question to a common lawyer would be, why do you want to know? If you were to ask, e.g., whether a plaintiff has pleaded a cause of action in contract, i.e., a question relevant under the Rules of Civil Procedure, you would have to ask investigate the statement of claim to see if the plaintiff had alleged a contract and its breach. Since the answer to the question whether the plaintiff has shown a cause of action, involves both the provisions of an Ontario regulation and the requirements of the common law for a valid contract, the question whether private law is involved or not has to be yes — at least to some extent. But then too is public law equally involved.

Similarly the rules of evidence regarding, say, the ability of a court to get evidence from a witness in a foreign jurisdiction, have both a public and a private law dimension; public because the power of an Ontario court to make the request is based on legislation and private because the evidence may be important to establish, for example, that there is (or is not) a contract.

I don’t think that those answers are particularly helpful but, if they give you an answer to your question, so much the better. In other words, I don't think that it is possible to answer your questions in the abstract. Abstract questions like yours are too reminiscent of the kind of questions I get asked by my tax partners where the question, "Why to you want to know?", can't be answered or, more often is irrelevant.

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