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Legal History and Modern Legal Practice, As Well As the Role of Fundamental Concepts Such As Bona Fides in Scots Law

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Legal History and Modern Legal Practice, As Well As the Role of Fundamental Concepts Such As Bona Fides in Scots Law Edinburgh Student Law Review 2021 Volume IV | Issue 2 i ii Sponsor iii iv Edinburgh Student Law Review 2021 Honorary President Honorary Secretary Lord Hope of Craighead Professor Andrew Steven Editors-in-Chief Jonathan Ainslie Maya Sajeev Content Editors Alberto Brown Matthew Cleary Jackson Allen Nidhi Sahay Benjamin Cohen-Murison Patrick Follan Ruby Reed-Berendt Martina Cerna Tahir Erdogan Susanna Macdonald-Mulvihill Ke Song Jergus Pella Lynn Kennedy Matthias Goldbeck Daniela Mardones Shona Warwick Andreea Mihut Managing Copy Editor Helena Wilson Chief Copy Editors Madeleine Chambers Dina Al-Mamlouk Thea Messina Publications Officers Finance Officers Juan Estay Zanartu Ruth Levy Valentina da Costa Haneen Ahmad Copy Editors Jamie Perriam Usama Khan Geena Reilly Kyna Loughlin Angeliki Antoniadou Finn Mitchell Silvia Bardaji Holly Richardson Grace Gubbins Alexander Kerr Tanvi Ajmera Gabriella Barnes v vi Foreword to the First Volume by Lord Hope of Craighead I offer my warmest congratulations to those whose idea it was to institute the Edinburgh Student Law Review and to everyone who has been responsible for bringing this issue forward to publication. It is the first student-produced law review in Scotland and only the third in the United Kingdom. It is fitting that the Law School at Edinburgh – a city that was in the forefront of publishing political reviews in the age of enlightenment – should lead the way here north of the border. Ground-breaking though its publication may be in this jurisdiction, the Review follows a tradition that has long been established among the leading law schools in the United States. The editorship of student law reviews in that country is much sought after, as is the privilege of having a paper accepted by them for publication. The stronger the competition for these positions, the higher the standard that is exhibited by those who occupy them. It is well known that their editors are singled out by the Justices of the US Supreme Court and the Federal Appeals Courts when they are recruiting their law clerks. The reflected glory that this produces enhances in its turn the reputation of the reviews. A reference to editorship of this Review will not escape notice if it appears on the CV of someone who is applying to be a judicial assistant to the UK Supreme Court. But participation in its publication will be of benefit in so many other ways too. This is pre-eminently a publication by and for students. Its aim is to enhance standards of thinking and writing about law and to promote discussion among all those who are studying law, at whatever level this may be. Law is pre-eminent among the professional disciplines in its use of words to convey ideas. Thinking and writing about law is an essential part of legal training. So too is the communication of ideas about law, as each generation has its part to play in the way our law should develop for the future. I wish all success to those who will contribute to this project, whether as writers or as editors, and I look forward to the benefits that will flow from making their contributions available through this publication to the wider legal community. David Hope March 2009 vii viii Editorial It is with great pleasure that we present the second issue of the fourth volume of the Edinburgh Student Law Review. We continue to owe much to both the academic faculty and professional services staff of the Edinburgh Law School, who have been unfailing in the support they have provided since the foundation of the ESLR. Special thanks must go to our Honorary Secretary, Dr Andrew Steven, as well as to Professor Paul du Plessis, who has written the guest article for this year’s issue, asking “what is the point” of legal historical scholarship. We are as ever grateful to our Honorary President, Lord Hope of Craighead. We are also grateful to our sponsor this year, Turcan Connell, who have continued to support us in a difficult period. It is a point of pride for us that the Review remains completely run by students, ranging from undergraduates to doctoral candidates. Over the years, countless students have dedicated their time and effort to its success. The ESLR provides an opportunity for students to develop a full range of skills in writing and editing for academic publication and we hope this has helped to prepare them for a future career. This year has continued to bring additional challenges, as the second wave of the COVID-19 pandemic disrupted our activities. In the face of these challenges, we must recognise the achievements of both our content editors and copy editing teams, who for the first time have carried out their work entirely remotely. We are also grateful to the publications team, as well as our finance officers, who have secured continued sponsorship for the ESLR at a time when many organisations are tightening their belts. We aim to provide students with a forum where they can express their ideas on a diverse range of topics. This year we have chosen to focus on the relationship between legal history and modern legal practice, as well as the role of fundamental concepts such as bona fides in Scots law. We are as always especially pleased to have received submissions from institutions around the UK and the world. We would like to thank all those who submitted to the ESLR this year and we hope that those who were not successful will consider submitting in future. We are extremely proud to have been part of the ESLR and we hope you enjoy this edition as much as we have enjoyed preparing it. Jonathan Ainslie & Maya Sajeev Co-Editors-in-Chief 2020-2021 ix x Table of Contents Paul du Plessis Legal history: The point of it all 1 Lea Meraku Delving into the controversy of 4 Periculum Est Emptoris: has the Roman rule of risk been judged too harshly? Olivia Gemmell Is good faith leaving a bad taste? 9 The role of good faith in the transfer of corporeal property in Scots law Frank Gill “A workman that needeth not to be 21 ashamed”: Bona fides in specification Paulina Pauliūnaitė Recognising the human body and 28 its biological and genetic material as property Harry Donnelly To what extent does the trustor’s 39 contractarian freedom to define the beneficiaries’ interests come at the expense of creditors who contract with the trust parties? Benjamin Cohen-Murison The purpose trust: How its scope 47 can be rethought using the secondary multiplier effect Michael Marsala Case note: C v Chief Constable of 59 the Police Service of Scotland [2019] CSOH 48; [2020] CSIH 61 Alison Howells “Out with the old, in with the 64 new”: Are civil remedies for domestic abuse in Scotland in need of reform? James Brown Genetic modification: Should we 82 cross the Rubicon and legalise human germline genome editing? Avoiding “designer DNA” using a regulatory approach based on human rights principles Lillie Louise Teden Does the protected characteristics 95 framework properly accommodate perception based discrimination against minority groups? Stuart Coleman Distinction and the death of the 113 battlefield: drone warfare and insurgencies in the Middle East xi xii LEGAL HISTORY: THE POINT OF IT ALL Paul J du Plessis* Legal history is to law what medical history is to medicine, or architectural history is to architecture.1 It is the history of a professional discipline in all its complexity, and includes both narrow questions, such as the origins of specific rules or doctrines of law, as well as broader ones, such as the relationships between law and society at any given point in the past.2 Few would deny that history is central both to the study and the teaching of law. After all, any legal system, irrespective of its legal tradition, is fundamentally “historically oriented”, since the main agents of legal change (whether statute or judicial precedent) are rooted in the past, and the task of the academic jurist, the practicing solicitor or advocate, and the judge, consists primarily in the application of something which has come before (in the past) to the current problem (the present) using the principle of analogy.3 And yet, legal history is often under pressure in the curricula of Law Schools. The source of this pressure is twofold. The first of these may be grouped under the broad term of “relevance”.4 When embarking upon the study of law for the first time, it is not uncommon to have a preformed mental image (rooted in representations of these professions in the popular media or by their limited engagement with aspects of law in school subjects such as Modern Studies) of the nature of law and the core activities of the legal profession. This mental image can sometimes be irrevocably rooted in modernity. Since contemporary legal practice deals with the problems of (mainly) the living (or recently deceased), so the argument goes, it can be difficult to see what intellectual benefit legal history could have to someone wishing to practice modern law. Ulpian said nothing about blockchain, for example, nor did Sir James Dalrymple have any views on the ownership of cloned cells. Although the manner in which this statement is presented here is, of course, facetious, this point of view is aired more often than one would imagine and is indicative of a notion whereby the past is, well, “the past” and should stay there, like a set of paintings by great masters in an art gallery – there to be admired but never touched. As one’s engagement with the subject grows, one soon realises, however, that history is ever present in the study of contemporary law.
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