Edinburgh Research Explorer Legal Nationalism Citation for published version: MacQueen, H 2005, 'Legal Nationalism: Lord Cooper, Legal History and Comparative Law', Edinburgh Law Review, vol. 9, no. 3, pp. 395-406. https://doi.org/10.3366/elr.2005.9.3.395 Digital Object Identifier (DOI): 10.3366/elr.2005.9.3.395 Link: Link to publication record in Edinburgh Research Explorer Document Version: Publisher's PDF, also known as Version of record Published In: Edinburgh Law Review Publisher Rights Statement: ©MacQueen, H. (2005). Legal Nationalism: Lord Cooper, Legal History and Comparative Law. Edinburgh Law Review, 9(3), 395-406 doi:10.3366/elr.2005.9.3.395 General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 27. Sep. 2021 EdinLR Vol 9 pp 395–406 Legal Nationalism: Lord Cooper, Legal History and Comparative Law Hector L MacQueen* This paper is one of a set of studies on the contribution of Lord Cooper of Culross (1892–1955) to the development and understanding of Scots law, including its history, and to the phenomenon of Scottish legal nationalism.1 Cooper is one of the major figures of Scots law in the twentieth century. He practised at the bar between the two world wars, became an MP and Lord Advocate (the principal Scottish Law Officer) in the 1930s, and in 1941 was appointed to the Court of Session bench, first as Lord Justice Clerk and, then, in 1947, as Lord Justice General and Lord President, head of the Scottish judiciary. He was also, in 1934, one of the founders of the Scottish legal history society, the Stair Society, and made significant contributions to its early volumes, in particular with editions of the medieval texts Regiam Majestatem, Quoniam Attachiamenta and the “Register of Brieves”.2 Cooper was also a prolific writer and commentator on the law in aspects other than its history, and a collection of his papers appeared after his premature death following a cerebral thrombosis.3 My principal reason for first becoming interested in Cooper many years ago was his work on the medieval history of Scots law, and the English influences which were so important to that history. He had certain theories on this subject with which I soon found myself in significant (although not total) disagreement. I do not wish to elaborate further on this theme here; most of my observations on the *Professor of Private Law, University of Edinburgh. This is the revised text of a lecture given at the British and Irish Legal History Conference held in Dublin 2–5 July 2003. 1 For the identification of the phenomenon see initially J P Grant’s Introduction to the collection which he edited, Independence and Devolution: The Legal Implications for Scotland (1976) ix. See also H L MacQueen, “Regiam Majestatem, Scots law and national identity” (1995) 74 Scottish Historical Review 1, and L Farmer, “Under the shadow of Parliament House: The strange case of legal nationalism”, in L Farmer and S Veitch (eds), The State of Scots Law: Law and Government after the Devolution Settlement (2001) 151. For other relevant papers of mine see below, notes 8 and 29. 2T M Cooper, The Register of Brieves 1286–1386, (Stair Society, vol 10, 1946); T M Cooper, Regiam Majestatem and Quoniam Attachiamenta, (Stair Society, vol 11, 1947). 3 Selected Papers 1922–1954 (1957). The book is prefaced with a biographical memoir written by Cooper’s brother. 395 ELR9_3_02_MacQueen_395 395 9/22/05, 8:40 AM 396 the edinburgh law review Vol 9 2005 subject can be found in other, earlier writings of mine.4 Instead, I intend here to look at Cooper’s historical work in its own historical context, and in its relation to his other contributions to thought about Scots law, especially to Scottish legal nationalism. Nearly thirty years ago, on what appeared to be the eve of devolution of legislative power to a Scottish Assembly, Ian Willock published a paper, entitled “The Scottish Legal Heritage Revisited”, in which he argued that Scots law had been fitted out with an ideology since the Second World War.5 This ideology had two prime begetters. One was Professor T B (later Sir Thomas) Smith. The other was Lord Cooper, who had been Smith’s guide and mentor. What Willock therefore dubbed “the Cooper–Smith ideology” could be summarised broadly as follows. Modern Scots private law was a “mixed” system, in which a basically Civilian structure had been overlaid since the Union of 1707 by influence from the English Common Law, through the agencies of Westminster, UK government departments in Whitehall, the common appeal court in the House of Lords, and the ignorance and apathy of Scots lawyers. The English influence had almost never been for the good. Scots law could only be saved by drawing upon its own historical roots and the experience of other “mixed” systems, such as those of South Africa and Louisiana, where too a basically Civilian system was threatened by infiltration from alien traditions. Since Willock wrote, there has been much debate about and discussion of the “Cooper–Smith ideology” in Scotland, with supporters and critics in more or less equal measure.6 My own contribution to date has been to confirm what others have also noted, that many elements of the “Cooper–Smith ideology” can actually be found in articulate existence long before the Second World War: a particularly striking statement of it is the manifesto of the Stair Society, published in 1934.7 Further, Cooper himself appears to have formulated most of the elements of the ideology between 1945 and 1949, before Smith made his bow in legal literature, and the latter seems to have seen himself as picking up the former’s standard after his death in 1955, rather than as having been an equal partner in its creation. But further, despite his involvement in the founding of the Stair Society, Cooper 4 In particular, my Common Law and Feudal Society in Medieval Scotland (1993), and “Scots law under Alexander III”, in N H Reid (ed), Scotland in the Reign of Alexander III (1990) 74. 5 “The Scottish legal heritage revisited”, in Grant (ed), Independence and Devolution, note 1 above. 6 See e.g. A. Rodger, “Thinking about Scots law” (1996) 1 EdinLR 3; Farmer, “Under the shadow of Parliament House”, above note 1; K G C Reid, “The idea of mixed legal systems”, (2003) 78 Tulane Law Review 5. Many of the papers in e.g. R Evans-Jones (ed), The Civil Law Tradition in Scotland (1995), H L MacQueen (ed), Scots Law into the Twenty-first Century (1996), and D L Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law (1997) are also, directly or indirectly, contributions to that discussion. 7 For the proposal see (1934) 46 JR 197. ELR9_3_02_MacQueen_395 396 9/22/05, 8:40 AM Vol 9 2005 legal nationalism 397 himself does not appear to have taken up the ideology in any published work of his own until after 1945. Before then, his writings suggest rather a Savigny-esque sense that Scots law reflected something of the spirit of the Scottish people, along with anxiety about the contemporary submersion of Scottish distinctiveness in general. 8 In contrast to others such as Lords Macmillan and Normand,9 however, Cooper seemed to attach little importance in this regard to the Civilian dimension of Scots law. His concerns were more over what the English Lord Chief Justice, Lord Hewart, had called the “new despotism” of the burgeoning State,10 and the need to reform Scots private law and court procedures if they were to continue to meet the requirements of the Scottish people. When Cooper publicised the new Stair Society to the Scottish legal profession in 1934, for example, it was to argue for the role the Society could play in engendering a modern rebirth of Scots law:11 [T]his project may pave the way to an expansion of beneficent activities in many directions—leading, perhaps, with the assistance of the universities and the legal societies, to an improved system of legal education, to large-scale legal reforms, and eventually to a Scottish legal renaissance … What is also apparent is that, while Cooper was clearly always interested in the history of the law, the medieval law with which he would later be strongly associated did not attract him initially. His few early writings on, or references to, history are concerned, conventionally enough, with the Institutional Writers of the seventeenth and eighteenth centuries (Stair, Erskine and Bell), and praise the way in which they developed the law to meet the needs of their times (i.e., did what he thought lawyers of his own day should be doing).12 Indeed, so far as I have discovered, Cooper wrote nothing about medieval law until an article published in 1936 in the first volume of the Stair Society. The volume took the form of a survey of the sources and literature of Scots law, and 8 For what follows see my “Legal nationalism: The case of Lord Cooper”, in N M Dawson (ed), Reflections on Law and History forthcoming (2006); also “Two Toms and an ideology for Scots law: T B Smith and Lord Cooper of Culross”, in E Reid and D L Carey Miller (eds), A Mixed Legal System in Transition: T B Smith and the Progress of Scots Law (2005) 44.