法学电子教案合集（参考资料）_滥用权力所涉及的法律原则

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Code in the early nineteenth century, and thus the principles of the evolved Civil Law had not become fully related and systematised Instead the Scots had succumbed to the pressures and blandishments of English legal doctrine' and this had been 'to the detriment of [their law.comparativelawcouldhoweverredresstheresultantdistortions by taking cross-bearings on her position from other so-called "mixed systems'. Thus Smith urged the teachers of the Civil Law in Scottish universities -as the fideicommissaries of the past and fiduciaries for the future's-that they had a' special duty to denounce the strange god and to preach a return to purer doctrine. The first question raised by this rousing rhetoric is whether in fact a doctrine of abuse of rights belongs within the legal tradition of Scotland as a mixed jurisdiction. 2. Rejection of aemulatio vicini: a strange god? The doctrine of aemulatio vicini, bracketed by Smith with abuse of rights encompasses the general principle that no one should exercise what is otherwise a legitimate right in a way which is solely motivated by the de esire ause annoyance to his or her neighbour Typically it is found in the context of neighbourhood law: if, for example, one discovers that a neighbours house is served by a pipe leading under one's own garden, one is not entitled to cut off the supply, even in the absence of a servitude right(easement), when there is no legitimate reason for doing Smith had singled out this particular area of law because of what he saw as the insensitive treatment of aemulatio vicini by the courts over the years: Scots law had been gravely compromised by incautious ad hoc references to“ common law” solutions’.皿 In smith' s account,the difficulties began with the reasoning applied by Lord Watson(a Scottish Law Lord) in the well-known nineteenth-century House of Lords English case, Mayor of Bradford v Pickles. The ' false god held up in that case was the principle that, in Lord Watsons words, no use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicic In adopting this principle for English law, their Lordships had been fortified by lord Watson s observation that the aemulatio vicini doctrine had in effect fallen into desuetude in Scots law: 4) I am aware that the phrase in aemulationem vicini was at one time frequent ly, and is even now occasionally, very loosely used by Scottish lawyers. But I know of no case in which the act of a proprietor has been found to be illegal, or restrained as being in aemulationem, where it was not at tended with offence or

Code in the early nineteenth century, and thus the principles of the evolved Civil Law had not become 'fully related and systematised'.(5) Instead the Scots had succumbed to the 'pressures and blandishments of English legal doctrine' and this had been 'to the detriment of [their] law'.(6) Comparative law could, however, redress the resultant distortions by taking 'cross-bearings on her position from other so-called “mixed” systems'.(7) Thus Smith urged the teachers of the Civil Law in Scottish universities - as the 'fideicommissaries of the past and fiduciaries for the future'(8) - that they had a 'special duty to denounce the strange gods, and to preach a return to purer doctrine'.(9) The first question raised by this rousing rhetoric is whether in fact a doctrine of abuse of rights belongs within the legal tradition of Scotland as a mixed jurisdiction. 2. Rejection of aemulatio vicini: A strange god? The doctrine of aemulatio vicini, bracketed by Smith with abuse of rights, encompasses the general principle that no one should exercise what is otherwise a legitimate right in a way which is solely motivated by the desire to cause annoyance to his or her neighbour. Typically it is found in the context of neighbourhood law: if, for example, one discovers that a neighbour's house is served by a pipe leading under one's own garden, one is not entitled to cut off the supply, even in the absence of a servitude right (easement), when there is no legitimate reason for doing so. (10) Smith had singled out this particular area of law because of what he saw as the insensitive treatment of aemulatio vicini by the courts over the years: Scots law had been gravely compromised by 'incautious ad hoc references to “common law” solutions'.(11) In Smith's account, the difficulties began with the reasoning applied by Lord Watson (a Scottish 'Law Lord') in the well-known nineteenth-century House of Lords English case, Mayor of Bradford v Pickles. (12) The 'false god' held up in that case was the principle that, in Lord Watson's words, 'no use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious'.(13) In adopting this principle for English law, their Lordships had been fortified by Lord Watson's observation that the aemulatio vicini doctrine had in effect fallen into desuetude in Scots law:(14) I am aware that the phrase 'in aemulationem vicini' was at one time frequently, and is even now occasionally, very loosely used by Scottish lawyers. But I know of no case in which the act of a proprietor has been found to be illegal, or restrained as being in aemulationem, where it was not attended with offence or

injury to the legal rights of his neighbour The law of Scot land. if it differs in that, is in all other respects the same wi th the law of Eng land. No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious. And when it comes to depriving a nei ghbour of an amenity such as water or light or prospect in the absence of a relevant easement, Mayor of Bradford remains authoritative in English law. The existence of public law controls curbing antisocial developments means that modern cases are much rarer than during the era of rapid industrialisation and urbanisation, but from time to time English litigants are still reminded that there is no absolute rule of law which prevents landowners from using their land in a way which injures a neighbour. And, as is well known, Mayor of Bradford did not end there. The denial of malice as a determining factor--was rapidly carried over from the context of landownership to the economic torts. A year or two later, in the landmark English case of Allen v Floodin(involving a trades union dispute where one group of workers effectively induced an employer to sack another, smaller group of workers), the unfaltering Lord Watson could be found declaring that the law of England does not take into account motive a constituting an element of civil wrong the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due.-- There then followed a string of further English tort cases involvin interference with employment contracts, in which the courts unhesitatingly took up an abstentionist stance, steering clear of any kind of regulatory role over unfair trade practices, even where the actions complained of were patently unfair. 9 In turn, this laissez-faire disregard of malicious motive spilled over into comparable Scots cases. One of the cases noted particularly by Smith 202 was Mackenzie y Iron trades Association. 21 In that case, the first Division of the Court of Session drew upon the reasoning applied in allen v Flood to refuse the claim of an unemployed ironworker against the employers' insurance organisation which had effectively put him on to an employers' blacklist. There is a series of further, perhaps less well-known, cases in the early years of the twentieth century in which the authority of Allen v Flood is accepted more or less without reservation by the Scots courts in order to dismiss claims without regard to the existence of malice. 22 However, the case which has attracted most comments is Crofter Handwoven Harris Tweed Co v Veitch, a case concerning the delict of conspiracy, again in relation to an industrial dispute. In the house of lords. the lord chancellor viscount simon asserted without challenge that, as far as interference with trade was concerned

injury to the legal rights of his neighbour . . . The law of Scotland, if it differs in that, is in all other respects the same with the law of England. No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious. And when it comes to depriving a neighbour of an amenity such as water or light or prospect in the absence of a relevant easement, Mayor of Bradford remains authoritative in English law. The existence of public law controls curbing antisocial developments means that modern cases are much rarer than during the era of rapid industrialisation and urbanisation, but from time to time English litigants are still reminded that there is no absolute rule of law which prevents landowners from using their land in a way which injures a neighbour.(15) And, as is well known, Mayor of Bradford did not end there. The denial of malice as a determining factor(16) was rapidly carried over from the context of landownership to the 'economic torts'. A year or two later, in the landmark English case of Allen v Flood (17) (involving a trades union dispute where one group of workers effectively induced an employer to sack another, smaller group of workers), the unfaltering Lord Watson could be found declaring that 'the law of England does not . . . take into account motive as constituting an element of civil wrong . . . the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due'.(18) There then followed a string of further English tort cases involving interference with employment contracts, in which the courts unhesitatingly took up an 'abstentionist' stance, steering clear of any kind of regulatory role over unfair trade practices, even where the actions complained of were patently unfair.(19) In turn, this laissez-faire disregard of malicious motive spilled over into comparable Scots cases. One of the cases noted particularly by Smith(20) was Mackenzie v Iron Trades Association. (21) In that case, the First Division of the Court of Session drew upon the reasoning applied in Allen v Flood to refuse the claim of an unemployed ironworker against the employers' insurance organisation which had effectively put him on to an employers' blacklist. There is a series of further, perhaps less well-known, cases in the early years of the twentieth century in which the authority of Allen v Flood is accepted more or less without reservation by the Scots courts in order to dismiss claims without regard to the existence of malice.(22) However, the case which has attracted most comments is Crofter Handwoven Harris Tweed Co v Veitch, a case concerning the delict of conspiracy, again in relation to an industrial dispute. In the House of Lords, the Lord Chancellor, Viscount Simon, asserted without challenge that, as far as interference with trade was concerned

here was no difference between Scots law and the English law of Tort. 23 TB Smith perceived this as a particularly insidious method of subverting Civilian principles by Common law Doctrines' None of these early twentieth-century Scots cases made anything of Civilian principles: all relied substantially upon the reasoning of Allen v Flood and the cases deriving from it. Allen v Flood drew heavily upon the principles stated in Mayor of Bradford, and Mayor of Bradford in turn was premised on Lord Watson's assurance that aemulatio vicini was all but obsolete in Scotland. If that initial premise was mistaken, then it for English I nces for english law, but Scottish courts But was Lord Watson wrong in belittling the significance of the aemulatic vicini doctrine? The answer to that question is not entirely straightforward 3. Aemulatio vicini in the scots Institutional 2o2 writers The civilian credentials of the doctrine of aemulatio vicini are detailed in the seminal article by Professor Scholtens published in the South African Law ournal in the same year as Smith s inaugural lecture quoted in the opening paragraph, 1958. More recently they have been traced he Scots perspective by David Johnson in his essay Owne Neighbours: From Rome to Scotland. Classical Roman law had no coherent doctrine of aemulatio vicini, even in the neighbourhood context, and no general doctrine of abuse of rights. What Johnson has shown is that the rules on aemulatio were built up incrementally, on the basis of Digest sources, by the Glossators and Post-Glossators and by specific reference to the relevance of malicious motive in, for example, the cautio damni infecti and the actio aquae pluviae arcendae. Aemulatio vicini was thus received into Scots law as a doctrine not of classical roman law but of the ius commune There is ample discussion in the Scots Institutional writers of the role of malice or aemulatio. While there is little evidence of an overarching doctrine punishing the abuse of rights in all contexts - as developed later in many Civil Law systems there is plentiful evidence, as noted elow, that malice was considered relevant in the context of neighbour law. Bankton also mentions malice as a determining factor in the context of whether one could be permitted to set up a fair or market close to

there was no difference between Scots law and the English law of Tort.(23) T B Smith perceived this as a 'particularly insidious method of subverting Civilian principles by Common law Doctrines'.(24) None of these early twentieth-century Scots cases made anything of Civilian principles: all relied substantially upon the reasoning of Allen v Flood and the cases deriving from it. Allen v Flood drew heavily upon the principles stated in Mayor of Bradford, and Mayor of Bradford in turn was premised on Lord Watson's assurance that aemulatio vicini was all but obsolete in Scotland. If that initial premise was mistaken, then it is for English lawyers to assess the consequences for English law,(25) but it would seem to follow that Allen v Flood was of dubious relevance to Scotland and should not have been considered authoritative in the Scottish courts. But was Lord Watson wrong in belittling the significance of the aemulatio vicini doctrine? The answer to that question is not entirely straightforward. 3. Aemulatio vicini in the Scots Institutional(26) writers The Civilian credentials of the doctrine of aemulatio vicini are detailed in the seminal article by Professor Scholtens published in the South African Law Journal in the same year as Smith's inaugural lecture quoted in the opening paragraph, 1958.(27) More recently they have been traced from the Scots perspective by David Johnson in his essay 'Owners and Neighbours: From Rome to Scotland'.(28) Classical Roman law had no coherent doctrine of aemulatio vicini, even in the neighbourhood context, and no general doctrine of abuse of rights. What Johnson has shown is that the rules on aemulatio were built up incrementally, on the basis of Digest sources, by the Glossators and Post-Glossators and by specific reference to the relevance of malicious motive in, for example, the cautio damni infecti and the actio aquae pluviae arcendae. (29) Aemulatio vicini was thus received into Scots law as a doctrine not of classical Roman law but of the ius commune. There is ample discussion in the Scots Institutional writers of the role of malice or aemulatio. While there is little evidence of an overarching doctrine punishing the abuse of rights in all contexts - as developed later in many Civil Law systems - there is plentiful evidence, as noted below, that malice was considered relevant in the context of neighbour law. Bankton also mentions malice as a determining factor in the context of whether one could be permitted to set up a fair or market close to

hat of another. 0 Clearly the basic principle was that owners could do what they wished with their own property. Bankton then drew a distinction between actions which cause direct damage to a neighbour and those which only deprive of a benefit:There is a great difference between one s suffering damage, and his being precluded from a benefit or conveniency which he was formerly using. While direct damage was generally actionable, actions which merely deprived of a benefit were not, and that expressly included operations which obstruct a neighbours light or prospect. Kames also drew a distinction between actions which caused direct harm to neighbours (which were not permitted and to which malice was not particularly relevant -or relevant presumably only as an exacerbating factor) and those which caused consequential damage. 3 All of the writers, while conceding that consequential damage was normally not actionable, qualified this general rule to the effect that even consequential damage was not to be tolerated in the presence of malice or envy. In other words -or in the words of the pursuer in Ralston v Pettigrewa5-' the proper place for [aemulatio vicini] is where something has been done, which, though disagreeable, or even pre judicial to a neighbour, yet does not directly encroach upon, or destroy any part of his property. Erskine gave the specific example of a proprietor draining off excessive amounts from a watercourse simply to throw them way and deprive a neighbour, and Erskines editor added in as an example the erection of high walls to block out a neighbours light. D These are both examples which find exact parallels in the French abu of rights case-law The Scots position was summarised in the nineteenth century by bell te the effect that no one is entitled to act wantonly, with the mere purpose of producing inconvenience and loss to his neighbour in aemulationem vicini, and in a later passage, quoted in bradford v Pickles, he noted that whether the harm caused by their actions is direct or consequential, landowners must not act in spite or malice -in aemulationem vicini. 40) These commentaries demonstrate that aemulatio vicini was recognised in Scots law prior to Mayor of Bradford v Pickles. However, they give little indication of how it worked. Hume went some way towards defining malice in terms of malicious and unsocial purpose palpable to the common apprehension, 4 but these are all terms which have caused considerable controversy and voluminous discussion in the literature on the Civilian abuse of rights doctrine. In order to understand what malice meant, and the level of intention required before the landowner was stopped from doing what he chose with his property, the case-law from the same period

that of another.(30) Clearly the basic principle was that owners could do what they wished with their own property.(31) Bankton then drew a distinction between actions which cause direct damage to a neighbour and those which only 'deprive of a benefit': 'There is a great difference between one's suffering damage, and his being precluded from a benefit or conveniency which he was formerly using.'(32) While direct damage was generally actionable, actions which merely deprived of a benefit were not, and that expressly included operations which obstruct a neighbour's light or prospect. Kames also drew a distinction between actions which caused direct harm to neighbours (which were not permitted and to which malice was not particularly relevant - or relevant presumably only as an exacerbating factor) and those which caused consequential damage.(33) All of the writers, while conceding that consequential damage was normally not actionable, qualified this general rule to the effect that even consequential damage was not to be tolerated in the presence of malice or envy.(34) In other words - or in the words of the pursuer in Ralston v Pettigrew (35) - 'the proper place for [aemulatio vicini] is where something has been done, which, though disagreeable, or even prejudicial to a neighbour, yet does not directly encroach upon, or destroy any part of his property'. Erskine gave the specific example of a proprietor draining off excessive amounts from a watercourse simply to throw them away and deprive a neighbour,(36) and Erskine's editor added in as an example the erection of high walls to block out a neighbour's light.(37) These are both examples which find exact parallels in the French abuse of rights case-law.(38) The Scots position was summarised in the nineteenth century by Bell to the effect that 'no one . . . is entitled . . .to act wantonly, with the mere purpose of producing inconvenience and loss to his neighbour in aemulationem vicini',(39) and in a later passage, quoted in Bradford v Pickles, he noted that whether the harm caused by their actions is direct or consequential, landowners must not act in spite or malice - in aemulationem vicini. (40) These commentaries demonstrate that aemulatio vicini was recognised in Scots law prior to Mayor of Bradford v Pickles. However, they give little indication of how it worked. Hume went some way towards defining malice, in terms of 'malicious and unsocial purpose palpable to the common apprehension',(41) but these are all terms which have caused considerable controversy and voluminous discussion in the literature on the Civilian abuse of rights doctrine. In order to understand what malice meant, and the level of intention required before the landowner was stopped from doing what he chose with his property, the case-law from the same period

must be examined 4. Aemulatio vicini in the case-law It is quite clear looking at the early cases that the phrase'it aemulationem vicini was in fairly frequent use, as a means or establishing a form of private law proportionality in disputes between individuals. The first appearance of the term is commonly attributed to a line of cases concerning fairs or markets in the early seventeenth century. But the largest number of references to aemulatio vicini i to be found in neighbour law- typically water disputes in the rural setting and disputes over light in the urban setting. The Property section of Morisons Dictionarys contains a number of cases which invoke this principle, often citing Ius Commune writers as authority. - In aemulatio vicini is given passing consideration only and malice is not in issue: for example, a neighbour ob jects to a particular type of land use, and the defender responds to the effect that an owner may do what he likes with his property except where he acts in aemlationem vicini, or the pursuer argues that for the defender to oppose a proposed operation is to act in aemlationem vicini. Such cases confirm that the existence of the doctrine was uncontentious, but they do little to assist the understanding of its scope. In the few cases where malice is disputed, there is scarcely any more analysis, although there is suggestion that malice might extend to personal avarice as well as spite towards ones neighb our The indications are, therefore, that the doctrine had not been fully related or systematised in the Institutional writers or in the contemporaneous case-law, but that is perhaps not so surprising. althougI the doctrine may have existed in the jurisprudence and doctrine of the Civil law systems of the eighteenth century, one could hardly call it systematised there at that time. 47 and indeed in france it has to th day not been codified. Even in the Civil Law systems where it has now been translated to modern codified provisions, these are typically so bland as to be meaningless without reference to case-law. Indeed, moving forward to the period preceding Mayor of Bradford, the Scots cases indicate only a marginal role for malice, apart from in procedural applications the malicious use of diligence, wrongous arrestment upon the dependence of a court action, and malicious prosecution -where malice is approached rather differently. While aemulatio vicini was pled relatively frequently during that period, such pleadings were seldom successful. One example demonstrating its

must be examined. 4. Aemulatio vicini in the case-law It is quite clear looking at the early cases that the phrase 'in aemulationem vicini' was in fairly frequent use, as a means of establishing a form of private law proportionality in disputes between individuals. The first appearance of the term is commonly attributed to a line of cases concerning fairs or markets in the early seventeenth century.(42) But the largest number of references to aemulatio vicini is to be found in neighbour law - typically water disputes in the rural setting and disputes over light in the urban setting. The 'Property' section of Morison's Dictionary (43) contains a number of cases which invoke this principle, often citing Ius Commune writers as authority.(44) In most, aemulatio vicini is given passing consideration only and malice is not in issue: for example, a neighbour objects to a particular type of land use, and the defender responds to the effect that an owner may do what he likes with his property except where he acts in aemulationem vicini, (45) or the pursuer argues that for the defender to oppose a proposed operation is to act in aemulationem vicini. Such cases confirm that the existence of the doctrine was uncontentious, but they do little to assist the understanding of its scope. In the few cases where malice is disputed, there is scarcely any more analysis, although there is suggestion that malice might extend to personal avarice as well as spite towards one's neighbour.(46) The indications are, therefore, that the doctrine had not been 'fully related or systematised' in the Institutional writers or in the contemporaneous case-law, but that is perhaps not so surprising. Although the doctrine may have existed in the jurisprudence and doctrine of the Civil Law systems of the eighteenth century, one could hardly call it systematised there at that time,(47) and indeed in France it has to this day not been codified. Even in the Civil Law systems where it has now been translated to modern codified provisions, these are typically so bland as to be meaningless without reference to case-law. Indeed, moving forward to the period preceding Mayor of Bradford, the Scots cases indicate only a marginal role for malice, apart from in procedural applications - the malicious use of diligence, wrongous arrestment upon the dependence of a court action, and malicious prosecution - where malice is approached rather differently. While aemulatio vicini was pled relatively frequently during that period, such pleadings were seldom successful. One example demonstrating its

acceptance in the field of neighbour law is found in Campbell v Muir, where the court held that fishing in such a way as to obstruct the fishing of an immediate neighbour could be actionable as aemulatio vicini.9 However, in Murdoch v Wallace, for example, in which a neighbour had objected to a proprietor -or his tenant - diverting water from a stream the existence of the aemulatio vicini rule was conceded, but Lord Justice Clerk moncreiff suggested that as long as a proprietor is carrying out operations on his own land, 'substantial damage to the neighbour must be made out before the law will interfere. Beyond neighbour law, il the areas inhabited by abuse of rights in other jurisdictions, there is little indication of a flourishing doctrine. For example, in Craig v Millar, - a dispute between a tenant who operated a lodging house and his landlord who set up a rival lodging house next door, the tenant brought an action against the landlord on the grounds that he was acting in violation of the good faith of the contract. Although abuse might have been identified in a Civilian jurisdiction, the Scots court took strong l, against recognising any restraint inconsistent with the free exercise of proprietary rights. In other words, while Lord Watson's observations in Bradford v Pickle clearly underplayed the significance of the doctrine, one cannot take serious issue with his reference to aemulatio vicini in the passage in Mr. Bell's Principles(sect. 966), which is expressed in very general terms, and is calculated to mislead unless it is read in the light of the decisions upon which it is founded. Aemulatio vicini, while not to be discounted, was a marginal doctrine, and the complex balancing of interests required for this private law form of proportionality wer highly dependent on context. This is of the very nature of a doctrine addressing abuse of rights. Indeed Bells assessment approximates to the observations which the English comparatist Gutteridge was to make of abuse of rights in the Civil law a decade or two later It is considered to be undesirable to specify [the rules] with precision for fear lest they should come to be recognised as embody ing a principle of genera application. The concept of abuse is thus purposely left vague, and the judges are trus ted to apply it only when the circums tances are such as to show that a right is being employed deliberately with a disregard for the interests of other persons ( ile the status of aemlatio vicini remained uncertain for several ecades, it is now accepted by Scots lawyers that Lord Watsons denial of the doctrine was far too widely stated, and this qualification on a landowner's rights is clearly recognised. 52 Aemulatio vicini was restored to the textbooks a few years after the Smith inaugural lecture

acceptance in the field of neighbour law is found in Campbell v Muir, (48) where the court held that fishing in such a way as to obstruct the fishing of an immediate neighbour could be actionable as aemulatio vicini. (49) However, in Murdoch v Wallace, (50) for example, in which a neighbour had objected to a proprietor - or his tenant - diverting water from a stream, the existence of the aemulatio vicini rule was conceded, but Lord Justice Clerk Moncreiff suggested that as long as a proprietor is carrying out operations on his own land, 'substantial damage' to the neighbour must be made out before the law will interfere.(51) Beyond neighbour law, in the areas inhabited by abuse of rights in other jurisdictions, there is little indication of a flourishing doctrine. For example, in Craig v Millar, (52) a dispute between a tenant who operated a lodging house and his landlord who set up a rival lodging house next door, the tenant brought an action against the landlord on the grounds that he was acting in violation of the good faith of the contract. Although abuse might have been identified in a Civilian jurisdiction, the Scots court took strongly against recognising any restraint 'inconsistent with the free exercise of proprietary rights'.(53) In other words, while Lord Watson's observations in Bradford v Pickles clearly underplayed the significance of the doctrine, one cannot take serious issue with his reference to aemulatio vicini in the 'passage in Mr. Bell's Principles (sect. 966), which is expressed in very general terms, and is calculated to mislead unless it is read in the light of the decisions upon which it is founded'.(54) Aemulatio vicini, while not to be discounted, was a marginal doctrine, and the complex balancing of interests required for this private law form of proportionality were highly dependent on context. This is of the very nature of a doctrine addressing abuse of rights. Indeed Bell's assessment approximates to the observations which the English comparatist Gutteridge was to make of abuse of rights in the Civil Law a decade or two later: It is considered to be undesirable to specify [the rules] with precision for fear lest they should come to be recognised as embodying a principle of general application. The concept of abuse is thus purposely left vague, and the judges are trusted to apply it only when the circumstances are such as to show that a right is being employed deliberately with a disregard for the interests of other persons.(55) While the status of aemulatio vicini remained uncertain for several decades, it is now accepted by Scots lawyers that Lord Watson's denial of the doctrine was 'far too widely stated',(56) and this qualification on a landowner's rights is clearly recognised.(57) Aemulatio vicini was restored to the textbooks a few years after the Smith inaugural lecture

by the 1967 case of More v boyle, in which a case based on aemulatio vicini was held to be relevant. This is admit tedly only a sheriff (local) court case, but the judgment by Sheriff Mcdonald is persuasively reasoned. At the same time, aemulatio vicini is at best a marginal doctrine, and in the years since More v Boyle there has been no case in hich malice was in fact decisive as an independent basis of action in a neighbourhood dispute or indeed in any other context. 593 5. A false god for English law? Implicit in T B Smiths formulation quoted in the opening paragraph i that the rule in Mayor of Bradford is a false god to the Scots but native to the Common Law tradition. At first sight a doctrine of abuse of rights would seem inimical to the Common Law, whose history, in the words of Michael Taggart, has been that of the remedial tail wagging the substantive dog, and whose primary focus is remedies rather than the content of rights. Another scholar, writing at around the same time contrasted Scots law with English law by asserting that English law has never penalised an act in aemulationem vicini, using Mayor of Bradford s the sole authority for this statement. In fact, the Common Law ition is not so clear-cut The default rule that owners can generally do as they please with their property is after all shared by both Common and Civil Law, and the dicta often taken from Mayor of Bradford to this effect find a direct equivalent in article 544 of the Code civil. But that rule cannot be absolute. The concern of neighbourhood law in all jurisdictions is to balance interests of neighbouring proprietors. The issue here is whether mechanisms used to restrict the ambit of this rule, and the degree to which this is achieved, are in some way distinctive to either Common or Civil law it is interesting to note that Bankton, writing in the mid-eighteenth century in his Observations on the Law Of England appended to the books of his Institute, commented on English law to the effect that if an ancient watercourse goes to one s mill or house for his use, his neighbour cannot divert it, tho upon his own ground, from taking the former course and if he does, action upon the case will lie at the suit of the owner of such mill or house, this being to his damage. In fact, consideration of classical Roman law played a prominent role in Mayor of Bradford. There was extensive discussion of two earlier English cases on the abstraction of water, Chasemore v Richards and

by the 1967 case of More v Boyle, (58) in which a case based on aemulatio vicini was held to be relevant. This is admittedly only a sheriff (local) court case, but the judgment by Sheriff Mcdonald is persuasively reasoned. At the same time, aemulatio vicini is at best a marginal doctrine, and in the years since More v Boyle there has been no case in which malice was in fact decisive as an independent basis of action in a neighbourhood dispute or indeed in any other context.(59) 5. A false god for English law? Implicit in T B Smith's formulation quoted in the opening paragraph is that the rule in Mayor of Bradford is a false god to the Scots but native to the Common Law tradition. At first sight a doctrine of abuse of rights would seem inimical to the Common Law, whose history, in the words of Michael Taggart, has been that 'of the remedial tail wagging the substantive dog',(60) and whose primary focus is remedies rather than the content of rights. Another scholar, writing at around the same time, contrasted Scots law with English law by asserting that 'English law has never penalised an act in aemulationem vicini', using Mayor of Bradford as the sole authority for this statement.(61) In fact, the Common Law position is not so clear-cut. The 'default' rule that owners can generally do as they please with their property is after all shared by both Common and Civil Law, and the dicta often taken from Mayor of Bradford to this effect find a direct equivalent in Article 544 of the Code civil. But that rule cannot be absolute. The concern of neighbourhood law in all jurisdictions is to balance the interests of neighbouring proprietors. The issue here is whether the mechanisms used to restrict the ambit of this rule, and the degree to which this is achieved, are in some way distinctive to either Common or Civil Law. It is interesting to note that Bankton, writing in the mid-eighteenth century in his 'Observations on the Law Of England' appended to the books of his Institute, commented on English law to the effect that 'if an ancient watercourse goes to one's mill or house for his use, his neighbour cannot divert it, tho' upon his own ground, from taking the former course; and if he does, action upon the case will lie at the suit of the owner of such mill or house, this being to his damage'.(62) In fact, consideration of classical Roman law played a prominent role in Mayor of Bradford. There was extensive discussion of two earlier English cases on the abstraction of water, Chasemore v Richards (63) and

Acton v Blundell, and in all three cases the same passage from the Digest was discussed, namely the passage attributed to Marcellus to the effect that no action, not even the action for fraud can be brought against a person who, while digging on his own land, diverts his neighbour s water supply. And of course the latter ought not to have even the action for fraud, assuming that the other person acted not with the intention o harming his neighbour, but with that of improving his own field '165) Although this passage clearly indicates that when there is no malice there is no action, the question left unanswered is whether there is an action when the water-diverter does act maliciously. In these earlier cases there was no malice, and so the issue did not come to the fore. In acton v Blundell, Tindal cj prefaced discussion of the Digest sources with remarks to the effect that Roman Law forms no rule binding in itself upon the subjects of these realms; but in deciding a case upon principle where no direct authority can be cited from our books, it affords not small evidence of the soundness of the conclusion at which we have arrived. And in Chasemore v Richards, Lord Wensleydale alluded to the Scots aemulatio vicini doctrine, suggesting not so much that there was a fundamental difference in principle, but rather that the issue was handled differently. English law did not need aemulatio vicini because in recognising the principle of sic utere tuo ut alienum non laedas, its reasonable user principle in nuisance achieved very much the same purpose.皿 In Mayor of Bradford, there are certain dicta suggesting aloofness from Civilian authority, but generally speaking, the dicta in these cases suggest not that the roman law was irrelevant, but rather that with regard to this particular passage, the scope of the malice proviso was too uncertain to be followed. Andrew Lewis has written of the earlier case of Acton v Blundell that, while it shows a definite distancing of roman from English solutions, it also illustrates the extent to which Roman law furnished a model for the comprehension of the case-law in the early modern period. b9 Mayor of Bradford illustrates not the absence of Roman law influence in English law, but rather the different forces at work in shaping that influence-and also English laws relative remoteness from the ius commune tradition which had glossed and developed the Classical Roman law sources into the aemulatio vicini doctrine. (It should also be conceded, however, that in South Africa, where the place of the Roman-Dutch sources is relatively secure in this context, the same passage from the Digest(D 39. 3. 1. 12) has not always been interpreted unanimously as supporting malice as an independent basis of action. Thus the decision in Mayor of Bradford may indicate the importance attached to individual autonomy in the social and economic order of late

Acton v Blundell, (64) and in all three cases the same passage from the Digest was discussed, namely the passage attributed to Marcellus to the effect that 'no action, not even the action for fraud, can be brought against a person who, while digging on his own land, diverts his neighbour's water supply. And of course the latter ought not to have even the action for fraud, assuming that the other person acted not with the intention of harming his neighbour, but with that of improving his own field.'(65) Although this passage clearly indicates that when there is no malice there is no action, the question left unanswered is whether there is an action when the water-diverter does act maliciously. In these earlier cases there was no malice, and so the issue did not come to the fore. In Acton v Blundell, Tindal CJ prefaced discussion of the Digest sources with remarks to the effect that 'Roman Law forms no rule binding in itself upon the subjects of these realms; but in deciding a case upon principle, where no direct authority can be cited from our books, it affords not small evidence of the soundness of the conclusion at which we have arrived'.(66) And in Chasemore v Richards, Lord Wensleydale alluded to the Scots aemulatio vicini doctrine, suggesting not so much that there was a fundamental difference in principle, but rather that the issue was handled differently. English law did not need aemulatio vicini because, in recognising the principle of sic utere tuo ut alienum non laedas, its reasonable user principle in nuisance achieved very much the same purpose. (67) In Mayor of Bradford, there are certain dicta suggesting aloofness from Civilian authority,(68) but generally speaking, the dicta in these cases suggest not that the Roman law was irrelevant, but rather that with regard to this particular passage, the scope of the malice proviso was too uncertain to be followed. Andrew Lewis has written of the earlier case of Acton v Blundell that, while it shows a definite distancing of Roman from English solutions, it also illustrates 'the extent to which Roman law furnished a model for the comprehension of the case-law in the early modern period'.(69) Mayor of Bradford illustrates not the absence of Roman law influence in English law, but rather the different forces at work in shaping that influence - and also English law's relative remoteness from the ius commune tradition which had glossed and developed the Classical Roman law sources into the aemulatio vicini doctrine. (It should also be conceded, however, that in South Africa, where the place of the Roman-Dutch sources is relatively secure in this context, the same passage from the Digest (D 39.3.1.12) has not always been interpreted unanimously as supporting malice as an independent basis of action.(70)) Thus the decision in Mayor of Bradford may indicate the importance attached to individual autonomy in the social and economic order of late

Victorian England, but it is not a straightforward consequence of Common Law/Civil Law difference 6. Mixed jurisdictions A further recommendation made by Smith was that, od, t it was accepted that the denial of aemulatio vicini was a false the mixed jurisdictions could advance towards a purer doctrine by learning from each other -a strategy which has certainly proved profitable in other areas it although the authorities in mixed jurisdictions beyond Scotland tend to support the existence of the doctrine, the uncertaint of its scope and the importance of local conditions mean that it is not immediately apparent how collaborative work on abuse of rights can produce a purer doctrine. While false gods may have been rejected elsewhere, the relatively humble hearth gods found in their place are not likely to inspire. In Quebec, the doctrine of abuse of rights is secure and anchored in provisions in the new Quebec Civil Code, which makes provision for penalising abuse of rights in Article 7. The doctrine is used as a source to innovate into new areas of law well beyond neighbour law- for example it has been used extensively to temper contractual rights in recent case-law. But it has drawn strength primarily from links to French scholarship and it is therefore too remote a model of development for the other mixed jurisdictions. In Louisiana, abuse of rights has not been codified, but perhaps because it exists against the background of a codified system, the doctrine is broader in its range than aemulatio vicini in modern Scotland. While it is prevalent in the context of ownership rights, there is in principle no barrier to its extension to other areas. The concept of malice has been deve loped in the case- law to encompass four alternative criteria (1)the right has been exercised for the predominant motive of causing harm;(2) there is no serious or legitimate interest for exercising the right;(3)the exercise of the right is against moral values, good faith, or elementary fairness; and (4)the right is being exercised for a purpose other than that for which it was originally conferred. 2 Despite this broad conceptual basis, abuse of rights is a doctrine which is constantl pled and rarely applied. It is as a civilian concept which is applied only in limited circumstances because its application renders unenforceable one's otherwise judicially protected rights. It is, for example, recognised as a defence against eviction, yet this defence more

Victorian England,(71) but it is not a straightforward consequence of Common Law/Civil Law difference. 6. Mixed jurisdictions A further recommendation made by Smith was that, once it was accepted that the denial of aemulatio vicini was a false god, the mixed jurisdictions could advance towards a purer doctrine by learning from each other - a strategy which has certainly proved profitable in other areas. (72) But although the authorities in mixed jurisdictions beyond Scotland tend to support the existence of the doctrine, the uncertainty of its scope and the importance of local conditions mean that it is not immediately apparent how collaborative work on abuse of rights can produce a purer doctrine. While false gods may have been rejected elsewhere, the relatively humble hearth gods found in their place are not likely to inspire. In Quebec, the doctrine of abuse of rights is secure and anchored in provisions in the new Quebec Civil Code, which makes provision for penalising abuse of rights in Article 7. The doctrine is used as a source to innovate into new areas of law well beyond neighbour law - for example, it has been used extensively to temper contractual rights in recent case-law.(73) But it has drawn strength primarily from links to French scholarship and it is therefore too remote a model of development for the other mixed jurisdictions. In Louisiana, abuse of rights has not been codified, but perhaps because it exists against the background of a codified system, the doctrine is broader in its range than aemulatio vicini in modern Scotland. While it is prevalent in the context of ownership rights, there is in principle no barrier to its extension to other areas.(74) The concept of malice has been developed in the case- law to encompass four alternative criteria: (1) the right has been exercised for the predominant motive of causing harm; (2) there is no serious or legitimate interest for exercising the right; (3) the exercise of the right is against moral values, good faith, or elementary fairness; and (4) the right is being exercised for a purpose other than that for which it was originally conferred.(75) Despite this broad conceptual basis, abuse of rights is a doctrine which is constantly pled and rarely applied. It is as a 'civilian concept which is applied only in limited circumstances because its application renders unenforceable one's otherwise judicially protected rights'.(76) It is, for example, recognised as a defence against eviction, yet this defence more

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法学电子教案合集（参考资料）_滥用权力所涉及的法律原则