SCOTLAND ASA MIXED JURISDICTION AND THE DEVELOPMENT OF EUROPEAN PRIVATE LAW: Is There Something to Learn from Evolutionary Theory? Jan smits Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and room use Introduction The aim of this contribution is to consider whether there are any lessons to be learnt from the development of mixed jurisd ictions, such as Scots law, for the emergence of a uniform private law for Europe. Or, to put it otherwise: Can mixed jurisd ictions be a model for the future developments within the European Union? This question is, of course, not a new one model, also outside the European context, is even much older. Hector Mac Queen n his w as a It has received more and more interest over the last few years The very idea of Scots law as a Utrecht lus Commune lecture 2 traces the idea back to 1924. when the famous French comparatist Levy Ullmann noted that"Scots law gives us a picture of what will be some day the law of the civilised nations, namely a combination between the Anglo-Saxon and the Continental system'. In the recent debate on the possibilities of attaining a uniform Europea private law, several authors have pointed to the experience Scots law can offer in this respect In drafting sets of principles of European private law, Scots law has already played an important role. 4 This contribution does not focus on the many different reasons why it could be useful to look at Scots law as a model for the development of private law in Europe. I want to focus on the idea of Scots law as being able to make a selection for the best rules of different legal trad itions. After all, the often held belief is not that Scots law is of importance just because Professor of European Private Law, Maastricht University. I have as much as possible reta ined the text of the original lecture held in Edinburgh on 20 June 2003 2 Hector L MacQueen, Scots Law and the Road to the New lus Commune, lus Commune Lectures on European Private Law 1, Maastricht 2000, p 2(also published in EJCL, vol. 4. 4(Decem ber 2000) tp:/www.eiclorg/44/art44-1htmP 3 Cf the overview in Jan Smits, Introduction: Mixed Legal Systems and European Private Law, in: Jan Smits(ed ) The Contribution of Mixed Legal Systems to European Private Law(Antwerp: Intersentia, 2001), pp 1-13 In particular in the case of the PECL(O. Lando H. Beale(eds ) Principles of European Contract Law, Parts I andll(The Hague: Kluwer Law International, 2000) O. Lando, E. Clive, A Prum r Zimmermann(eds ) Principles of European Contract Law, Part Ill (The Hague: Kluwer Law International 2003))and the PETL D.J. Hayton,S.CJ.J Kortmann& H.L. E. Verhagen(eds ) Principles of European Trust Law(The Hague: Kluwer Law International, 1999)1 SCOTLAND AS A MIXED JURISDICTION AND THE DEVELOPMENT OF EUROPEAN PRIVATE LAW: Is There Something to Learn from Evolutionary Theory? Jan Smits1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. 1. Introduction The aim of this contribution is to consider whether there are any lessons to be learnt from the development of mixed jurisdictions, such as Scots law, for the emergence of a uniform private law for Europe. Or, to put it otherwise: Can mixed jurisdictions be a model for the future developments within the European Union? This question is, of course, not a new one. It has received more and more interest over the last few years. The very idea of Scots law as a model, also outside the European context, is even much older. Hector MacQueen in his Utrecht Ius Commune lecture,2 traces the idea back to 1924, when the famous French comparatist Lévy Ullmann noted that ‘Scots law gives us a picture of what will be some day the law of the civilised nations, namely a combination between the Anglo-Saxon and the Continental system’. In the recent debate on the possibilities of attaining a uniform European private law, several authors have pointed to the experience Scots law can offer in this respect.3 In drafting sets of principles of European private law, Scots law has already played an important role.4 This contribution does not focus on the many different reasons why it could be useful to look at Scots law as a model for the development of private law in Europe. I want to focus on the idea of Scots law as being able to make a selection for the best rules of different legal traditions. After all, the often held belief is not that Scots law is of importance just because 1 Professor of European Private Law, Maastricht University. I have as much as possible retained the text of the original lecture held in Edinburgh on 20 June 2003. 2 Hector L. MacQueen, Scots Law and the Road to the New Ius Commune, Ius Commune Lectures on European Private Law 1, Maastricht 2000, p. 2 (also published in EJCL, vol. 4.4 (December 2000), <http://www.ejcl.org/44/art44-1.html>. 3 Cf. the overview in Jan Smits, Introduction: Mixed Legal Systems and European Private Law, in: Jan Smits (ed.), The Contribution of Mixed Legal Systems to European Private Law (Antwerp: Intersentia, 2001), pp. 1-13. 4 In particular in the case of the PECL (O. Lando & H. Beale (eds.), Principles of European Contract Law, Parts I and II (The Hague: Kluwer Law International, 2000); O. Lando, E. Clive, A. Prüm & R. Zimmermann (eds.), Principles of European Contract Law, Part III (The Hague: Kluwer Law International, 2003)) and the PETL (D.J. Hayton, S.C.J.J. Kortmann & H.L.E. Verhagen (eds.), Principles of European Trust Law (The Hague: Kluwer Law International, 1999))