ElectronicjournalofcomparatiVeLaw,vol.8.3(october2004),chttp://www.ejcl.org/> As is well known, Scotland, although part of the United Kingdom, has a legal system quite distinct from its larger southern neighbour, England. Nevertheless, from the Treaty of Union in 1707 until 1999 the same Parliament, namely Westminster, was responsible for passing legislation affecting private law both north and south of the border. But legislative time for technical law reform measures was scarce. This changed in 1999. when the devolved Scottish Parliament was established. 4 Private law measures can now be passed in Edinburgh. The first Scottish Executive was committed to abolishing the feudal system. It was seen as an anachronism which was open to abuse by feudal overlords-more of which shortly. Draft Commission. 6 However it was clear to the Commission that feudal abolition could not be carried out in isolation but that title cond ition and tenement law also needed to be overhauled. The way forward was to deal with these matters as related parts of a wider property law reform project and to effect the changes at the same time, on a date to be fixed by Scottish Ministers. That date was duly fixed as 28 November 2004 3. Why did feudalism survive so long in Scotland? To the comparative lawyer, the question of why Scotland retained feudalism for so long is an interesting one. Feudal law permeated through most of Europe in the early Middle Ages. 8Of course, feudalism in its pure form involved far more than land law. The feudal overlord, for example, could require his vassal to go out and wage war on his behalf In relation to the law of property, feudal law collided with Roman law. How could both vassal and superiors(s)be regarded as owner of the same piece of land? The uneasy solution was that of divided ownership(duplex dominium) BytheScotlandAct1998(availableathttp:/www.hmso.gov.ukacts/acts998/19980046.htm).for Maxwell, Edinburgh In effect. the devolved Govemment Scottish Law Commission, Report on the abolition of the Feudal System(Scot Law Com No 168 2000)(availableathttp://www.scotlawcomgovuk) See s wortley and a J M Steven, The Modemisation of Real Burdens and Servitudes: Some Observations on the Title Conditions(Scotland) Bill Consultation Paper(2001)6 Scottish Law and Practice Quarterly 261 See KGCReid, The Abolition of Feudal Tenure in Scotland (2003), LexisNexis UK, Edinburgh, para 1. 1. See also H L Mac Queen, Tears of a Legal Historian: Scottish Feudalism and the lus Commmune'(2003 Juridical review 1 A J van der Walt andd Kleyn, "Duplex Dominium: The History and Significance of the Concept of Div ided Ownership'in D P Visser(ed), Essays on the History of Law (1989), Juta& Co, Cape TownElectronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 2 As is well known, Scotland, although part of the United Kingdom, has a legal system quite distinct from its larger southern neighbour, England. Nevertheless, from the Treaty of Union in 1707 until 1999 the same Parliament, namely Westminster, was responsible for passing legislation affecting private law both north and south of the border. But legislative time for technical law reform measures was scarce. This changed in 1999, when the devolved Scottish Parliament was established.4 Private law measures can now be passed in Edinburgh. The first Scottish Executive5 was committed to abolishing the feudal system. It was seen as an anachronism which was open to abuse by feudal overlords - more of which shortly. Draft legislation was prepared by the body responsible for law reform in Scotland, the Scottish Law Commission.6 However, it was clear to the Commission that feudal abolition could not be carried out in isolation, but that title condition and tenement law also needed to be overhauled.7 The way forward was to deal with these matters as related parts of a wider property law reform project and to effect the changes at the same time, on a date to be fixed by Scottish Ministers. That date was duly fixed as 28 November 2004. 3. Why did feudalism survive so long in Scotland? To the comparative lawyer, the question of why Scotland retained feudalism for so long is an interesting one. Feudal law permeated through most of Europe in the early Middle Ages.8 Of course, feudalism in its pure form involved far more than land law. The feudal overlord, for example, could require his vassal to go out and wage war on his behalf. In relation to the law of property, feudal law collided with Roman law. How could both vassal and superiors(s) be regarded as owner of the same piece of land? The uneasy solution was that of divided ownership (duplex dominium).9 4 By the Scotland Act 1998 (available at http://www.hmso.gov.uk/acts/acts1998/19980046.htm). For discussion, see C M G Himsworth and C R Munro, The Scotland Act 1998 (2nd edn, 2000), W Green/Sweet and Maxwell, Edinburgh. 5 In effect, the devolved Government. 6 Scottish Law Commission, Report on the Abolition of the Feudal System (Scot Law Com No 168, 2000) (available at http://www.scotlawcom.gov.uk). 7 See S Wortley and A J M Steven, ‘The Modernisation of Real Burdens and Servitudes: Some Observations on the Title Conditions (Scotland) Bill Consultation Paper’ (2001) 6 Scottish Law and Practice Quarterly 261. 8 See K G C Reid, The Abolition of Feudal Tenure in Scotland (2003), LexisNexis UK, Edinburgh, para 1.1. See also H L MacQueen, ‘Tears of a Legal Historian: Scottish Feudalism and the Ius Commune’ (2003) Juridical Review 1. 9 A J van der Walt and D G Kleyn, ‘Duplex Dominium: The History and Significance of the Concept of Divided Ownership’ in D P Visser (ed), Essays on the History of Law (1989), Juta & Co, Cape Town