大学 考研 笔记 教案 法律与语言苏格兰历史上遗留的记号.docx

1、大学 考研 笔记 教案 法律与语言苏格兰历史上遗留的记号Laws and Languages: Some Historical Notes from ScotlandHector L. MacQueenReaders are reminded that this work is protected by copyright. While they are free to use theideas expressed in it, they may not copy, distribute or publish the work or part of it, in anyform, printe

2、d, electronic or otherwise, except for reasonable quoting, clearly indicating thesource. Readers are permitted to make copies, electronically or printed, for personal andclassroom use.I would like to begin by thanking the Ius Commune Research School for a generous invitation to my Scottish colleague

3、s and me to attend this meeting in Utrecht. The opportunity to join you on this occasion is an extremely welcome one, and I hope that it may be a basis upon which future co-operation and collaboration between us will grow. So far as the Scots are concerned, this is a further renewal of the links tha

4、t have long bound our country to the Low Countries in matters of law. It is well known, I think, that these links were probably at their strongest in the seventeenth and early eighteenth centuries, when generations of Scottish students made their way to the law schools of Leiden and Utrecht, leading

5、 to a major Roman-Dutch influence on the development of Scots law in that period. But such links do in fact have a longer history still; when the University of Louvain was founded in 1425, Scots were amongst its earliest students and their ranks include a number of figures which were to play a major

6、 role in Scottish law and government in the fifteenth century. Going still further back into the Middle Ages, we can find extensive settlement from Flanders occurring in twelfth- and thirteenth-century Scotland: much of it mercantile in nature and so extremely important in east-coast Scottish towns

7、such as Berwick, Dundee and Aberdeen, but also including a significant feudal or military dimension in areas such as Clydesdale in the south and Moray and Garioch in the north-east. This explains why to this day Fleming remains a common Scottish surname, although it does not explain a fourteenth-cen

8、tury charter of Thomas earl of Mar in favour of his faithful and beloved clerk John of Mar, canon of Aberdeen, giving him lands in Garioch with all its rightful customs and just pertinents etc, together with lege Fleminga which is called “Fleming lauch”. This suggests that as late as the mid-fourtee

9、nth century there still survived in north-east Scotland a community with sufficiently distinctive local traits or customs to be identified as Flemish. At present, however, there seems no way to tell what these traits or customs may have been, or what they may have contributed to the development of S

10、cots law. However, some traces of Low Country links may have been left in the Scots language, words such as golf, scone, croon (sing softly), dowp (buttocks), pinkie (little finger), redd (tidy up), mutch (womans cap), loun (rogue, lad), callant (lad) and bucht (sheep-pen) apparently having been bor

11、rowed from Dutch at different times before 1600. It was thought about these medieval matters and the connections between the Low Countries and Scotland in the development of the ius commune, old and new, that first provided me with the theme I wish to develop a little today. The thoughts were furthe

12、r reinforced a few weeks ago in the appropriate setting of Maastricht when I was a member of a panel of about ten persons, six of whom were Germans, three Dutch and one (me) a Scot; yet our language for the purposes of the panel was English, an issue about which I was reproached - quite rightly - la

13、ter in the conference when discussing the meaning of the word principles. That in turn brought to mind a debate that has occasionally surfaced in the proceedings of the Commission on European Contract Law, where the language is generally English but French is also officially allowed. How far is a co

14、mmon language a prerequisite of a common law? If so, how far does the choice of language then dictate the substantive outcome of the rules to be the common law? Scotland may not appear to be the most obvious place in which to start such a discussion; the rich linguistic complexities of the Low Count

15、ries, and the intense political and legal debates to which they give rise, might seem much more likely to prove fertile territory for exploration. Yet Scotland is not so monoglot as might be thought from a distance. Certainly English is the dominant language of public and private discourse, but the

16、Scots vernacular, springing ultimately from the Old or Middle English of the Anglo-Saxons who were penetrating south-east Scotland from the seventh century on, has a good claim to be something more than a variant or dialect of standard modern English, in terms of both vocabulary and syntax, even bef

17、ore one begins to take its regional differences into account. Then there is Gaelic, the language of the Highlands and Islands, now mostly confined to the Western Isles as a first tongue but also enjoying something of a revival in cities such as Edinburgh and Glasgow (there is a Gaelic-speaking playg

18、roup near where I live). Finally, there are the diverse languages of the immigrant communities, in particular Urdu. Sometimes the languages, or their supporters, come into political conflict reminiscent of the late medieval Flyting of Dunbar and Kennedie (a lively exchange of linguistic abuse across

19、 the Scots/Gaelic divide). For example, Scottish Nationalist Party proposals for a Gaelic Language Bill, imposing upon public bodies in Scotland a duty to prepare, publish and implement a Gaelic Language Plan, were followed recently by complaints from a Scottish Parliament cross-party group on the S

20、cots language, that there are people, including MSPs, who speak very disparagingly about both Scots and Gaelic, but Scots in particular. Gaelic (but not Scots as distinct from standard English) is one of the official languages of the Scottish Parliament, and a debate on a Programme of Action for Sco

21、ts and Gaelic in the European Year of Languages was conducted with some contributions (including the Ministerial response) in the latter tongue on 7 September 2000. In December 1993 and again in April 1994 Scottish judges made headlines and generated newspaper correspondence column controversy by th

22、reatening to hold accused persons guilty of contempt of court for using the word aye rather than yes when seeking to answer a question in the affirmative. In particular Sheriff Irvine Smith, who has a well-earned reputation as a legal historian and also as a superb speaker at Burns suppers and other

23、 post-prandial occasions, is reported to have advised one hapless individual that the word ay in Scots means always rather than yes. Rightly or wrongly, it appears that in general the language of Her Majestys courts in Scotland is to be the Queens English. This is borne out by other recent case law:

24、 in 1982 and 1985, for example, accused persons were denied the right to be tried in Gaelic with an interpreter, when each was also able to speak in English. We may note that, exceptionally, the Scottish Land Court must by statute include at least one Gaelic speaker amongst its members. In July 2001

25、 the Sheriff Principal of Grampian, Highland and Islands, inspired by the recent UK ratification of the European Charter for Regional or Minority Languages, laid down that the sheriff courts in Stornoway and Lochmaddy in the Western Isles, and Portree in Skye, would allow party litigants to address

26、the court, or witnesses to give evidence, in Gaelic in civil (but not criminal) proceedings, provided that notice of two weeks was given (to allow for the provision of an interpreter). Sheriffs might, however, veto the right to speak in Gaelic if they considered that otherwise the proper administrat

27、ion of justice would be hampered. Of course there may always be a dash of lawyers Latin (or code mixing, as linguistic discourse would have it) to bring linguistic variety in court proceedings and in legal writing and teaching; although in June 2001 the Appeal Court of the High Court of Justiciary h

28、ad to consider a claim that use of the maxim omnia rite et solemniter acta praesumuntur in proceedings arising from the eleven-times repeated failure of an individual known as Robbie the Pict to pay the toll exigible to cross the Skye Bridge infringed Robbies right to a fair trial under Article 6 of

29、 the European Convention on Human Rights. The court rejected the argument, presented by Robbie in person, that he was entitled to have the proceedings conducted in a language that he could understand, because it was clear from the appellants presentation of his argument that he did fully understand

30、the maxim. We therefore seem rather far in modern practice from the linguistic diversity (or, reverting to the terminology of linguistics, language contact) which, as I shall now argue, characterised the practice of law as it became the common law - or ius commune - of the medieval kingdom of the Sc

31、ots. The development of Scottish common law began in the twelfth century, and from the start its language of record was Latin. The law centred on land, and the charters and other documents which recorded grants and transfers of land were generally in Latin, although over time documents in Scots beca

32、me more common. Only in 1847 did statute provide that henceforth Crown writs would be in English rather than Latin. The brieves or writs with which many forms of process before the medieval courts were commenced were also in Latin, as were the earliest records of the courts themselves. The assizes,

33、statutes and other legislative acts of the twelfth to the fourteenth centuries have all come down to us in Latin, although it needs to be borne in mind that the surviving manuscripts in which they are recorded are all of significantly later date than the material itself and may not therefore reflect absolutely faithfully