Dot Reid

Thomas Aquinas and Viscount Stair: the influence of scholastic moral theology on Stair's account of restitution and recompense

This article examines the impact of scholastic moral theology on aspects of Stairs Institutions of the Laws of Scotland. It is argued that both Stairs general concept of justice and his account of the ‘obediential’ obligations of restitution and recompense were influenced by Aristotelian philosophy and Thomist moral theology. The complex interaction in Stairs thinking of Presbyterian religion, scholastic philosophy and a commitment to the rational natural law are sketched in order to shed light on the historical and cultural context within which he wrote. The result is a more complex picture of the influences which informed the writing of the Institutions.

From the Cradle to the Grave: Politics, Families and Inheritance Law

Property is political. The extent to which a society restricts or encourages freedom of ownership and the accumulation of wealth reflects the values of that society, whether they spring from a Marxist ideology at one end of the political spectrum or from a commitment to liberal individualism and the operation of a free market at the other.1 Property ownership is the foundation stone of a capitalist economy2 and the spread of home ownership a core philosophy of all modern political parties. The extent to which the law should interfere with individual choice in relation to family behaviour is an issue which elicits a range of views across the political spectrum, closely related to preference for “big” or “small” government and sympathy (or lack of it) for a degree of social engineering. Modern British governments tread warily in this territory, reluctant to create controversy or to risk accusations of being a “nanny” state. But none has completely eschewed policy initiatives which affect the institution of ...

The Doctrine of Presumptive Fraud in Scots Law

This article examines the definition and scope of fraud in Scots law, with reference to its historical roots. It is argued that fraud encompassed a far wider range of behaviour than Erskines description of it as ‘a machination or contrivance to deceive’, principally by employing the doctrine of presumptive fraud to deliver substantive justice. Although most commentators acknowledge that fraud was sometimes presumed in early Scots law, there is no detailed treatment of the scope of presumptive fraud or the circumstances in which it was used by the courts to impose liability. A detailed study of relevant case law allows for categorization of the various factors which were relevant to invoking the doctrine. It is also suggested that the conceptual basis of presumptive fraud was inequality, thus embodying the substantive outworking of the Aristotelian view of justice as equality.