The Value of Communication Practices for Comparative Law: Exploring the Relationship Between Scotland and England

Abstract

This article explores the relationship between the Scottish and the English legal traditions through the lens of communication practices. ‘Communication practices’ are conceived of as the multiple ways in which legal traditions interact with one another by a combination of the circulation of legal ideas and the activities of legal actors. The article argues that greater attention should be paid in comparative legal literature to communication practices as they evolve over time and space, being especially mindful of the language used and the labels employed. By exploring different shapes of temporality and space, this article demonstrates the importance of looking beyond both discrete events and moments of transplantation, and the immediate geographical space. It also shows that the focus on language and what is explicitly said, but also on what is not said, generates insights both into the various techniques and practices involved in communication, as well as the factors that play a role. By examining concrete examples of communication involving both judges and legislatures, drawn from across different areas of law and different time periods, this article argues that contrary to the prevailing narrative, communication practices between Scotland and England are much richer and more dynamic than we tend to assume. Ultimately, the article questions the narrative and construction of the Scottish legal tradition, and of mixed legal systems more generally, as systems that primarily adopt ideas from abroad, rather than generating ideas capable of stimulating and shaping developments elsewhere.