Michael Upton: Scots law in 3000 AD - A Retrospective

Michael Upton

Ladies and gentlemen, it is my privilege to report on the archaeological excavations at Àidīngbǎo (Edinburgh of the ancients) on north-east coast of the island of Yingguo. We have been excavating preserved documents from a thousand-year-old law library. They were buried by ash-falls from the great eruption of the Icelandic volcano Hekla in 2020 and wonderfully preserved beneath the tephra as an extraordinary time-capsule - yielding intriguing insights into the laws of Sūgélán (‘Scotland’ as it was then known) a millennium ago. Tantalisingly, they are from immediately before the onset of the Great Digital Void – the period in which humanity’s lamentable adoption of electronic documentation caused the massive Dark Age in the historical record, which so bedevils scholarship of the succeeding centuries.

First, a word of caution. It is often difficult to enter into the minds of people distant in space or time. The practices of ancient, primitive tribes may sometimes appear outlandishly incredible. But I stake my professional reputation on the veracity of what you will hear. Please do not scoff or titter, for it includes:

• A habit of conducting court battles between imaginary beings
• A society preserved from total anarchy only by constant production of indigestible volumes of new laws
• Yet absolute personal truthfulness universally honoured throughout society
• Strange practices, such as creditors denied payment of debts, while public servants simultaneously punished the debtors
• The ubiquitous yet utterly unacknowledged influence of German Law
• A dangerously naive willingness to be guided by case-law, and
• A law code structured simply as a complete jumble of measures - in purely chronological order.

1. Imaginary litigants

We are all familiar with the starting-points of law being Persons, Things and Actions. It is tempting to treat it as axiomatic - what, after all, is law at all, if not the regulation of relations between people?

The 21st century saw things differently. We have deciphered thousands of reports of court-room disputes in which one side or the other - and often both - did not exist at all. Earnest and sober lawyers came into court, claiming to represent entirely fantastical ‘parties’ - although all concerned knew them to be fictional. The judges, far from questioning these charades, would then proceed to adjudicate, as if in all seriousness, on the supposed disagreements of the imaginary protagonists, called ‘companies’, ‘authorities’ and such-like.

I see some raised eyebrows in the audience, but the motto of the legal-cultural historian must always be autres temps, autres mœurs.

2. A legislative flood

Archaic although this remarkable legal system was, it did not stagnate. The number of new laws made annually almost beggars belief. These went by such quaint names as ‘Acts of Parliament’, ‘Acts of the Scottish Parliament’, ‘U.K. statutory instruments’, ‘Scottish statutory instruments’, ‘Council regulations’ and ‘Commission regulations’. The rate of increase of the production of law was almost exponential. For instance, from the 1940s to the first two decades of the 21st century, this acceleration works out at almost a third more new laws in each succeeding decade. Ultimately, on the brink of the Digital Void, over 40,000 pages of new laws were published annually.

Sociologically, this plainly unsustainable activity demands explanation. Theories are various. Some cynically suggest corruption of law-makers by legal publishers. More seriously, my most esteemed colleague Dr. Huāngmiù believes these people actually thought that each and every single act of each and every public official should always have a specific ‘legal basis’ - and, moreover, that every single commercial and social activity without fail should always be ‘regulated’ – that such ideas were actually held to be desirable and achievable goals. But, with all respect to my learned colleague, however long ago they lived, these were educated and intelligent people, and it is simply untenable to attribute to them such outlandish ideas.

No, the volume of legislation was so grossly impractical by the standards of any peaceful society, that it can only have been driven by very real and pressing need. In other words, this must have been a society which, beneath a superficial veneer, was known to its rulers to be intrinsically rebellious – perpetually verging on anarchy – chaos kept at bay only by the iron discipline of an ever-expanding web of quasi-totalitarian rules.

3. Absence of perjury

But like the Scottish Highlander of romantic legend, these rebellious and potentially violent folk had a strictest code of personal ethics. They may have bridled at the bonds of society and been proudly jealous of individual independence, but as with other wild tribes, they had a strict code of honour. To the keen-eyed scholar this is revealed as much by what we do not find as by what we do. Consider just this: in c. 30,000 Scottish court judgments over 50 years (1969-2019) we found only five records of convictions for perjury. It is idle to suggest that lying to a judge would not have been treated extremely seriously, in such an intensively regulated society. The only credible explanation is that the Scots were a people with a sincerely reverential regard for truthfulness on all occasions, no matter what was at stake.

To read Professor Yǔyàn’s full lecture, visit the Scottish Legal News website