私法的宪法化.doc

THE CONSTITUTIONALISATION OF PRIVATE LAW: Scotland The Honourable Lord Reed(1) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. I suspect that most students of private law in Scotland would find the title above rather difficult to understand. The reaction of some might be to reflect that Scotland does not have any constitution, in the sense in which that expression is used in other countries: in other words, a legal document with some privileged status, guaranteeing fundamental rights. Others might react with the thought that constitutional law and private law are quite distinct subjects: when I was an undergraduate at Edinburgh University, for example, they were taught by separate departments, with what seemed to me to be different traditions and different habits of thought. Constitutional law, after all, was regarded by some as a rather soft-edged subject, concerned to a considerable extent with conventions, traditions and practices which did not constitute law in the same sense as the black letter subjects taught under the aegis of private law. Students I think also tended to regard constitutional law as something that was unlikely to be important to them after they left the university, unless they happened to enter the Civil Service. The position has, however, changed over the past twenty-five years, and it makes sense now to speak of a constitutionalisation of private law in this country, although this is a proce This process seems to me to have been driven by two main engines, the European Community and the Council of Europe. But it can be related to wider tendencies. Comparative law has become increasingly influential in o