Public law: Judges v Legislators

It wasn't until my jurisprudence class this year that I realized that the criticism of 'activist judges' is not actually as accurate as the term may suggest. At the Supreme Court level, judges tend to be more politicians and fewer jurists, as their decision creates a binding precedent which the lower courts are bound to follow. If the legislature deems the decision wrong, they have the ability to change the law, but the legislature process and multiple interests may make that nearly impossible, as we know.

At the lower level courts, judges, I'll argue, are actually more representative than legislators, as they see regular people every single day. Decisions made in courts directly affect the lives of the individuals and do not require the implementation of the bureaucracy. A judge in a lower court is bound under the law and the arguments set forth by the two sides.

I've been reading a text on piracy from the US Naval War College and there is a great summary on how our founding fathers left a lot of leverage and digression to the lower courts and knew that the supreme court was limited by the executive's willingness or unwillingness to implement a decision - as FDR illustrated, a decision out-with the agreement of the president may lead to packing the court by diluting the majority which ruled against the White House and Congress.

The counter argument is that legislators are more democratically accountable as they are elected by the people they represent, whereas judges are removed from the electoral process. Though in the many American states the Missouri Plan for selecting judges is used, whereby a judge is nominated by a judicial commission, selected by the state’s governor and confirmed by the state senate, then held up for a retention election every few years to ask the people if the judge is performing the duties charged under the constitution and laws of the state.

Prima facie, it is difficult to counter the argument that perhaps judges could be ‘closer’ to the people than legislators. Legislators are elected by their constituents for a prescribed term. Whereas judges are unelected, appointed for life tenure and they do not respond to the people in any direct way. The challenge to a representative democracy is that unelected individuals can overturn the decisions of an elected body, and therefore challenge the will of the people.

Legislators will often not contemplate the constitutionality of a proposed bill, but discuss the political reasoning or popular logic in the arguments debated in the committee rooms and on the floor of the assembly. At the turn of the 21^st Century, many members of the US Congress voted for campaign finance reform even though it was thought to violate the First Amendment of the US Constitution. The Supreme Court was almost set up for political failure as the decision was to (a) uphold the will of Congress and thereby the people or (b) uphold the validity of the US Constitution and the social contract which congress and the people are bound. The Court held the latter and was criticised for crafting ‘bench made law’ and also for ‘judicial activism’ and undermining the people’s elected representatives.

The British Parliament is supreme and therefore can do ‘whatever the hell it wants, whenever it wants’. The British Supreme Court (formerly the Appellate Committee of the House of Lords or simply, the House of Lords), cannot strike down an Act of Parliament for being unconstitutional, as the supremacy of parliament means the legislature and therefore the will of the people is absolute and cannot be undermined by the constitution and the supreme court, both of which are granted authority from parliament. The concept of judicial review is different in the America, as the US Constitution is regarded as ‘higher law’ and all other law is subordinate. Acts of Congress, case law, and regulations would all be subordinate to the US Constitution and therefore classified as ‘normal law’ or ‘ordinary law’. The US Constitution is the supreme law of the land. A constitution usually seeks to define the relationship the institutions of government, the relationship between the individual and the state, and provide limits on the power of the state, along with setting forth the goals and principles of the state, usually found within the preamble.

Judicial review by its nature undermines popular will, as all or part of a statute, passed by the legislature and given the force of law by the executive, can be declared ultra vires by a court, and struck down as unconstitutional. However, popular will in legislative terms is the support of the majority. This means that a minority in civil society may be largely unrepresented.

In Brown v Board of Education of Topeka (1954) 347 US 483, the US Supreme Court overturned their earlier decision of Plessy v Fergusson (1896) 163 US 537, which had upheld the post-Reconstruction (1877) doctrine of ‘separate, but equal’ enshrined in ‘Jim Crow’ laws, such as rules segregating public schools (Cumming v Richmond County Board of Education (1899) 175 US 528) in the American South as being within the ambit of the Constitution. The Court quickly followed the Brown precedent by holding segregation based on race within public spaces to be a violation of the Equal Protection Clause of the 14^th Amendment to the US Constitution. Many US States tried to argue the 14^th Amendment only applied to Federal and not individual state citizenship (the Slaughter-House Cases (1873) 83 US 36). As Brown illustrates, nothing happened for the next fourteen years in regards to segregation, mainly due to a violent backlash from Southern states who claimed the Court was circumventing the democratic authority of the legislature. It was the legislatively crafted Civil Rights Act 1964 which finally brought an end to racial discrimination.

The function of the democratic accountability in the courts is to interpret the constitution in respect of popular opinion of the people. They filter public opinion through their decisions to interpret the constitution in consistency with public opinion. Judges interact with the public on such a regular basis that the knowledge of popular opinion and arguments presented is known and able to be effectuated through the decisions and judgements of the court. This school of thought is embodied by the American Realist movement, which began with US Supreme Court Justice Oliver Wendell Holmes in the early 20^th Century. 

The Offside Goals Rule

The offside goal rule (doctrine of notice) deals with the consequences of fraud and applies to corporeal and incorporeal property which is capable of possessing a real right. The case law in this area stretches back to the 16^th Century (Stirling and White v Drummond [1582] Mor 1689), though attention was not drawn to this rule in law until Rodger (Builders) Ltd v Fawdry 1950 SC 483;Wallace v Simmers 1960 SC 255 and Trade Development Bank v Warriner and Mason 1980 SC 74 along with Optical Express (Gyle) Limited v Marks & Spencer plc 2000 SLT 644; The Advice Centre for Mortgages v McNicoll 2006 SLT 591 and most recently Gibson v Royal Bank of Scotland[2009] CSOH 14.

There is much academic debate as to whether or not the rule is good or bad law; if the former, then should be in the corpus of property and conveying law, or contract law, as the circumstances which give rise to such a rule are usually rooted in the contract. The rule has been given fundamental principal status in Burnett’s Tr v Grainger 2004 SC (HL) 19,^[1]in which Lord Rodger of Earlsferry referred to the offside goals rule in his opening paragraph.

“[T]he offside goals rule provides that a transfer or grant of a real right by A to C will be voidable if (i) A had already undertaken to transfer or grant a right in the same property to B (ii) that prior right was "capable of being made real" (iii) the grant to C was in breach of the prior obligation to B and (iv) C knew of that prior obligation or acquired gratuitously or at a material undervalue.”^[2]

If a party is to dispute another’s title, then they must demonstrate that the acquisition was defective on account of the transferee being in bad faith. “On this basis, the “offside goals” rule allows the reduction of a perfected transfer on proof of bad faith in the form of knowledge, actual or imputed, of the prior entitlement of another party.”^[3]

“If the owner of land agrees to grant a lease, but then sells the land before the tenant has gained a real right, the tenant may seek to invoke the offside goals rule if the new owner knew about the grant of the lease.”^[4]

“One difficulty with the offside goals rule is that a race to the register can only ever be a blind man’s race: one in which neither party knows who else might be running; the race is one against a ghost: the spectre of a trustee in sequestration. But, as I have indicated, as a result of the reforms that followed the Sharp v Thomson and Burnett’s Tr v Grainger saga, providing agents can get their act together within 28 days [(Bankruptcy (Scotland) Act 1985, s 31(1A) and (1B))] of delivery of a disposition from a natural person or other transferor that may be sequestrated, such a race can but rarely arise”, writes Dr Ross Anderson in his 9 June 2010 address to the Royal Faculty of Procurators 2010 Conveyancing Conference in Glasgow, Scotland.^[5]

University of Edinburgh lecturer, Scott Wortley, explains the offside goals rule has been given “detailed consideration by Professor Reid, The law of property in Scotland (1996) paras 695 - 700; Professor Carey Miller and David Irvine, Corporeal Moveables in Scots law (2nd edn, 2005) para 8.31, Ross Anderson in a valuable article "Offside goals before Rodger Builders" 2005 JR 277 (and an updated version in his Assignation (2008) paras 11-04 - 11-31, as well as my own discussion in 2002 JR 291 and in Professor McDonald's Conveyancing Manual (7th edn, 2004) paras 32-51- 32-62.”^[6]

It should be noted in football (soccer) an offside goal is void, whereas in conveyancing and property law an offside goal is voidable.

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^[1]2004 SC (HL) 19 at para 67

^[2]P Webster, ‘Options for the offside goals rule’ [2009] 13 Edin L Rev 524

^[3]DC Miller, ‘Title to moveables: Mr Sharp's Porsche’ [2003] 7 Edin L Rev 221

^[4]GL Gretton & AJM Steven, Property, Trusts and Succession (Tottel Publishing, West Sussex 2009) 263

^[5]R Anderson, ‘The offside goals rule in practice’ Royal Faculty of Procurators 2010 Conveyancing Conference 9 June 2010

^[6]S Wortley, ‘Offside traps - Gibson v Royal Bank of Scotland [2009] CSOH 14’Edinburgh Centre for Commercial law blog <http://www.law.ed.ac.uk/ecclblog/blogentry.aspx?blogentryref=7681> 9 Feb 2009 accessed 26 Apr 2011

Lord Hope of UK Supreme Court addresses the notion of hearing Scottish cases in London

Over two-hundred law students, trainees, solicitors and advocates attended the inaugural annual lecture of the Scottish Young Lawyers’ Association. The keynote speaker was The Right Honourable Baron Hope of Craighead, KT, PC, QC, FRSE. Lord Hope is the Deputy President of the Supreme Court of the United Kingdom of Great Britain and Northern Ireland along with being Chancellor of the University of Strathclyde in Glasgow. Lord Hope is arguably considered the 21th Century most eminent scholars of jurisprudence and is one of only ten individuals to have served on the final session of the Appellate Committee of the House of Lords and the inaugural session of the Supreme Court.

The lords of appeal in ordinary or Law Lords were physically moved from the chambers and halls the Parliament Building at Westminster to the newly created bench at Middlesex Guildhall, which is located between Westminster Abby and the HM Treasury Building. The House of Lords, which is the upper house of the UK’s legislative branch of government, served as the highest court of appeal from 1399 to 2009. The Law Lords used to hear appeals each day in the chamber of the House of Lords. During the Second World War the House of Commons was bombed and the Law Lords moved their hearings to a nearby committee room to escape the noise of the building repairs, constituting themselves as an Appellate Committee for the purpose. In fact, this temporary arrangement proved so successful that it became permanent, and continued until it was abolished and replaced by the Supreme Court on 1st October 2009.

Lord Hope’s speech was called, “Scots law seen from south of the border”, and focused on a comparison between the world when he began law school at the University of Edinburgh in nearly 50 years ago. He emphasised how much has changed, but said to long to go backwards is not the way forward and stressed how much better off students are today with a refined and long educational tenure to join the profession of law.

Lord Hope also mentioned how much technology has changed and how much more of a demand is on the profession for accuracy, efficiency and minimizing errors. His reflection of his career also included a bit of rye humour, as he said, “It was, of course, a different world in 1962. It was not quite the world of silent motion pictures, although many of the films were still in black and white. Sex had not yet been discovered. That did not happen until 1963, according to the poet Philip Larkin. Nor indeed had drugs. For the most part we did what we were told. As students we all wore jackets and ties and, unlike those who followed soon afterwards, we all had short hair cuts, unlike a few years later when Gordon Brown, the former Prime Minister, had hair down to his shoulders.”

The speech went on to address how the Supreme Court dealt with Scottish cases being appealed from Inner House of the Court of Session (unlike England, the Inner House has a right of appeal to the Supreme Court). Lord Hope spoke of the Scottish case, “Sharp v Thomson[1], which was followed a few years later by Burnett’s Tr v Grainger[2]. It was a case about personal insolvency. There the question was whether the house was part of the ‘whole estate’ of the debtor so as to be part of the estate which vested in his trustee in bankruptcy. The House of Lords distinguished Sharp and held that it did: the trustee does indeed take both the house and the money. Centuries of case law made clear which meaning was to be given to phrase ‘the whole estate of the debtor’ used in the Bankruptcy Act. It was made clear that there was no intermediate right between a personal and a real right, and that delivery of the disposition did not give rise to a trust, either actual or constructive, in favour of the buyer. By now the personnel in the House of Lords had changed. I was one of the two Scottish judges on that case, along with Lord Rodger. Lords Hoffmann, Bingham and Hobhouse made up the rest of the panel. Anyone who reads the opinions of Lords Hoffmann and Hobhouse will see that they felt strongly that the case should have been decided the other way. But they did not dissent. Lord Bingham, however, felt strongly that on an issue such as this – where there was genuinely a distinctive point of principle of Scots law – that if the Scottish judges reached a particular decision, it was not for him – unfamiliar with the system – to interfere.”

The final points Lord Hope made concerned the Cadder Case[3], in which the Supreme Court upheld the ECHR against the Scottish procedural rule of being able to interrogate a detainee for up to six hours without legal representation. He could not make too many comments, as there are five cases on appeal to the Supreme Court, which concern clarifying Cadder.

Lord Hope concluded by saying as long as the Scottish courts sent business down to London, then the Constitutional Convention of having two of the twelve justices on the Supreme Court coming down from Scotland and one from Northern Ireland would continue to be upheld. He did mention that if Scotland were to make the Court of Session the highest court in the land, then there would be no need for the convention to be sustained.

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[1] 1997 S.C. (H.L.) 66; 1997 S.L.T. 636; 1997 S.C.L.R. 328; [1998] B.C.C. 115; [1997] 1 B.C.L.C. 603; 1997 G.W.D. 9-364

[2] [2004] UKHL 8; 2004 S.C. (H.L.) 19; 2004 S.L.T. 513; 2004 S.C.L.R. 433; [2004] 11 E.G. 139 (C.S.)

[3] [2010] UKSC 43; [2010] 1 W.L.R. 2601; 2010 S.L.T. 1125; 2010 S.C.L. 1265; 2010 S.C.C.R. 951; [2010] U.K.H.R.R. 1171; (2010) 107(43) L.S.G. 21; (2010) 154(41) S.J.L.B. 30

End of an era - final law school lecture

Lord Advocate v Royal Bank of Scotland 1977 SC 155

Facts: Imperial Hotel (Aberdeen) Ltd barrowed a sum and granted a floating charge to the lender. Financial difficulties struck along with taxes due. The Inland Revenue (The Gov’t), who were owed £4,850 arrested Imperial Hotel’s bank accounts on 23 May 1974. As the financial position worsened, the lender appointed a receiver (Frank Mycroft) on 17 July 1974. Once the company went into receivership, the floating charge attached to all of Imperial Hotel’s assets, including the bank account.

Question for the Court: Who had priority to the bank account? Inland Revenue, who had arrested the accounts two months prior, or the receiver, Mr Mycroft? Did the floating charge trump the arrestment, vís-a-vís?

Held, the Companies (Floating Charges and Receivers)(Scotland) Act 1972 provided a ranking mechanism for priority as being that the receiver prevailed over the creditors unless they had “effectually executed diligence”. Arrestment is a form of diligence, however the court held it was only “effectually executed” if the arrestment had been followed by a furthcoming, prior to the floating charge attaching. Since this had not occurred, the First Division held the receiver prevailed over the arrester.

Analysis: This case is almost universally condemned by academic commentators. The reason why this case is criticize is illustrated by the following example: (i) a company’s bank account is arrested; (ii) the assignation of the company’s bank account to a third party is intimated to the bank; (iii) a receiver is called in and the floating charge granted by the company attaches to the assets; and (iv) the arresting creditor (arrester) seeks furthcoming. The order of ranking in this case is irresolvable, as the arrester takes priority over the third party. The third party takes priority over the receiver. As a result of Lord Advocate v Royal Bank of Scotland 1977, the receiver takes priority over the arrester. The arrester takes priority over the third party who takes priority over the receiver. This conundrum is referred to as a ‘circle of priorities’. The Bankruptcy and Diligence etc (Scotland) Act 2007, which amends the Debtors (Scotland) Act 1987 by adding s 73J, which provides that arrested funds can be released on certain conditions without an action of furthcoming. No judicial consideration has been rendered on this point yet.

The feudal system - in brief

Scotland is quite intriguing, as the feudal system was finally dissolved on 28 November 2004, which actually didn't amount to a major change as the case law and statutes had slowly been chipping away at the system since the 1740s.

An annual payment was due to the landlord along with the vassal being obligated to perform certain duties in law. These obligations were called "reddendo" and varied depending on the type of tenure. There were five main types. My favourite tenure was the "Mortification", where the vassal was the church and the service due was prayer (especially for the Superior's soul). It is not surprising this tenure was done away with during the reformation.

Feufarm was the tenure dissolved in 2004, as it was the one that remained. Originally I suppose the reddendo was paid in the form of goods from the farm. Though the reddendo (which is a general term) known as feuduty for feufarm, was paid twice a year on Whitsunday and Martinmas. The feuduty had to be converted into money and paid to the landlord. The concept was the Crown owned all the lands, then the Crown vassals (eg Dukes, Marquesses, Earl, Viscount and Baron) had sub-sub vassals and so on who all paid feuduties to the next superior above them. Prior to loans, this was the best way for people to "own" property, as they would pay a fraction of the value but would be obligated to make the two annual payments.

The cool thing about studying in a differnt country and jurisdiction is being able to make comparisons on what I know about Colorado property law and then comparing that to Scotland and the England.

Is it more important to ask whether one should obey an unjust law than whether it is a law?

Theories of law which place just and unjust law at its centre tend to be in the arena known as ‘natural law’ and are promulgated by such early scholars as St Thomas Aquinas, Thomas Hobbs and John Locke, along with Jean-Jacques Rousseau, Edmund Burke and Thomas Paine. They took the view that there is a natural order to life, whether divine or innate, and as such we should structure our society accordingly. Reason was deemed to be one of the natural elements which distinctively make us human. The modern reincarnation of natural law theory is exhibited in John Rawls. The basic premise of the theory is how we might consent to be part of a political society. The reasoned answer was that there needed to be a bound by a social contract. This contract would serve to move the natural world into a civilized world, whereby some rights are delegated to the state and others are reserved to the people. The goal of this transformation was to overcome the state of nature, which was viewed by Hobbs as being “The war of all against all” and a life that is “solitary, poor, nasty, brutish and short.” Locke and Rousseau tended to have a more optimistic view of the natural state by seeking to preserve and protect what is significantly good. Today natural law is viewed from three major perspectives: (i) the John Finnis approach which says that certain features of our natural world should be reflected in the substantive law, (ii) the Lon Fuller approach which incorporates nature into the form and procedure of law and (iii) Ronald Dworkin who places natural theory into the interpretation of Law.

An unjust law, meaning a law which is contrary to the natural order, should not be regarded as a valid law. To quote Lon Fuller, “Law is the enterprise of subjecting human conduct to the governance of rule.” Somehow we have to ordinate our conduct to these rules, as our everyday human behaviour is subjected to the governance of rules. For Fuller, to escape the shadow of totalitarianism, then law has to achieve an “inner morality”. This still does not answer the question as to whether one should obey an unjust law. Fuller takes the grudge informer cases from Nazi Germany and reasons that while they may have been unjust, that is not the question one should be asking, instead, Fuller looks to see if it is valid law in the first place. In order to see if a law is law, Fuller designed an eight-standard-approach which involves seeing if the law is general, promulgated, non-retroactive, clear, non-contradictory, followable, consistent, and applies equally to all stratus of society, including government officials. A law does not need to comply with all eight elements to be law, but it should generally be regarded as having achieved the flavour and substance of the “Desiderata” or eight-standard-approach.

This reasoning makes sense, as a society cannot be allowed to follow some law and ignore others on a whim, though an entire law or legal structure is also capable of not being regarded as law, in which case the law is void, as it never was valid to begin with. None the less, a weakness of this reasoning is that minority right could potentially be trampled by the majority in society, especially in less sophisticated democratic societies.

Damnum iniuria datum: actio directa v. actio utilis (actio in factum)

The distinction between the actio directa and actio utilis seems quite complicated, however as far as non-doctoral studies are concerned, actio in factum was referred to by the jurists as actio utilis and vis-à-vis.

In regards to actio factum and actio utilis, I am quoting Zimmermann for the answer, “What was the difference between these two types of actions, and why did one sometimes turn to the one and sometimes to the other? Originally, actions in factum and actions utilis appear to have been two separate techniques by means of which the praetors were able to supplement, to correct and to adapt the ius civile. As far as the lex Aquilia is concerned, the actio in factum was competent where the factual circumstances of a specific case did not fit in with the statutory verbs (occidere, urere frangere rumpere); an actio utilis, on the other hand, was the opposite remedy to extend the right to sue to persons other than the owner” (emphasis added). – Law of Obligations, pp 995

The final codification of the praetorian edict was by Iulianus, circa A.D. 130, which resulted in praetorian activity and innovation coming to an end and the ius honorarium losing its flexibility, along with the administration for justice shifted to the imperial courts and chancellery and the rise of the new cognitio procedure. These changes resulted in the differences being less and less practical relevance and thus no longer interested the jurists. -- Borkowski & du Plessis 2005.

Don’t forget, the act (as prescribed under the ex delictu of damnum iniuria datum and regulated by Chapt. 3 of the lex Aquilia), meaning the wrongful damage, could be direct (actio directa) or indirect (actio utilis, as noted earlier, this action was also referred to as an actio in factum), could be either a ‘positive undertaking’ or an ‘omission’ (to penalize omissions is to impose a duty to act – a positive duty – and it is arguable, in absence of a contract, the policy of the law should be to impose only negative duties), and must have been caused by the defender (defendant). Causation is a problematic area of law, in even the most sophisticated and developed legal systems. The question which must be answered, was the defender’s act the substantive and operative cause of the damage?

The Romans attempted to provide solutions to each individual problem without sustained resort to overriding principle. Example – If a midwife gave a slave-woman a drug from which she died, this was admitted (by interpretatio) to be ‘killing’ (via actio directa), however, if the midwife did not administer the drug with her own hands, but instead gave it to the slave-woman to take for herself, then this was ‘providing of a cause of death’, and therefore actionable by actio utilis. -- Nicholas, Into to Roman Law 2008.

If the defendant’s conduct caused damage that may not have occurred in other property of the same type, the defendant was never-the-less liable. He (the defender) had to take his victim as he found him – a principle known as the ‘Thin Skull’ Rule in Common law systems. Meaning, “if someone gives a light blow to a sickly slave and the slave dies from it, Labeo rightly says that the person who gave the ‘light blow’ is liable under the lex Acuilia” D.9.2.7.5.

Roman law principles being used in modern case law

I have been writing a paper on how Roman law is still incorporated into the case law of Great Britain, if an issue at first instant has no precedent or statute on which to stand. It is rare that it does happen, but once and a while and issue will arise which hasn't been legislated on or made law through the courts (I was shocked to discover that in the hundreds of thousands of laws, this could happen).

The case which we were assigned to study was the Sloans Dairy Case, which concerns the principle of periculum rei venditae nondum traditae est emptoris and whether or not it applies to the sale of heritable (real estate) property. The case essentially boils down to a question of when the contract became valid. As Sloans Dairy had sold, but not physically received payment for some property with developments to the Glasgow Corp. Part of the developments burned after the missives were notarized. The defendants refused full payment, claiming the valued had diminished due to the damage caused by the fire. The pursuers raised an action for a decree ordaining the defenders to make good the negotiated sale price and cough up the cash. The question for the court was when does 'risk' transfer from the seller to the buyer? According to Roman law, risk transfers when the contract is made perfect.

The question then must be asked, what are the essentials which make the contract perfect? Roman law and that of Scotland state that subject matter, price, and agreement on the essential terms. As luck would have a date was not mentioned in the contract, correspondence between the parties and thus no clear cut line could be drawn for when the contract was perfect. Roman law states that when the price and subject matter is agreed the contract is perfect. Britain has tended to accept this logic, though this means risk can transfer ahead of possession. This was the position held by the Court of Session in Sloans Dairy and the defenders were ordered to pay the purchase price (which had been agreed). While I agree with the logic, it seems a date should be considered an essential element of a contract required to be in writing.

It is amazing how much risk a buyer assumes when concluding a contract prior to the delivery of the possession. I love the quote from one judge who said the buyer accepts the risk and reaps the benefits of consequences. Another analogy which I liked was what if you commission a painting for $10,000 and you arrange to have the painting shipped to you, but in transit the artist dies, causing the value to appreciate to $20,000. The point being risk isn't always a negative.

Q & A with Matt Soper - students ask about castles, books, and ghosts

What types of castles are in Scotland?

There are many types of castes in Scotland. The majority were built along the coast as protection from Jackobite invasions and civil uprisings. In the last 300 years castles have continued to be built, however they tend to be more like large homes or estates, rather than a fortress for defence. Glamis Castle was the home to the Queen Mother before her death a couple years ago; Balmoral Castle is the official hunting retreat of HRH The Queen and HRH The Duke of Edinburgh (consort to the Queen), the Palace of Holyroodhouse is the Royal family's official residence in Scotland. A castle is merely a fortified residence to protect a noble or a noble domain. Most castles have apartments to house the noble when he / she is in residence, but the far larger function is to protect the king, queen, prince, royal duke (children of the monarch), duke, marquis, earl, or baron. Kings ruled a kingdom, Dukes ruled a Duchy, Marquis a Marquisette, Earls an Earldom, Counts a county and Barons ruled a barony. The Royal Duchy is the fund that pays the monarch and it is comprised mainly of land and stock holdings. Lords and Knights have titles in name only, which comes with no land or seat in the House of Lords on the Privy Council (advisors to the monarch – they must be part of the aristocracy and will be holders of heraldry titles, means those passed on from generation to generation). Judges carry the title lord, but that title is only for life and will not transfer to their heirs. HRH Queen Elizabeth II is the richest woman in the world, as her personal collection of assets makes her a billionaire. I love visiting castles and they are full of mystery, intrigue, history, and romance (in a classical sense).

What books are you currently reading?

I am reading a lot of books at the moment. Because I am studying law the majority of the books I read are related to law. I have been reading Gaius' Institutes which was originally written by the jurist named Gaius in ancient Rome, circa 170 A.D. I have also been reading Justinian's Institutes which was the first book ever written for law students. Emperor Justinian was the last great leader of Rome and tried to recreate greatness by codifying law (that means taking decisions of judges and opinions of jurists and making those concepts and ideas into statute). I have also been reading a book called Contract Law in Scotland by Hector MacQueen, who is considered one of the greatest living legal minds in all of Scotland (he is also one of my professors). I am also reading a book on Scottish family law by Elaine Sutherland and then a book on the Scottish legal system. I am working on learning French and for fun I have been trying to read some books in French, though these tend to be geared for little kids, I still find them challenging. The other book I have been reading is the Andre Agassi autobiography called Open, it is a good read and easy to read at night when your mind is tired and focusing on Law or French is not possible.

Have you ever been in a haunted house?

I have never been in a haunted house, or at least I did not know if I was in a haunted house or not. I have taken a ghost tour along Edinburgh’s Royal Mile and while I wasn’t scared, there definitely were places we were taken on the tour where I would not want to go alone. One such place was the chambers underneath the Royal Mile and South Bridge, where many poor people lived and worked during the medieval period. When the Black Plague hit Edinburgh and the bodies were piling up, the city built on top of the old city, fearing that it was a curse – we all know it was the bubonic bacteria. The worst example of the bubonic plague was in Mary King's Close, believed to be the last badly infected location of the Old Town. In a desperate measure to reduce contamination over 300 plague victims were entombed alive when the close was bricked up until the plague had passed. All perished. Knowing the history, made visiting the city under the city quite scary to say the least – the tour guides helped ensure the history was very vivid in our minds. There are numerous reports of haunting in the closes along the Royal Mile – are they really haunted? Who knows?

Acceptance as a requirement for paying aliment

The Family Law (Scotland) 1985, s. 1, provides “a person to a child ... who has been accepted by him as a child of his family,”^[1] has a possible obligation to pay aliment. Prior to the 1985 Act coming into force^[2], “it was necessary for there to be a marriage before there could arise any obligation ... [to pay aliment for children] ... (of one party or other party) who had been accepted as one of the family by the other party.”^[3]

The fact that a defender has an obligation to pay an aliment does not mean that a claimant will be awarded an aliment from the court.

In Watson v Watson^[4], Sheriff R. A. Davidson held, “...the former husband was under no obligation to aliment the child because he had never accepted the child into his family in the knowledge that he was not in fact the child's father.”^[5] Likewise, it has been stated: “What constitutes acceptance? It is suggested that in addition to treating the child as one’s own child there must also be an intention, initially at least, to provide support indefinitely. ... There are also cases in which acceptance required full knowledge of facts about the child’s paternity and an agreement by both spouses that the child should be accepted.” (footnotes omitted)^[6]

There does appear to be a legal base which could preclude defender from paying any aliment support to a child, but the Scottish / English courts are likely to have a low test for acceptance.

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^[1] Family Law (Scotland) Act 1985, s. 1(1)(d)

^[2] Matrimonial Proceedings (Children) Act 1958, s. 7

^[3] Forbes v Forbes (also known as 1991 S.C.L.R. 389 (Sh Ct (Grampian))

^[4] Watson (Lindsay) v Watson (Parent & Child: Aliment) 1994 S.C.L.R. 1097

^[5] Op. cit. Watson v Watson 1994 S.C.L.R. 1097

^[6] D I Nichols, The Family Law (Scotland) Act 1985 (2^nd edn W. Green, Edinburgh 1991) 7, para 2.16