The Bible in Scots law

Only with the greatest hesitancy does Scots Law News enter into the discussion of Lord Mackay of Clashfern's support for the Scottish Bible Society's leaflet on "The Bible in Scots Law" and its statement that the Bible is a "foundational source book for Scotland's legal system".

The text of the leaflet has been helpfully made available on the Internet by our blogging colleague, the Lallands Peat Worrier.  From a historical point of view, there can be no doubt that the Bible has played a role in the shaping of Western law in general, in particular canon law, and that from there it has gone on to be influential in the development of other legal systems, including Scots law.  The pamphlet is right to say that the "institutional writers [were] informed by Roman and biblical law for civil law and by biblical law for criminal law".  Who can forget Lord Cooper's famous characterisation of Scots law as expounded by Stair? – "an original amalgam of Roman Law, Feudal Law  and native customary law, systematised by resort to the law of nature and the Bible, and illuminated by many flashes of ideal metaphysic."

Yet there are some puzzles about the pamphlet.  It gives a long list of scriptural citations to illustrate themes of relevance to justice in 21st-century Scotland (exhaustively and critically analysed, incidentally, by the Lallands Peat Worrier), but there is a heavy preponderance of Old Testament over New.  Nor is there any mention of surely the most famous of all modern judicial references to the Bible (of which your correspondent was reminded by reading Elspeth Reid's account of the case in the recently published Scots Law Tales), the church-going Lord Atkin's deployment of the Parable of the Good Samaritan (Luke 10:29-37 and, note, New Testament) as a prelude to his definition of the duty of care in negligence in Donoghue v Stevenson.

Perhaps, however, this omission is because Lord Atkin was careful to avoid a literal reading of the command to love his neighbour in determining the legal test he sought to formulate.  He could well see the difficulties which even such a seemingly attractive proposition might make if transformed into a legal rule.  And surely this is the right approach: to see in the Bible a potential sources of principles for the governance of human relations which has undoubtedly had (and probably continues to have, directly or indirectly) considerable influence in our society, but one that goes alongside many others, probably increasingly so in our multi-cultural and sceptical world, and must be treated with circumspection, critical thought and awareness that much of its content is informed by the ideas and values of times completely different from our own. 

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