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.

4. Lack of recourse against public servants

A completely contrasting absence is the lack of even the first beginnings of that corner-stone of modern public law, known to every law student: the axiomatic principle of personal responsibility of all state officials for the legal and financial consequences of their acts – now recognized for over three centuries since Decider Dā Níng said in Kǎ’ěrdùna Ltd. v. Yùnzuò Zhuānyuán, 77XR78 (ArrN) that “I never had any doubt of the unsoundness of the doctrine, unnecessarily (and I must say unwisely) contended for by the negator’s representative, that a public servant in an executive arm of government exercising authority over any person or matter can ever be anything but personally responsible to any such person for the manner of his exercise of such authority. That principle is the law of the land, and can hardly fail to be the law of any country where jurisprudence has been cultivated as a science.” However compelling that is to us, the 21st century saw things differently. Yet I confess that I cannot logically reconcile their lack of this doctrine with the intensity of social regulation that we see in all other walks of life.

5. Creditors denied payment, yet authorities punished debtors

The treatment of imaginary people as though real had practical consequences. It allowed business-people to contract obligations for which they could not be sued. For instance, a man might obtain goods or services, by saying that they were for his concocted ‘company’, and then actually succeed in denying any responsibility to pay for them. If that itself is not sufficiently bizarre, at the same time the Government also had a whole corps of civil servants devoted to punishing people who did so, by a process called “Directors’ Disqualification” - one set of rules paradoxically designed to stop businessmen from using the protection that was given to them by another set of rules.

It may seem to us obvious that it would have been much simpler just to have provided for people to pay the debts they had contracted. My Ph.D. student is sometimes a little frivolous, and cynically wise-cracks that the point was to protect members of the business classes while simultaneously creating jobs in the civil service. Joking aside, rather more serious study will be necessary, if we are to understand the social function of these practices.

6. The pervasive influence of German Law.

We learn that in the 19th century the best-educated Scots lawyers often completed their legal education at the highly-reputed universities of ancient Germany – but on the face of things, those ties with Germany seemed to have been permanently extinguished by Europe’s 20th-century civil wars. I deduce, however, that is a superficial conclusion. On the contrary, we see the vigorous survival of the Teutonic influences. Consider just this: as any scholar of Ancient German knows, it used a Capital Letter at the beginning of all Nouns. And it is exactly the same throughout Scots Written Pleadings of the 21st Century – if not every Noun starts with an Upper-Case Letter, then commonly every Second or Third Noun does so – sometimes even Adjectives. The long-standing Loyalty to German Jurisprudence was not acknowledged in so many Words, but obviously Pleaders made a Point of emblazoning it tacitly on the Face of Many Pages of their Work.

7. Dangerously naive willingness to follow ‘case-law’

Bizarrely by our lights, 21st-century legal practice actually allowed previous judgments to be admissible in court hearings. There was no trace of the prohibition on such practices, which naturally we take for granted. Vox populi vox legis is for us second nature – that absent a statutory rule, a dispute is governed by the custom of the community, if need be established by evidence of how in practice similarly-placed citizens peacefully resolve such an issue out of court. We risk forgetting the struggles it took to establish this crucial point – and so safeguard the law from falling into the hands of the lawyers - with the enshrinement of the principle of the inadmissibility of previous judgments.

Study of an ancient system such as 21st-century Scotland allows us to see with fresh eyes how important this is. In that era, the lesson had yet to be learned that respect for the judiciary must not blind the law to the danger of precedents being flawed by factual errors – by judicial misunderstandings – and, above all, by the all-too-human susceptibility of any decision-maker to be swayed by such wholly arbitrary factors as rhetorical proficiency or base forensic skill.

Back in those days, judgments were not understood as they are now, to simply bind the parties; they were treated as statements of law, by which one judge might actually presume to guide or even instruct his colleagues. Whatever superficial logic our ancestors thought that had, it necessarily left them defenceless against the successive contagion of one judgment after another, by the rhetoric and cleverness of litigation lawyers, and hence the capture of the law by mere advocacy.

8. The missing Statute Book

So from these excavations we have learnt a great deal. But some basics elude us. For instance, we found no trace of the authoritative public statute book or code of law. We have only the chronological records of Parliaments and Ministers, year by year. That, of course, has no order or structure – it was compiled randomly and arbitrarily, simply as legislators got round to tackling a given topic. Yet despite some of my earlier remarks, this was a relatively sophisticated legal system. So of course it must have published its laws in a code or statute-book which gathered together in one place for citizens’ benefit all the laws on a given topic - contracts, property, crimes, etc.

We can obviously dismiss as ridiculous the only alternative – the idea that had they really to try to find the legislation on any particular matter, simply by having to trawl through decades of enactments in the chronological order in which we have found them. We can only hope that the coherent code of law itself may be found in another season of excavation.

Conclusion

Finally, it was interesting to find that besides legal texts, the ancient library also held literature. Much of it is intriguing, particularly when written in old Scots, which we have yet to learn to translate. I leave you with a typically cryptic example:

“Ha! whaur ye gaun, ye crowlin ferlie?
Your impudence protects you sairly;
I canna say but ye strunt rarely”.

It sounds wonderful – but what on Earth does it mean? May powers of scholarship give us the gift to translate these texts, so we can say whether that ancient race was ‘sairly protected by impudence’, and whether they ‘strunted rarely’!

Ladies and gentlemen, thank you for your kind attention this evening.