University of Sussex
Browse
ELR Article corrected.pdf (443.63 kB)

Ownership and obligation: restitution, vindication and the recovery of moveables in Stair's Institutions

Download (443.63 kB)
journal contribution
posted on 2023-06-09, 06:27 authored by Bonnie HolliganBonnie Holligan
To what extent does Scots law recognise an action for recovery of moveable property based on the ownership of the pursuer? Doctrinal answers to this question are usually forced to engage with the assertion of Lord Stair that “we make not use of the name or nature of Vindication”. This article seeks to further historical and doctrinal understanding of Stair's views by locating them within the broader theological and philosophical context of the development in Europe of a Reformed theory of subjective rights. It is argued that Stair's comments must be understood in the context of disagreement about the role and status of Roman law in Scotland, and also a morally and philosophically rich understanding of ownership which focussed on the creation of a sphere of individually protected rights rather than the strictures of the Roman distinction between property and obligation. The article highlights debate between Stair and one of the other prominent jurists of the period, Sir George Mackenzie, and the extent to which their conflicting accounts of property law doctrine are inseparable from questions about legal authority and national identity. By situating Stair's views within their historical and intellectual context, it is hoped to encourage a more reflective approach to their status as doctrinal authority.

History

Publication status

  • Published

File Version

  • Accepted version

Journal

Edinburgh Law Review

ISSN

1364-9809

Publisher

Edinburgh University Press

Issue

2

Volume

21

Page range

169-191

Department affiliated with

  • Law Publications

Full text available

  • Yes

Peer reviewed?

  • Yes

Legacy Posted Date

2017-06-01

First Open Access (FOA) Date

2017-06-01

First Compliant Deposit (FCD) Date

2017-05-31

Usage metrics

    University of Sussex (Publications)

    Categories

    No categories selected

    Exports

    RefWorks
    BibTeX
    Ref. manager
    Endnote
    DataCite
    NLM
    DC