The Remedies of the Owner in Scots Law
PhD student: Mrs Dr B.M. Holligan
Promotor: Prof K.G.C. Reid
Duration: 14/9/2010 - 13/9/2013
The proposed research will focus on the remedies of the owner in Scots law, using this as a prism through which to examine changes in conceptions of property and evaluate the nature and significance of ownership in the modern law. The starting point will be a historical investigation of the development of the Roman concept of property ownership, with particular reference to the right to vindicate possession from non- owners and the effect of the maxim Nemo plus juris ad alienum transfere potest, quam ispe habent\". Following from this, it is hoped to trace the reception of Roman doctrine in Scots law, and its application to both heritable and moveable property. This work will provide context for discussion of the incidents of ownership in modern Scots law, with emphasis on the relationship between possession and ownership and the extent and nature of the owners right to recover possession if lost. From a doctrinal perspective, it is particularly interesting to assess the modern relevance of the rule Nemo plus juris ad alienum transfere potest, quam ispe habent to both land and moveables, especially in the context of sale of goods and land registration legislation. Further to this, an integral part of the project will be consideration of the changing nature and function of property law in society, particularly with respect to land ownership, and the transition from a feudal society to a capitalist one. It is hoped that historical analysis will illustrate that the modern approach to protecting ownership is neither natural nor inevitable. The profound moral and philosophical implications of property law doctrine in this area will be discussed, and placed in the context of the development and critique of the modern law. More generally, reflection on property law doctrine will aim to illuminate several questions which are central to Scots private law scholarship today. These include the relationship between Scots law and other legal systems, European and worldwide, the relationship between public and private law and the extent to which private law can be understood in isolation from concerns of distributive justice.