Comparative Law

Unworthiness to Inherit, Public Policy, Forfeiture: The Scottish Story

The concerns addressed by the civilian rules on unworthiness to inherit (indignitas succedendi) must be addressed by any legal system.  When they arose in Scotland, responses tended to be found by the extension or development of other rules.  Even where there was reference to the idea of unworthiness, as in the Parricide Act 1594 and in Buchanan v Paterson (1704), the result was later re-conceptualized along different lines.  In recent years, the Scottish courts have been more receptive to the public policy principle that no one is to benefit from his or her own wrong, taken from the English common law.  Even there, however, the Scottish courts have shown a reluctance to follow foreign authorities too closely.  The result is a series of shoots, each taking a slightly different direction and none of them growing to maturity.  Thus, whatever might be said about Lord Cooper’s characterization of Scottish legal history as a story of “false starts and rejected experiments” on a general level, it is certainly an accurate description of the story told in this Article, that is, of the treatment of persons who do not deserve to inherit in Scots law. It is remarkable how much of the discussion in Scots law is focused on cases involving the killing of the deceased.  The differences between the unworthiness and the public policy approach do not in fact play a role in this situation and that is probably the reason why they have not elicited much comment.  Beyond killing there is hardly any case law.  One of the main reasons for this appears to be that other legal devices are available to take care of many, perhaps most, of the practical problems that may be raised in other instances of unworthiness to inherit.

Path Dependence and Legal Development

“Path dependence” is an important explanation in comparative law, but it also recognises that the law does develop by breaking out of the mould cast by the past.  Path dependence affects not only the legal concepts that the law uses to solve problems, but whether the law will intervene in a problem area or not.  Path dependence assumes that there is no ideal solution, but an equilibrium can be found within a particular society between the role of law and that of other social institutions.  The scope for change depends significantly on the extent to which a particular legal approach is “embedded” within the legal system—how many parts of the law depend on it.  Real embeddedness involves the way in which a particular rule or practice connects to other parts of the law, especially when it is underpinned by structural or organisational aspects of the system.