文档介绍：THE DOCTRINE OF ABUSE OF RIGHTS:
Perspective from a Mixed Jurisdiction
Elspeth Reid(1)
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Contents
1. Scots lawyers a-whoring after strange gods
2. Rejection of aemulatio vicini: A strange god?
3. Aemulatio vicini in the Scots Institutional writers
4. Aemulatio vicini in the case-law
5. A false god for English law?
6. Mixed jurisdictions
7. Comparative conclusions
Notes
1. Scots lawyers a-whoring after strange gods
'Alas . . . we in Scotland have gone a-whoring after some very strange gods.' This colourful assertion was made by one of Scotland's most distinguished twentieth-century jurists parative lawyers, Sir Thomas Smith, in his inaugural lecture at the University of Edinburgh in 1958.(2) Smith was one of the key figures in the rediscovery of the distinctiveness of Scots law as a mixed legal system, and he devoted much of his writing to uncovering its Civilian elements. Smith's evangelical vision (and graphic turn of phrase) passed many areas of private law, but the profanity instanced here was the denial of 'the principle of aemulatio vicini (or what is popularly but not very happily called 'abuse of rights')'.(3) Smith's assumption was that the place of abuse of rights in Scots law should be acknowledged in order to secure a further element of the Civil Law tradition. Hitherto, Scots law had failed to use the 'spadework' of the Scots Institutional(4) writers to build a Civil Code in the early eenth century, and thus the principles of the evolved Civil Law had not e 'fully related and systematised'.
(5) Instead the Scots had umbed to the 'pressures and blandis