私法的宪法化.doc

THE CONSTITUTIONALISATION OF PRIVATE LAW:
Scotland
The Honourable Lord Reed(1)

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I suspect that most students of private law in Scotland would find the title above rather difficult to understand. The reaction of some might be to reflect that Scotland does not have any 'constitution', in the sense in which that expression is used in other countries: in other words, a legal document with some privileged status, guaranteeing fundamental rights. Others might react with the thought that constitutional law and private law are quite distinct subjects: when I was an undergraduate at Edinburgh University, for example, they were taught by separate departments, with what seemed to me to be different traditions and different habits of thought. Constitutional law, after all, was regarded by some as a rather soft-edged subject, concerned to a considerable extent with conventions, traditions and practices which did not constitute 'law' in the same sense as the black letter subjects taught under the aegis