Paradigms of Authority in the College of Justice in Scotland

Abstract

In a functioning legal system, it is generally assumed, there will be settled rules governing the identification of other rules as laws applicable to the facts of cases. The task of 'doctrinal legal history', it is further assumed, is to examine the development of the rules of law identified and applied according to the settled rules. But what if there is disagreement about how rules of law should be identified and applied? The first part of this chapter provides a case study of how rules of law were identified and applied in the highest civil court in Scotland towards the end of the seventeenth century by looking at decisions relating to the strict liability of innkeepers. In the second part it is argued that the case study illustrates a continuing debate in this period over the authority to be attributed to certain sources and the appropriate approach to be taken in resolving novel questions of law. It is suggested that in seeking to make sense of the type of situation described assistance may be derived from Thomas Kuhn's account of the emergence of new research paradigms in the natural sciences.