Professor of Civil Law
LL.B., Ph.D., F.R.S.E.
- Tel: +44 (0)131-650-2065
- Fax: 0131 650 2005
- Email: firstname.lastname@example.org
- Office hours for current students:
Tuesday, 2.30-3.30 pm
A graduate of the University of Edinburgh, Professor Cairns served as a Lecturer in Jurisprudence at the Queen's University of Belfast before returning to Edinburgh to hold the posts of lecturer, senior lecturer and reader before appointment to the Chair of Legal History in 2000. In December 2012 he was appointed to the Chair of Civil Law. He has also worked as a Visiting Professor at the University of Miami (1988, 1991, 1995) and Southern Methodist University (1986). He held the office of Associate Dean (Postgraduate)/Director of the Graduate School in Law from 2000-2003. From 1996-2003 Professor Cairns was Book Review Editor of the Edinburgh Law Review. He has served on the Editorial Board of the Law and History Review and the Editorial Committee of the Journal of Legal History, now serving on the honorary Editorial Board of the latter. He is Chairman of the Council of the Stair Society. From 2006 to 2008 Professor Cairns served as president of the Eighteenth-Century Scottish Studies Society for a two-year term; he continues on its Board. In 2008, he became a founding member of the Advisory Board of the Alan Watson Foundation.
After early research on the comparative legal history of Louisiana and Quebec under the supervision of Alan Watson, Professor Cairns has devoted himself to the study of the legal literature of Scotland and England in the seventeenth and eighteenth centuries, and to a long term research project on the relationship between legal thought and legal education in the Scottish enlightenment. He has published extensively in those fields in Britain, North America, continental Europe and Japan. He is currently researching law and slavery in eighteenth-century Scotland and completing a monograph on the history of Scots law.
He welcomes inquiries about postgraduate research in Scottish legal history, European legal history, eighteenth-century legal studies, and slavery and law. He is currently supervising in Edinburgh:
Ph.D. "Cities of Light: Civil Law and Civic Life in Edinbugrh and Leipzig, 1707-1806"
Ph.D. "Reception of the French Civil Code in Quebec, Louisiana and Francophone Swiss Cantons: a Socio-legal Study"
Ph.D. “Legal reasoning and witchcraft and at the Justiciary Court of Edinburgh, 1628-1634”
Ph.D. “The ‘ius commune’ in Early Modern European legal thought (1453 – 1683” (second supervisor)
Recently completed and successfully examined research student work under his supervision:
LLM (by research) "Jacobitism and the Faculty of Advocates, 1700-1715" (degree awarded with distinction);
Doctorate, University of Amsterdam, "Ulrik Huber's Dialogus de docendi et discendi iuris" (co-promotor)
LL.M. (Research) "Civil Jurisdiction in Equity in the Scottish Legal System"
Ph.D., "The Court of the Commissaries of Edinburgh: Consistorial Law and Litigation, 1559-1576" (Divinity - Second Supervisor)
LL.M. (Research) "A Lawyer and his Clients: David Erskine and the Stirlings of Keir" (degree awarded with distinction)
Ph.D. "Viscount Stair's Sources and Citations in a Humanist and Natural Law Context"
Ph.D. "The Library of Charles Erskine (1680-1763): Book Collecting and Lawyers in Scotland, 1700-1760"
Civil Law (Ordinary)
History of Scots Law (Honours) (Course Organiser)
Law and the Enlightenment (LLM) (Course Organiser)
The Age of Mercantilism: the Dutch Republic and the Law, 1648-1795 (Honours)
Jasmin Hepburn 'The "ius commune" in Early Modern European legal thought (1453 - 1683)'
Christina James 'Alessandro Tartagni and De Appellationibus: A study in the development of the ius comune in 15th century Bologna'
Ilya Kotlyar 'Influence of Jus Commune on the Scottish judicial practice of succession to movables in 1560-1660'
Asya Ostroukh 'Reception of the French Civil Code in Quebec, Louisiana and Francophone Switzerland'
John W. Cairns, Hector MacQueen Learning and the Law: A Short History of the Edinburgh Law School (Privately Published by the Faculty of Law, 2000)
Abstract: This describes the history of the Faculty of Law from 1707 to 2000, with lists of professors noting significant events and inlcuding extracts from reminiscneces of former studnts.
John W. Cairns, Paul J. du Plessis The Creation of the Ius Commune: From Casus to Regula (Edinburgh University Press, 2010)
Abstract: This book is concerned with the transformation of Roman legal rules into the 'common law' of Western Europe in the period 1100-1400. In the space of three centuries these rules, collected in the sixth-century compilation produced by order of the Emperor Justinian, were comprehensively analysed and transformed by successive generations of medieval Italian and French jurists into the bedrock of Western European law. Through a series of chapters a number of distinguished scholars survey the traditional classifications of private law to establish the cognitive techniques used by these jurists to transform Roman law, along with Canon law into the ius commune of Western Europe.
John W. Cairns, Paul J. du Plessis Beyond Dogmatics: Law and Society in the Roman World (Edinburgh University Press, 2007)
Abstract: This edited collection contributes to the lively debate about law and society in the Roman world. It attempts to provide a balanced assessment of various points of view, through a number of studies by distinguished scholars.
John W. Cairns, Grant McLeod The Dearest Birth Right of the People of England. The Jury in the History of the Common Law (Hart, 2002)
Abstract: This study examines the criminal and civil jury in England in the 19th century. It also provides a reassessment of standard issues such as jury lenity or equity, while raising questions about orthodoxies concerning the relationship of the jury to the development of laws of evidence. Moreover, this reassessment of the jury in 19th-century England rejects the thesis that juries were squeezed out by judges in favour of market principles. The text provides a rounded picture of the jury as an institution, considering it in comparison to other modes of fact-finding, its development in both civil and criminal cases, and the significance, both practical and ideological, of its transplantation to North America and Scotland, while opening up new areas of investigation and research.
John W. Cairns, O. F. Robinson Critical Studies in Ancient Law, Comparative Law and Legal History (Hart Publishing, 2001)
Abstract: This is a collection of essays by a distinguished set of international contributors, covering Roman law, ancient law, chinese law and the modern legal history of Scotland and the ius commune.
John W. Cairns, Christian Verbeke The Muirhead Collection Catalogue (Belgische Commissie voor Bibliographie en Bibliologie, 1999)
Abstract: This consists of two parts. Part I: An account of james Muirhead; Part II: The Catalogue of his library. For electronic reprint, see: http://iuscivile.com/materials/reprints/cairns.htm
John W. Cairns, George Mackenzie and Alex Cain Oratio inauguralis in aperienda jurisconsultorum bibliotheca (Butterworths, Faculty of Advocates, 1989)
John W. Cairns 'English Torts and Roman Delicts: The Correspondence of James Muirhead and Frederick Pollock' (2013) Tulane Law Review 87 pp 867-886
Abstract: The revival of the study of Roman law in Britain in the second half of the nineteenth century was a complex development not yet fully understood. It is evident that awareness of German scholarship in Roman law, both systematic and historical, and the development of curricula in the Universities were crucial in this revival, which also influenced the writing of treatises on the common law. This article focuses on the publication of Erwin Grueber's textbook on the Lex Aquilia intended for use by students in Oxford. It places it in context, and explores the reaction to it of James Muirhead, Professor of Civil Law in Edinburgh, and Grueber's Oxford colleague, Frederick Pollock. Pollock admired Muirhead as a scholar of Roman law, and corresponded with him about Grueber's book, which he also asked Muirhead to review for the Law Quarterly Review. This was one year before Pollock published his work on torts in which he cited Grueber. Muirhead's response to Pollock throws light on contemporary scholarship. The article finally raises questions about our understanding of the development of the study of Roman law in late-Victorian Britain.
John W. Cairns 'After Somerset: The Scottish Experience' (2012) Journal of Legal History Vol 33 pp 291-312
Abstract: The Scottish evidence examined demonstrates the power of the popular understanding that in Somerset's Case (1772), Lord Mansfield had freed the slaves, and shows how the rapid spread of this view through newspapers, magazines, and more personal communications, encouraged those held as slaves in Scotland to believe that Lord Mansfield had freed them - at least if they reached England
John W. Cairns 'National, Transnational and European Legal Histories: Problems and Paradigms. A Scottish perspective' (2012) Clio@Themis: Revue électronique d'histoire du droit 5 1-13
Abstract: This article explores the different ways of writing legal history, using concrete examples to demonstrate the advantages and disadvantages of each. The possibilities of national, European and transnational legal histories are discussed with a conclusion that most good legal history has always had a comparative or transnational aspect. http://www.law.ed.ac.uk/ease/admin/publications/addjournalart.asp
John W. Cairns 'Alexander Cunningham, Book Dealer: Scholarship, Patronage, and Politics' (2010) Journal of the Edinburgh Bibliographical Society vol 5 pp 11-35
Abstract: Alexander Cunningham, Scottish Gentleman, Scholar, and Bibliophile, who lived at The Hague between 1703 and 1730, was associted with many noble collectors and had an impact on the development of many major libraries in Britain
John W. Cairns 'The de la Vergne Volume and the Digest of 1808' (2009) Tulane European and Civil Law Forum vol 24 pp 31-81
Abstract: This provides a detailed study of the de la Vergne volume and related MSS. It shows how Louis Moreau Lislet, one of the redactors of the Louisiana Digest of 1808, drew up these notes between ca 1812 and 1814 drawing on the Teatro of Perez. It arues taht Moreau's aims were parctical and that the notes are not to "sources" of the Digest in the way that Pascal and others have argued.
Paul J. du Plessis, John W. Cairns 'Ten Years of Roman Law in Scottish Courts' (2008) Scots Law Times (29) 191 - 194
Abstract: This survey looks at the extent to which Roman law has been cited in Scottish courts in the last 10 years.
John W. Cairns 'The Origins of the Edinburgh Law School: the Union of 1707 and the Regius Chair' (2007) Edinburgh Law Review vol 11 pp 300-348
Abstract: This explores the foundation of the first permanent chair of law in Edinburgh, relating it to the politics and intellectual concerns of the Union. Older research is considered and corrected and a new view given of this event. Particular attention is devoted to the link between the chair and article 18 of the union and the developing discipline of ius publicum universale ina European context.
John W. Cairns 'Attitudes to Codification and the Scottish Science of Legislation, 1600-1830' (2007) Tulane European and Civil Law Forum pp 1-78 vol 22
Abstract: This paper explores the changing attitudes of Scots lawyers to the formal sources of their law, tracking and explaining a move from the usus modernus pandectarum towards reliance on case-law. In this the differing attitudes to statutes plays a major role, especially when influenced by the Enlightenment
John W. Cairns 'The First Edinburgh Chair in Law - Grotius and the Scottish Enlightenment' (2005) Fundamina 32-58
Abstract: This explores the foundation of the chair of public law and the law of nature and nations in Edinburgh in 1707 in the context of rleiance on the work of Grotius in Scottish courts in developing a substantive natural law. It then discusses the holders of the chair through the eighteenth century and the substance of what they taught
John W. Cairns 'Ius civile in Scotland ca 1600' (2004) Roman Law Tradition 136-170 vol 2
Abstract: This considers the changing attitude to Canon Law in Scotland and the developing concept of the ius commune
John W. Cairns 'Stoicism, Slavery, and Law, Grotian Jurisprudence and Its Reception' (2004) Grotiana 197-232
Abstract: The ius naturale and ius gentium as propounded by Grotius in his De jure belli ac pacis allowed the formulation of a modern justification of slavery as a time when European maritime powers were starting to engage heavily in the slave trade. In litigationn Scotland in the eighteenth century, Grotius was drawn on to defend slavery.
John W. Cairns 'The Face that Did not Fit - Race, Appearance, and Exclusion from the Bar in Eighteenth-Century Scotland' (2003) Fundamina 11-43 vol 9
Abstract: In the early 1780s, the Faculty of Advocates in Edinburgh tried to exclude from membership a man called John Wright. This was partly because of his background. Another reason may have been his remarkable appearance which may have raised questions in individuals' minds about his racial origin and promoted anxieties deriving form the developing science of physiognomy
John W. Cairns 'Legal Study in Utrecht in the Late 1740s The Education of Sir David Dalrymple, Lord Hailes' (2002) Fundamina pp 30-74
Abstract: This article, in a special issue of Fundamina, entitled Summa Eloquentia, dedicated to Margaret Hewett, examines the MSS and Library of Lord Hailes to explore his legal education at Utrecht. It raises issues about the links between the study of law and classics and the reasons why Scots stopped going to study law in the Netherlands. It makes some points about the Enlightenment as a concept and legal humanism, while discussing the teaching of various law professors at Utrecht in the 1740s, notably Wieling, Houck and Wesseling.
John W. Cairns 'Alexander Cunningham's Proposed Edition of the Digest: An Episode in the History of the Dutch Elegant School' (2001) Tijdschrift voor Rechtsgeschiedenis vol 69 pp 81-117 pp 307-359
Abstract: This explores the life and times of Alexander Cunningham (died 1730) assessing his significance as an editor of the texts of the Corpus Iuris Civilis, particularly of the Digest and as an editor of classical texts. It assesses his significance as a book collector and dealer and his importance in the intellectual life of Scotland and the Netherlands
John W. Cairns 'Alfenus Varus and the Faculty of Advocates: Roman Visions and the manners that were Fit for Admission to the Bar in the Eighteenth Century' (2001) Ius Commune: Zeitschrift für Europäische Rechtsgeschichte Vol28 pp 203-232
Abstract: Members of the Faculty of Advocates, the Scots bar, had traditionally been trained in Roman law, on which they were typically examined for admission as advocates before the supreme civil court, the Court of Session. In the later seventeenth century, the social composition of the Faculty changed, as it became dominated by the sons of landed families. It became a more socially exclusive institution. This social exclusiveness was reinforced by studies in Roman law, which were expensive, as they had to be pursued abroad. Roman law and its interpreters also provided legal arguments that to be an advocate was to exercise a noble profession and the model of the ideal advocate was a combination of the Roman jurist with the Roman orator. In the later eighteenth century, however, after the development of law schools in Scotland, acquisition of knowledge in Roman law became less expensive. When two men of "low" social origins (both with alleged connections with shoe-making) attempted to join the Faculty, a crisis resulted, in which the Faculty tried to develop new exclusionary rules using the eighteenth-century languages of virtue, corruption, sentiment and manners, as the ignobility of having exercised a trade such as shoemaking was judged to indicate a person unsuited to practise as an advocate. Contradictions in attitudes to Roman law were, however, revealed in lectures dealing with the fact that the famous Roman jurist Alfenus Varus had allegedly been a shoemaker. Attempts were made to rescue Alfenus showing either that Roman shoemakers were "genteel"; or that Alfenus was in fact more noble. These episodes revealed that the Faculty's traditional Roman model no longer functioned adequately to support the Faculty's claim to status. The crises over admission did help move towards the later view of an advocate not as a possessor of a status, but as a professional man defined by technical skills and legal knowledge.
John W. Cairns 'Ethics and the Science of Legislation, Legislators, Philosophers, and Courts in Eighteenth-Century Scotland' (2000) Jahrbuch fur Recht und Ethik vol 8 pp 159-180
Abstract: This article explores the impact of developments in legal theory in the enlightenment on pratice in the Scottish courts and contrasts Scotland with other European countries
John W. Cairns, Grant McLeod 'Thomas Craig, Sir Martin Wright and Sir William Blackstone: The English Discovery of Feudalism' (2000) Journal of Legal History vol 21 no 3 pp 54-66
Abstract: This explores the use of made of Craig's Jus Feudale by various English authors and assesses the significance of it. It discusses the extent to which Craig helped explain the history of English law.
John W. Cairns ''Advocates' Hats, Roman Law, and Admission to the Scots Bar, 1580-1812' (1999) Journal of Legal History Vol 20 no 2 pp 24-61
Abstract: The final ceremony for admission as advocate in scotland before the College of Justice formerly was the delivery of a speech in Latin on a text of the Corpus iuris civilis. The intrant advocate wore a hat for this ceremony. This article discusses the procedures for admisison as an advocate to argue that the ritual wearing of a hat had a symbolic meaning central to the aspirations of the Faculty of Advocates. Evenutually misunderstood, the ceremony was discontinued in the early nineteenth century
John W. Cairns 'Academic Feud, Blood Feud and William Welwood: Legal Education in St Andrews, 1560-1611' (1998) Edinburgh Law Review Vol 2 Parts 1 and 2 pp158-179 225-287
Abstract: This explores the life of William Welwood professor of Law in St Andrews University until 1611. It examines his teaching and its European and Scottish context, while also considering the nature of university history and the impact of the life of individuals on institutions. It examines the bloodfeud that marked and hampered Welwood's career.
John W. Cairns 'Three Unnoticed Editions of Pieter Burman's Antiquitatum Romanarum brevis descriptio' (1997) The Bibliotheck Vol 22 pp20-33
Abstract: This article corrects earlier views about the teaching of history by Charles Mackie in Scotland, showing how he taught a class on Antiquitates using the textbook of Pieter Burman, which as a result wnt through three Scottish editions, without the name of the author disclosed.
John W. Cairns 'Andrew Bell, Jonas Luntley and the London Edition of Mackenzie's Institutions' (1996) The Bibliotheck Vol 21 pp7-11
Abstract: This examines the reason for the English edition of Mackenzie's Instiutions of 1694 and explores the bibliographical significance of it.
John W. Cairns 'The Noose Hidden Under Flowers: Marriage and Law in Saint Ronan's Well' (1995) Journal of Legal History vol 16 pp 234-255
John W. Cairns 'Lawyers, Law Professors, and Localities: The Universities of Aberdeen, 1680-1750' (1995) Northern Ireland Legal Quarterly vol 46 pp 304-331
John W. Cairns 'From 'Speculative' to 'Practical' Legal Education: The Decline of the Glasgow Law School, 1801-1830' (1994) Tijdschrift voor Rechtsgeschiedenis vol 62 pp 331-356
John W. Cairns 'The Law, the Advocates and the Universities in Late Sixteenth-Century Scotland' (1994) Scottish Historical Review vol 73 pp 171-90
John W. Cairns 'The Influence of the German Historical School in Early Nineteenth Century Edinburgh' (1994) Syracuse Journal of International Law and Commerce vol 20 pp 191-203
John W. Cairns 'A Note on the Bride of Lammermoor: Why Scott did not mention the Dalrymple Legend until 1830' (1993) Scottish Literary Journal vol 20 pp 19-36
John W. Cairns 'William Crosse, Regius Professor of Civil Law in the University of Glasgow, 1746-1749: A Failure of Enlightened Patronage' (1993) History of Universities vol 12 pp 159-196
John W. Cairns 'Rhetoric, Language and Roman Law: Legal Education and Improvement in Eighteenth-Century Scotland' (1991) Law and History Review vol 9 pp 31-58
John W. Cairns 'Roman Law and Admission to the Bar in Eighteenth-Century Scotland' (1990) Legal History Review (Hôseishi Kenkyu) vol 40 194-203
Abstract: In Japanese
Hector MacQueen, John W. Cairns, T. D. Fergus 'Legal humanism in Renaissance Scotland' (1990) Journal of Legal History xi 40-69
John W. Cairns 'Review Article [of D. M. Walker, A History of' (1989) Legal Studies vol 9 pp 189-213
John W. Cairns 'Blackstone, Kahn-Freund, and the Contract of Employment' (1989) Law Quarterly Review vol 104 pp 300-314
John W. Cairns 'John Millar's Lectures on Scots Criminal Law' (1988) Oxford Journal of Legal Studies vol 8 pp 364-400
John W. Cairns 'The Breve Testatum and Craig's Ius Feudale' (1988) Tijdschrift voor Rechtsgeschiedenis vol pp 307-329
John W. Cairns 'Employment in the Civil Code of Lower Canada: Tradition and Political Economy in Legal Classification and Reform' (1987) McGill Law Journal vol 32 pp 673-709
John W. Cairns 'Eighteenth-Century Professorial Classification of English Common Law' (1987) McGill Law Journal vol 33 pp 225-244
John W. Cairns 'Blackstone, the Ancient Constitution and the Feudal Law' (1985) Historical Journal vol 28 pp 711-717
John W. Cairns 'Tiberius Coruncanius and the Spread of Knowledge about Law in Early Rome' (1984) Journal of Legal History vol 5 pp 129-135
John W. Cairns 'Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State' (1984) Oxford Journal of Legal Studies vol 4 pp 318-360
John W. Cairns 'Institutional Writings in Scotland Reconsidered' (1983) Journal of Legal History vol 4 pp 76-117
John W. Cairns 'Comparative Law, Unification and Scholarly Creation of a New Ius Commune' (1981) Northern Ireland Legal Quarterly vol 32 pp 272-283
John W. Cairns 'Slavery without a Code Noir: Scotland 1700-78' in Felix M Larkin & N M Dawson (eds) Lawyers, the Law and History: Irish Legal History Society Discourses and other Papers, 2005-2011 (Four Courts Press, 2013) pp. 148-178
Abstract: This chapter explores how Scots maintained a system of slavery when slavery was ambiguously legal in Scotland drawing on Imperial experience
John W. Cairns 'Freeing from Slavery in Eighteenth-Century Scotland' in Burrows, Andrew, Zimmermann, Reinhard, Johnston, David (eds) Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford University Press, 2013) pp. 367-381
Abstract: This paper examines the evidence on freeing slaves in eighteenth-century Scotland. It shows how colonial practices were followed and adapted, and also examines the significance of baptism.
John W. Cairns 'The Definition of Slavery in Eighteenth-Century Thinking: Not the True Roman Slavery' in Jean Allain (eds) The Legal Understanding of Slavery: From the Historical to the Contemporary (Oxford University Press, 2012) pp. 61-84
Abstract: This paper explores issues around defining slavery, showing the problems in eighteenth century Scotland through a detailed examination of arguments in certain crucial cases and how the arguments were developed in ways mirrored in some contemporary debates. Roman law provided a touchstone for 'true slavery'.
John W. Cairns 'The History and Development of Scots Law' in Mark A. Mulhern (eds) Scottish Life and Society. A Compendium of Scottish Ethnology. Vol. 13: the Law (John Donald in Association with The European Ethnological Research Centre, 2012) 62-88
Abstract: Overview of the history an development of Scots law from 1000 to date.
John W. Cairns 'John Millar and Slavery' in Neil Walker MacCormick's Scotland (Edinburgh University Press, 2012) pp. 73-106
Abstract: This paper explores the writing and development of chapter 5 of Millar's Origin of the Distinction of Ranks, dealing with servants, showing how he devloped the text in relationship to his lectures, and the anxieties he displayed in his correspondence with his publisher
John W. Cairns 'English looters and Scottish lawyers: the ius commune and the College of Justice' in Harry Dondorp, Jan Hallebeek, Tammo Wallinga, Laurens Winkel (eds) Ius Romanum - Ius Commune - Ius Hodiernum: Studies in Honour of Eltjo Schrage on the occasion of his 65th birthday (Scientia Verlag, Amsterdam & Aalen, 2010) pp 49-59
John W. Cairns, Paul J. du Plessis 'Introduction' in John W. Cairns, Paul J. du Plessis The Creation of the Ius Commune: From Casus to Regula (Edinburgh University Press, 2010) pp. 1-5
Abstract: The Roman jurists defined what a rule (regula) was. The introduction considers this and relates it to the existing literature, its strengths and weaknesses, and the contributions to the volume.
John W. Cairns 'Scotland' in Katz, Stanley (eds) The Oxford International Encyclopedia of Legal History (Oxford University Press, 2009) vol. 5, pp. 196-203
John W. Cairns 'Natural Law, National Laws, Parliaments and Multiple Monarchies: 1707 and Beyond' in Knud Haakonssen and Henrik Horstboell (eds) Northern Antiquities and National Identities. Perceptions of Denmark and the North in the Eighteenth Century (Historisk-filosofiske Meddelelser 101) (Royal Danish Academy of Sciences and Letters, 2008) pp. 88- 112
Abstract: In contrast to Denmark, Scotland was the junior partner in the British state. Yet politics and circumstances allowed preservation of a legal system, different from England because of the role of Roman law, in conrtrast to Denmark which emphasised a uniquely Danish law. Thoroughteh eighteenht century, Scotland mainatined a significant measure of independence within Britain.
John W. Cairns, Paul J. du Plessis 'Introduction: Themes and Literature' in John W. Cairns, Paul J. du Plessis Beyond Dogmatics: Law and Society in the Roman World (Edinburgh University Press, 2007) pp. 3-8
Abstract: Introduces the current debate about law and society in the Roman World discussing some of the recent literature
John W. Cairns 'Knight v. Wedderburn' in David Dabydeen, John Gilmore and Cecily Jones (eds) The Oxford Companion to Black British History (Oxford University Press, 2007) pp. 244-246
Abstract: This discusses the case of 1778 that established that black people could not be held as slaves in Scotland
John W. Cairns 'Law Books, 1707-1918' in Susan Manning & Ian Brown (eds) The Edinburgh History of Scottish Literature, Vol. 2: Enlightenment, Britain and Empire (1707-1918) (Edinburgh University Press, 2006) pp. 191-197
Abstract: This chapter discsusses the development of the literature and boooks of Scots law through the Enlightenment and Empire to the Great War
John W. Cairns 'The Development of Comparative Law in Great Britain' in Mathias Reiman and Reinhard Zimmermann (eds) The Oxford Handbook of Comparative Law (Oxford University Press, 2006) pp. 131-173
Abstract: This provides a newly researched, fresh account of the development of comparative law as a scholarly and practical discipline in Great Britain from around 1860 to the present day, stressing the significance o its development of the Empire and its decline
John W. Cairns 'Slavery and the Roman Law of Evidence in Eighteenth-Century Scotland' in Andrew Burrows and Lord Rodger of Earlsferry (eds) Mapping the Law: Essays in Memory of Peter Birks (Oxford University Press, 2006) pp 599-618
Abstract: This chapter focuses on slavery, which was a recognized part of Roman society, and discusses the problems which it caused in the very different social conditions of 18th-century Scotland. The pursuer in a divorce action wished to call a slave from the Caribbean to give evidence of his wife's adultery. The ensuing legal debate about the competence of a slave to give evidence is analysed and it is shown how the very fact that Scots law did not recognize or regulate slavery led to uncertainty and potential confusion. DOI:10.1093/acprof:oso/9780199206551.003.0033
John W. Cairns 'From Claves Curiae to Senators of the College of Justice: Changing Rituals and Symbols in Scottish Courts' in Reiner Schulze (eds) Symbolische Kommunikation vor Gericht in der Frühen Neuzeit (Duncker & Humblot, 2006) 251-67
Abstract: This chapter examines the structure of medieval Scottish courts and considers the symbolism of that structure, particularly the symbolism of fencing, before examining how these structures and symbols changed under the impact of the European ius commune, examining in particular the rituals and symbols surrounding admission as a lawyer before the court.
John W. Cairns 'Revisiting the Foundation of the College of Justice' in Hector MacQueen Miscellany Five (Stair Society, 2006) pp. 27-50
Abstract: A reassessment of the Foundation of the College of Justice that contests the established view about the history of the foundation by a close reading of the documents of foundation suggesting the plan to found the College originated in Scotland, probbaly thought out by the Chancellor, Gavin Dunbar, and was a deliberate attempt to creat a modern court.
John W. Cairns 'Droit écossais, ius commune et le développement du droit privé européen' in Alain Wijffels (eds) Le Code civil entre ius commune et droit privé européen (Bruylant, 2005) 117-147
Abstract: After considering the historiography of mixed systems and the relevant history of Scots law, this paper considers what lessons the history of Scots law offers for the future of private law in Europe
John W. Cairns 'Legal Theory' in Alexander Broadie (eds) The Cambridge Companion to the Scottish Enlightenment (Cambridge University Press, 2003) pp. 222-242
Abstract: There are three significant features of legal theory in the Scottish Enlightenment: the engagement of the legal profession; the concern with history; and the support for law-making through the decisions of the courts. The chapter discusses: natural law, legal education, and Scots law; the form of process and natural law; and natural law, moral sense, history and law.
John W. Cairns '"The Dearest Birth Right of the People of England" The Civil Jury in Modern Scottish Legal History' in John W. Cairns, Grant McLeod (eds) The Dearest Birth Right of the People of England. The Jury in the History of the Common Law (Hart, 2002) pp. 1-15
Abstract: This paper considers the ideological and practical significance of the introduction of the civil jury to Scotland in the early nineteenth century, placing it in the context of the development of Scots law and procedure in the Court of Session and the ius commune and assessing the significance for it of the development of moral theory in eighteenth-century Scotland.
John W. Cairns 'The Moveable Text of Mackenzie: Bibliographical Problems for the Scottish Concept of Institutional Writing' in John W. Cairns, O. F. Robinson (eds) Critical Studies in Ancient Law, Comparative Law and Legal History (Hart Publishing, 2001) pp. 235-248
Abstract: This explores the implications of the develpment of the text of MacKenzie's Institutions of the Law of Scotland both between and within editions. It raises queries about the viability of the Scottish idea of an institutional writing as a formal source of law
John W. Cairns 'John Millar, Ivan Andreyevich Tret'yakov, and Semyon Efimovich Desnitsky: A Legal Education In Scotland, 1761-1767' in Tatiana Artemieva, Peter Jones, Michael Mikeshin (eds) Russia and Scotland in the Enlightenment (St Petersburg Centre for the History of Ideas, 2001) pp. 20-37
Abstract: This discusses the experiences of two russians who studied law with John Millar in Glasgow in the early 1760s, explores Millar's early development of the curriculum in Law at Glasgow and points out some promising areas for research, where the Russians' experience of this education in Glasgow influenced their work in Russia.
John W. Cairns 'Historical Introduction' in Kenneth Reid, Reinhard Zimmermann (eds) A History of Private Law in Scotland, vol 1: Introduction and Property (Oxford University Press, 2000) 14-184
Abstract: This chapter attempts to trace the changing nature of Scots law, focusing on its main institutions and taking into account the history of politics, social and economic life, and philosophy. The story is told from the emergence of the Scottish kingdom in 1832. By this date, the basic architecture and much of the sculptural detail of Scots law was in place. An epilogue to this chapter reviews some subsequent developments. The picture that emerges is not one of 'false starts'. Nor is it one of simple continuity. In fact, the historical reality is too complex to reduce to simple descriptions or metaphors. DOI:10.1093/acprof:oso/9780198267782.003.0002
John W. Cairns 'James Muirhead, Teacher, Scholar, Book Collector' in John W. Cairns, Christian Verbeke (eds) The Muirhead Collection Catalogue (Belgische Commissie voor Bibliographie en Bibliologie, 1999) pp. 1-32
Abstract: This is an account of the life and work of James Muirhead, Professor of Civil Law in the University of Edinburgh. Educated in Edinburgh and Heidelberg, Muirhead did much to introduce the new German scholarship in Roman law into the United Kingdom. Active in Edinburgh University affrom 1862, he was an important book collector and produced some intersting works of scholarship. From being influnced by the German Pandektenrecht, he moved to a more hsitroical approach to Roman law, as is evidenced in his history of Roman law and edition of Gaius.
John W. Cairns 'The Civil Law Tradition in Scottish Legal Thought' in D. L. Carey Miller, R. Zimmermann (eds) The Civilian Tradition and Scots Law: Aberdeen Quincentenary Essays (Duncker and Humblot, Berlin, 1997) pp.191-223
John W. Cairns 'A History of the Faculty of Advocates to 1900' in (eds) Stair Memorial Encyclopaedia (Butterworths and the Law Society of Scotland, 1996) (1992) vol. 13, pp. 499-536
John W. Cairns 'Importing our Lawyers from Holland: Netherlands' Influences on Scots Law and Lawyers in the Eighteenth Century' in (eds) Scotland and the Low Countries, 1124-1994: Mackie Monograph 3 (Tuckwell Press, 1996) 136-153
John W. Cairns 'Roman Law and the Scottish Legal Curriculum' in Hector MacQueen Scots Law into the 21st Century: Essays in Honour of W. A. Wilson (W. Green / Sweet & Maxwell, 1996) pp.28-38
John W. Cairns 'Scottish Law, Scottish Lawyers and the Status of the Union' in John Robertson (eds) A Union for Empire: Political Thought and the British Union of 1707 (Cambridge University Press, 1995) 243-268
John W. Cairns ''As Famous a School for Law as Edinburgh for Medicine': The Glasgow Law School, 1761-1801' in Hook, Andrew and Sher, R. B. (eds) The Glasgow Enlightenment (Tuckwell Press, 1995) pp. 133-159
John W. Cairns 'Adam Smith and the Role of the Courts in Securing Justice and Liberty' in Robin Paul Malloy and jerry Evensky (eds) Adam Smith and the Philosophy of Law and Economics (Kluwer, 1994) 31-61
John W. Cairns 'Adam Smith's Lectures on Jurisprudence: Their Influence on Legal Education' in Mizuta, Hiroshi and Sugiyama, Chuhei (eds) Adam Smith: International Perspectives (St Martin's Press, 1993) pp. 63-83
John W. Cairns 'The Origins of the Glasgow Law School: The Professors of Civil Law, 1714-1761' in (eds) The Life of the Law: Proceedings of the Tenth British Legal History Conference Oxford 1991 (Hambledon Press, 1993) pp. 151-195
John W. Cairns 'Hamesucken and the Major Premiss in the Libel 1672-1770: Criminal Law in the Age of Enlightenment' in Hunter, Robert F. (eds) Justice and Crime: Essays in Honour of the Right Honourable the Lord Emslie M.B.E., P.C., L.L.D., F.R.S.E. (T. & T. Clark, 1993) pp. 138-179
John W. Cairns 'The Influence of Smith's Jurisprudence on Legal Education in Scotland' in JOnes, Peter and Skinner, Andrew (eds) Adam Smith Reviewed (Edinburgh University Press, 1992) pp. 168-189
John W. Cairns 'John Spotswood, Professor of Law: A Preliminary Sketch' in Gordon, W. M. (eds) Miscellany Three (Stair Society, 1992) pp. 131-159
Hector MacQueen, John W. Cairns, T. D. Fergus 'Legal humanism and the history of Scots law: Sir John Skene and Thomas Craig' in John MacQueen (eds) Humanism in Renaissance Scotland (Edinburgh University Press, 1990) 48-74
Abstract: Also as 'Legal Humanism in Renaissance Scotland' (1990) in Journal of Legal History xi 40-69
John W. Cairns 'Sir George Mackenzie, the Faculty of Advocates, and the Advocates' Library' in John W. Cairns, George Mackenzie and Alex Cain (eds) Oratio inauguralis in aperienda jurisconsultorum bibliotheca (Butterworths, Faculty of Advocates, 1989) pp. 18-36
John W. Cairns 'Craig, Cujas, and the Definition of feudum; Is a Feu a Usufruct?' in Birks, Peter (eds) New Perspectives in the Roman Law of Property: Essays for Barry Nicholas (Oxford University Press, 1989) pp. 75-84
John W. Cairns 'The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates' in Neil MacCormick, Peter Birks (eds) The Legal Mind: Essays for Tony Honore (Oxford University Press, 1986) pp. 253-277
Papers and Presentations
John W. Cairns 'Teaching Criminal Law in 18th-Century Scotland' presented at Gerald Gordon Conference on Criminal law, Univeristyof Glasgow, 6-7 June, 2013
Abstract: This examined the consequences of the use of textbooks to teach and the strategies adopted by some professors to offer a satisfactory course on criminal law
John W. Cairns 'The Expedition of Betty Marlboro: Empire and Sentiment in Eighteenth-Century Scotland' presented at Scotland,, Europe and Empire in the Age of Adam Smith and Beyond, Eighteenth-Century Scottish Studies Society, 3-6 July, Paris, 2013
Abstract: Alexander Hall of Dunglass died in December 1764, leaving a young natural daughter in Sumatra. The Halls of Dunglass arranged for her to be brought to Scotland to be raised, accompanied by a slave, Betty Marlboro. The paper explores the issues of emotion, sentiment, gender within the context of Empire.
John W. Cairns 'Natural Law and Education in Roman Law in Eighteenth-Century Scotland' presented at From Natural Law to Human Rights: a conference in honour of Knud Haakonssen,, HiltonHotel, Brighton, 11-13 October, 2012
Abstract: This paper examined the role of Natural law in Legal Education in 18th-century Scotland, considering textbooks and lectures
John W. Cairns 'Newspapers, Slaves, and Identities in Eighteenth-Century Scotland' presented at Media & Mediation in Eighteenth-Century Scotland: Voices, Manuscripts and "Guid Black Prent", Eighteenth-Century Scottish Studies Society, 12-15 April, Columbia, South Carolina, 2012
Abstract: Through study of the advertisements for sales of slaves and runaway slaves in eighteenth-century Scotland, we can start to understand how Scots understood and perceived the men and women of African and Indian descent held as slaves in Scotland. These advertisements were in some cases rather formulaic, and undoubtedly reflect colonial advertising practice. Also, they do not necessarily produce an accurate sample of the black or Indian experience of enslavement in Scotland. Nonetheless, they offer enough that is novel to help us move towards an understanding of the unique reality of black and Indian slavery in eighteenth-century Scotland, and to grasp the circumstances of their lives. Through their study we can also see how the wider Scots community understood these individuals in their midst, an understanding that reflects back to illuminate the eighteenth-century slave-owning Scots themselves.
Karen Baston, John W. Cairns 'Natural Law in Scotland' presented at Natural Law 1625-1850, Copenhagen 4-5 October, 2012
Abstract: This paper raised some issues about how the collection of material relating to natural law in Scotland is to be understood, talked of how a way forward might be found, and explored some current possibilities reflecting the progress already made in collecting material
John W. Cairns 'Slaves and Slaveowners in Eighteenth-Cent​ury Scotland' presented at Centre for Scottish and Celtic Studies Research Seminar with the Andrew Hook Centre for American Studies, University of Glasgow, 20 November, 2012
Abstract: This paper explored who were held as enslaved in eighteenth-century Scotland ad who held them. As well as exploring the how, why and where, the paper attempted to explore the emotional and psychological aspects.
John W. Cairns 'Blackstone in the Bayous' presented at Re-Interpreting Blackstone's Commentaries: The Evolution and Influence of a Seminal Text in National and International Context, Adelaide, 6 December, 2012
Abstract: This paper examined the drafting of the Digest of the Civil Laws of the Territory of Orleans, noting the influence of Blackstone both on individual articles and on the structure of the first book.
John W. Cairns 'Colonial Practices: Mediating Slavery in Eighteenth-Century Scotland' presented at Australia abd new Zealand Legal History Society Annual Conference: Receiving Laws/Giving Laws, Sydney, NSW, 10-12 December, 2012
Abstract: This paper examined how Scots law managed the presence in Scotland of enslaved men and women of African and Indian origin. It did so through adopting assumptions about the position of African and Indian people acquired through enthusiastic Scottish participation in the first British Empire. Scots law did not explicitly endorse slavery, though it probably came closer to doing so than English law; but it obtained enough ambiguity that allowed colonial legal practices to translocate to Scotland, and thereby create a working regime supportive of holding Africans and Indians as enslaved, with mechanisms for sale, transmission by inheritance, and emancipation. Colonial assumptions became embedded in Scottish legal practice, through a set of social and racial assumptions endorsed in particular by a legal profession greatly implicate in in slave-owning on Scotland and particularly in the Caribbean. This translocation of colonial practices allowed Scots law, drawing on an ambiguous doctrinal background, to mediate between the tensions created by the presence of enslaved individuals in a country and jurisdiction that did not explicitly endorse slavery and in which the inhabitants considered themselves as a free people. The tensions were finally resolved by Scotland's "free soil" case, Knight v. Wedderburn (1778), which used anthropological and historical evidence to challenge a natural-law based argument in favour of slavery, and which led to a general forgetting of the support slavery once received.
John W. Cairns 'Not the True Roman Law' presented at The Legal Parameters of Slavery: Historical to the Contemporary, Harvard University, Cambridge Mass, 2011
Abstract: Roman Law provided a touchstone by which lawyers in the eighteenth century sought to identify slavery or distinguish other forms of coerced labour from it.
John W. Cairns 'Roman Law and Scottish Slavery' presented at Ancients and Moderns in the Scottish Enlightenment, Edinburgh, 2011
Abstract: This paper discussed the use of Roman law in the Scottish Enlightenment to understand the position of men and women of African and Indian descent held as slaves in Scotland
John W. Cairns 'Planning and Printing a Code/Digest' presented at Louisiana: The Legal History of Europe in a Single US State, Edinburgh, 2011
Abstract: Examination of the legislative and political background to the Digest of 1808 and consideration of its printing
John W. Cairns 'The Impact of Somerset's Case in Scotland' presented at Thomas Reid, William Cullen and Adam Smith: The Science of Mind and Body in the Scottish Enlightenment - ECSSS, Princeton Theological Seminary, 24-27 June 2010, 2010
Abstract: This paper explored the impact of Somerset's case in Scotland, considering the discussion in the newspapers, and its influence on black people in Scotland
John W. Cairns 'Not the True Roman Slavery' presented at Symposium: Considering the Parameters of Slavery, Rockefeller Foundation Bellagio Confernce Centre, Bellagio Italy, 1-3 September, 2010
Abstract: Historically, Roman slavery was held up as the ideal of a complete regime of slavery and allowed arguments to be presented that others forms of involuntary servitude were not "true" slavery.
John W. Cairns 'National, Transnational, and European Legal Histories: Paradigms and Problems' presented at Writing Legal History: Breaking out of National Frameworks, Maison Francaise d'Oxford, 7 May, 2010
Abstract: This paper explored the advantages and problems of writing legal history, considering national, European and transnational approaches, drawing on evidence form tthe leagl histories of Scotland and Louisiana
John W. Cairns 'David Daube's Roman Law at Aberdeen' presented at David Daube Centenary Celebration Meeting, King's College, University of Aberdeen 27-28 February, 2009
John W. Cairns 'Slavery without a Code Noir: Scotland, 1700-1778' presented at Erasmus Centre for Early Modern Studies, University of Rotterdam, Research Seminar, Rotterdam,, 2008
Abstract: This Research Paper explored how a private regime of slavery was operated in Scotland, and the problems and successes of such a regime.
John W. Cairns 'Maintaining Slavery without a Code Noir: Scotland 1700-1778' presented at Irish Legal History Society, Spring Address, 21 February, Belfast, 2008
Abstract: This address examined how, in the face of the law's ambiguity, Scots maintained slavery in a private regime.
John W. Cairns 'The de la Vergne Volume and the Digest of 1808' presented at AN INTERNATIONAL COLLOQUIUM Celebrating the Bi-Centennial of the Louisiana Civil Code 1808-2008, New Orleans, 2008
Abstract: This paper explored the significance of the de la Vergne volume and related manuscripts and their link with the Digest of Orleans of 1808. It considered thepurpose and function of the manuscript in historical context.
John W. Cairns 'Slaves and Slave-Owners in Eighteenth-Century Scotland' presented at Scotland, Slavery and Abolition, Edinburgh, 2007
Abstract: This paper examined the origins of individuals held as enslaved in eighteenth-century Scotland, considering who claimed to own them, the work they did, and the issues of gender and age before assessing the nature of relations between master and enslaved servant.
John W. Cairns 'Alexander Cunningham, Book Dealer' presented at To Collect the Minds of the Law: Rare Law Books, Law Book Collections and Libraries: An International Symposium, Malmö, Sweden, 2007
Abstract: This discussed Alexander Cunningham's Social and intellectual role as a book dealer
John W. Cairns 'Slaves and Slave-Owners in Eighteenth-Century Scotland' presented at "You have nothing to lose but your chains", History Research Seminar University of Dundee, 7 March, Dundee, 2007
Abstract: This paper examined the lives off black and Indian men and women held as slaves in Eighteenth-century Scotland. It considered the relationships between slaves and masters/mistresses. It further raised issues about how this reflected on the movement to abolish the slave-trade.
John W. Cairns 'The Origins of the Edinburgh Law School' presented at American Society for Legal History, Baltimore, November 16-18, 2006
Abstract: This explored the foundation of the first chair of law in Edinburgh and the appointment to it of Charles Erskine (or Areskine). It challenged received views of the foundation and placed it in intellectual and political context.
John W. Cairns 'Colonial Slave Apprentices in Eighteenth-Century Scotland' presented at Scottish History Seminar, Edinburgh, Edinburgh, 16 March, 2006
Abstract: This paper examined the role of black slave sin Scotlandin an Atlantic context, focusing on a detailed study of slave apprentices in Scotland
John W. Cairns 'Enforced Sojourners under Grey Skies: Black Apprentices in Eighteenth-Century Scotland' presented at Pan-Atlantic Scottishness - 20th Anniversary Conference: Eighteenth-Century Scottish Studies Society., Williamsburg, Virginia, 2006
Abstract: Alan Karras' excellent work, Sojourners in the Sun, examined Scottish migrants in the Jamaica and the Chesapeake, 1740-1800, who generally went to the transatlantic colonies to make money to enhance or maintain their status in Scotland, to which they intended to return. This paper will examine an opposite flow of people: black slaves sent to Scotland from the West Indies and the North American Colonies to be taught a trade. While it is known of black men and women who came to Scotland as personal servants with their masters from the colonies (most famously, Joseph Knight), this paper will examine a small number of individuals sent from the colonies to be trained in Scotland in a useful trade that would enhance their value in the colonies. A number of such individuals can be found apprenticed in Scotland. This paper, deriving from my continuing research project on black men and women held as slaves in eighteenth-century Scotland, will consider their lives and experiences and the reasons that led their masters to send them to Scotland.
John W. Cairns 'The Union of 1707 and legal education: The Foundation of the Edinburgh Chair of Public Law' presented at The Union of 1707: Causes, Contexts and Consequences, University of Glasgow, 20 October, Law and Scottish Studies, 2006
Abstract: In 1707, the first Chair in Law in the University of Edinburgh was founded. The context was the Union negotiations. The paper explores this, demonstrating who founded the chair, why it was founded, and why the first professor was appointed.
John W. Cairns 'Natural law, Parliaments, and Multiple Monarchy: 1707 and Beyond' presented at Danish Identities: British, French and Domestic Perceptions during the Eighteenth Century. A Symposium at the Royal Danish Academy of Sciences and Letters, Copenhagen, 2005
Abstract: Denmark was a conglomerate state, while the Briitish Isles had a multiple monarchy. How did this cash out in terms of law - why did Scotland preserve its own law, how did differing theories of natural law affect this?
John W. Cairns 'Slavery, Roman Law, and the Scottish Law of Evidence' presented at Society of Legal Scholars Annual Conference, 2005, University of Strathclyde, Glasgow, 2005
Abstract: This disccusses the problem of an alleged slave giving evidence in a legal system where individuals are held as slaves, but in which slavery is not regulated
John W. Cairns 'Discussant, Panel on Roman Law' presented at American Society for Legal History, Cincinnati, 2005
Abstract: This was an assessment of papers on Roman Litigation, Roman lease transactions in granaries, and the Influence of Quinitillian in 19th-century America. It emphasised the significance of the Sulpician archive and the importance of imaginative but sensitive use of sources.
John W. Cairns 'The Scottish Law of Slavery' presented at Annenberg Distinguished Speaker, Dept. of History, Univesity of Pennsylvania, Philadelphia, Pa., 2005
Abstract: This examined the presence of black slaves in eighteenth-century Scotland and how the legal regime dealt with them, until a series of test cases leading to Knight v. Wedderburn.
John W. Cairns 'From Claves Curiae to Senators of the College of Justice - Changing Rituals and Symbols in Scottish courts' presented at Symbolische Kommunikation vor Gericht (15.-18.Jh), 2005
Abstract: While once Scottish Court involved fencing and calling of suits, in the sixteenth century other rituals, deriving form the Ius Commune came to predominate symboliisnga profound shift in the nature of Scots law
John W. Cairns 'Civil Law and Scotland's Identity' presented at Scots Law and Culture Symposium, University of Aberdeen, 2004
Abstract: This paper discussed the value placed on Roman law as a mark of the distinctive nature of Scots law in the early nineteenth century. It focused on Henry Brougham's criticism of the knowledge of Roman law among the Scots, explaining why his remarks caused such anger and were seen as threatening the integrity of Scots law. Defences inlcuded discussion of Scottihs knowledge of the nascent German Historical School.
John W. Cairns '"I am too much in Scotland here" - Scottish Archives and the History of Law-Teaching in the Northern Netherlands, 1675-1765' presented at Workshop: Scottish Sources in the Netherlands, Dutch Sources in Scotland, AHRB Centre for Irish and Scottish Studies, University of Aberdeen, 2004
Abstract: Scottish archives contain much informationon legal eductaion in the Netherlands, in letters, books, and student notes.
John W. Cairns 'The Evidence of Black Slaves in Scotland During the Eighteenth Century, A Problem of Roman Law' presented at Formes de Dépendance: Asservissement et Esclavage dan le Monde Antique, São Paulo - Rio de Janeiro, Brasil, 2004
Abstract: Until 1778 and the decision in favour of freedom in Scotland by the Court of Session in the case of Knight v. Wedderburn, a number of black men and women can be traced as held as slaves in eighteenth-century Scotland. The lower courts had hitherto accepted this position and litigation before the Court of Session itself had also at one stage threatened to accept their status as slaves. The problem was that, if, as was argued, slavery was compatible with the law of Scotland and endorsed by the ius gentium and (some at least argued) by the ius naturae, and hence potentially recognisable in Scotland, the law made no provision for the further regulation of the details of slavery. This created problems about, for example, manumission of a slave. How did a freed slave show he was free? Masters developed a variety of ruses to generate a document that showed that the black individual who held it was free. Another problem that arose related to evidence or testimony in court. Here were two problems. First, not all slaves were baptised as Christians, and hence could not take the oath necessary to give testimony. Secondly, while the state of dependence of the slave made him or her potentially not a "habile" witness, more significantly, did their status as unfree prevent such an individual from being a witness at all? These issues arose in litigation in the early 1770s in divorce litigation before the Commissary Court in Edinburgh, where a party to an action for divorce called an alleged slave as a witness. The lack of regulation of slavery meant that the court was in a quandary as to what to do. The paper will explore this issue and how the reference to Roman law, still considered as a potential source, was not found helpful, given that the Roman legal texts required that slaves generally give evidence under torture. It will thus demonstrate the problems that arose from the acceptance at some level of slavery, but without any supporting legal institutions.
John W. Cairns 'Leiden and Scots Lawyers' presented at Scotland in the Netherlands 2004: Scottish/Dutch Legal Conference, Leiden University, Faculty of Law, 2004
Abstract: Why did Scots study in the Netherlands in such numbers between 1675 and 1750? Which universities did they prefer? What did they study? What were their experiences both academic and otherwise?
John W. Cairns 'Revisiting the Foundation of the College of Justice' presented at Scottish Legal History Group, 2004
Abstract: This reassesses the sources relating to the above and produces a new history of the event superseding that of Hannay
John W. Cairns 'Attitudes to Codification and the Scottish Science of Legislation' presented at Common Law und europäische Rechtsgeschichte, Hesse, Germany, 2003
Abstract: This paper traced the Scottish move form an emphasis on lex as the foundation of law to a preference for judicial law-making as likely to bring about a superior quality of law. It explains how Scotland came to develop differently form other countries of the ius commune under the impact of moral theory in the eighteenth century, eventually finding certainty in law in the doctrine of precedent. In the era of codification, security for Scots law was found in the doctrines of F.C. von Savigny.
John W. Cairns '"I am too much in Scotland here", Scots Students in Leiden and Utrecht, 1680-1750"' presented at Scotland and The Netherlands: Workshops on Private Law and the Ius Commune, Old College, Edinburgh University, 2003
Abstract: This paper examined the experience of Scots students in the Netherlands, explaining why they went there to study, exploring their experinces and considering why they stopped going to the Netherlands to study.
John W. Cairns 'The face that did not fit, race, appearance and exclusion from the bar in eighteenth-century Scotland' presented at Freedom, Justice and Equality: Three Pillars of Legal History. International Conference, Southern African Society of Legal Historians, 2003
Abstract: In the early 1780s, the Faculty of Advocates in Edinburgh tried to exclude from membership a man called John Wright. This was partly because of his background. Another reason may have been his remarkable appearance which may have raised questions in individuals' minds about his racial origin and promoted anxieties deriving form the developing science of physiognomy.
John W. Cairns 'Race, Slavery and Law in the Scottish Enlightenment' presented at Robert Gordon University Seminar, 2002
Abstract: The legal system in Scotland was complicit in the holding of black individuals as slaves in Scotland in the eighteenth-century, After 1750, public opinion turned against this to some extent, leading to a litigation. This culminated in the case of Knight v. Wedderburn in 1778
John W. Cairns 'Law, race, and the Advocates of 18th Century Scotland, the Strange Career of John Wright' presented at Enlightenment, Law and Lawyers, University of Glasgow, 2002
Abstract: John Wright was admitted as an advocate in 1783, after some attempts by the Faculty of Advocates to exclude him. In part this was because of his social origins, but it may also have related to Wright's appearance. The issue of his race was considered as were views arising out of the science of physiognomy. Did his face simply not fit?
John W. Cairns 'Ius Commune and Ius Proprium Legal Practice in Sixteenth Century Scotland' presented at University of Stockholm, 2002
Abstract: This paper traced the development form the Scots Medieval Common Law to the development of practice using Romano-Canonical procedure and the concepts of ius commune and ius proprium.
John W. Cairns 'Stoicism, Slavery and Law, Grotian jurisprudence and its Reception' presented at Grotius and the Stoa:, Gorinchem, 2001
Abstract: Grotius presented a theory of slavery founded on the law of nature and nations that exercised considerable influence throught he seventeenth and eighteenth centuries.
John W. Cairns 'Civil Law in Scotland, ca 1600' presented at Civil Law Workshop, University of Aberdeen, Centre for Civil Law, 2001
Abstract: This discussed Scots law in relationship to the concept of the ius commune, raising issues about the role of canon law after the reformation, witha specific study of Thomas Craig
John W. Cairns 'Ius Commune, Ius Proprium, Legal Practice in Sixteenth-Century Scotland' presented at Colloquium on the Civilian Tradition, Institute of Advanced Legal Studies, London, 2001
Abstract: This examined the development of the ius commune in Scotland with the growth of the College of Justice, focusing in particular on the evidence of Sinclair's Practicks.
John W. Cairns 'Race, Slavery and Law in the Scottish Enlightenment' presented at Glasgow Faculty of Law Seminar, University of Glasgow, 2001
Abstract: In the eighteenth century Scotland developed a law of slavery at a practising level, which was challenged several times without success in the court of Session until the case of Knight v Wedderburn.
John W. Cairns 'Why the Scots came to prefer Cases to Legislation' presented at Scottish LegalHistory Group, Advocates' Library, 2000
Abstract: This discussed the influence of legal philosophy and the development of the courts to explain why by the end of the eighteenth century the Scots had moved towards a case-law system
John W. Cairns 'La responsiabilidad por acto ilícito en el derecho ingles y en el derecho escocés in English as Delictual and Tortious Liability in Scots law and English law' presented at Jornadas Internacionales de Derecho Romano, Universidad de Valladolid, 2000
Abstract: An account of the history of the development of tortious and delictual liability, focusing on the concept of duty of care
John W. Cairns 'John Millar, Ivan Andreyevich Tretyakov, and Semyon Efimovich Desnitsky, A Legal Education in Scotland, 1761-1767' presented at Scotland and Russia in the Enlightenment, Institute for Advanced Studies in the Humanities, Edinburgh, 2000
Abstract: This discusses the experiences of two russians who studied law with John Millar in Glasgow in the early 1760s, explores Millar's early development of the curriculum in Law at Glasgow and points out some promising areas for research, where the Russians' experience of this education in Glasgow influenced their work in Russia.