alan wat s on 339 he di st inct ion betwe en legislation and interpretation Tseems simple.This is most obviously so in a codified system when the article of the code can be set out, followed by judicial cases, and perhaps learned articles,printed with a different type face. Difficulties for understanding appear greater in an uncodified system especially when legislation is sparse. In this paper I wish to examine the problem of “rain water” with emphasis on one case from17th century Scotland which was undergoing a strong reception of Roman law. The issue for us first becomes apparent from a text of the Roman jurist Pomponius in the early Empire: Thus,a statute of the5th centuryb.c.which was clearly worded has been interpreted with a very different meaning. Clearly, no intervening statute had appeared.This is typical: governments are not much interested in making private law. In this talk I wish to discuss only one case and, at that, only one speech, for the defendant.The speech is that of Sir George Mackenzie: Haining being prejudged by a Lake which overflow’d his Ground, and which by its Nearness to his House, did,as is ordinary for standingWaters impair very much the Health of his Family:He did therefore open Legislation and Interpretation: Scotland in the 17th Century: RainWater d. 40.7. 21 pr. . . .Thus, even the words of the law of theTwelveTables, the old jurists (veteres) interpreted “if rain water does damage” as “if it can do damage.” for haining against the fishers upon tweed. how far a man may u s e h i s own, tho’ to th e p re j ud i c e of h i s ne i ghbour s?
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