parent reasons for their position but he discounts them as irrelevant to the present case. For his client, the defendant,he urges much authority and it is all statutory with one minor exception.The authorities whom he cites are to Justinian’s Digest, the exception being to the Accursian Gloss on the Digest.The Digest was promulgated by the Byzantine Emperor, Justinian 1 in 533, and the reference to the gloss is in fact to a commentary on the Digest.Thus, the sources cited for Mackenzie’s clients were all foreign with no statutory backing for Scotland. So here, as elsewhere, we have a factory for interpretation but it is foreign statutory law and the decision becomes Scottish interpretation. The text is from Ulpian’s book8 on the Edict. So it is a commentary on legislation.Hence, it should be classed – in its original form – as juristic interpretation. But Ulpian was a prominent official under Severus and Caracalla, and the text became legislation in the Byzantine Emperor Justinian’s Digest. This legal situation was common in much of western Europe: for me most noticeably in mediaeval and later Italy and in the Dutch Republic in the 17th century. The Reception was the work of the jurists not legislation. Thus, we have a fascinating and complex legal situation. It would appear that the Twelve Tables of around 451-450 B.C. legislated with a clause like si aqua pluvia nocet. (7.8) and this was interpreted by the jurist, Paul, as if a watercourse conducted through a public place should harm a private person, an action will lie in favour of the private person under the law of theTwelveTables to make good the injury to the owners (d. 43.8.5.). This seems an odd story, yet it is not. In fact, it is everyday. I started with legislation in the 5th century B.C. Rome and finished with 17th century interpretation in Scotland. In between I continued with interpretation in the classical Roman Empire which became statute law in Justinian’s Byzantium. It should be noted that the Reception of Roman law in Scotland was not by legislation but by judicial intervention. It is in fact a common occurrence that a judicial decision in one counting leads on to statute law in others. My favourite case is, again from Scotland, Stevenson v. Donahue [1932] ac. 562.A friend bought a ginger beer in a café in Paisley for a companion who drank some, then poured out some more and a decomposed snail fell out of the stone bottle. Mrs. Donahue, the guest, successfully sued the ginger beer manufacturer, Stevenson, for her injuries (gastroenteritis and nervous alan wat s on 345
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