Published online by Cambridge University Press: 25 October 2017
Alan Watson has shown that there can be found in England the genre of legal literature, known as institutional writings, that, in a seminal article, Klaus Luig had already described for the lands of the ius commune. At much the same time as Watson published his piece, I completed an article on Blackstone's Commentaries in which I demonstrated that it should be classed as an institutional work. It therefore seemed appropriate in this chapter honouring my Doktorvater, and now good friend, to return to this topic that once interested us both very strongly, and which still produces a certain amount of secondary literature.
Shortly after leaving the immediate supervision of Alan Watson, I wrote my first major article on the issue of the relationship between the concept of institutional writing as a particular class of legal writing, and the concept, current in Scotland, of an institutional writing as a formal source of law. There I argued that the concept of an institutional writing as an authoritative source of Scots law – whether or not equivalent in weight to a decision of the Inner House of the Court of Session – was both vague and incoherent. I pointed out that there was no general agreement on the canon of institutional works, and no proper way of identifying an institutional work, in this specialised Scottish sense, other than received (and inconsistent) tradition.
In this chapter I shall return to and develop this theme, bringing forward another reason to doubt the viability of the idea of an institutional writing or, indeed, that of an institutional writer, as a work, or author, of particular authority. I shall do this through an examination of the textual tradition of the Institutions of the Law of Scotland by Sir George Mackenzie first published in 1684. Given Alan Watson's own special interest in this book, it seems particularly appropriate to study it.
Mackenzie's Institutions has been of immense importance in Scottish legal history. It is therefore important to locate the work within Mackenzie's general oeuvre and intellectual concerns.