THE DOCTRINE OF ABUSE OF RIGHTS:
Perspective from a Mixed Jurisdiction

The doctrine of abuse of rights, found in various guises in Civil Law jurisdictions, refers to the concept that the malicious or antisocial exercise of otherwise legitimate rights can give rise to civil liability. The assumption often made by comparative lawyers is that this doctrine can be looked to as an indicium of Civil Law/Common Law difference, in that it is generally found in Civil Law systems and modern civil codes, but is absent from Common Law systems. This article examines the approach to the doctrine in Scotland, a mixed jurisdiction on the edge of Europe, and, in conclusion, reflects upon whether this apparently straightforward distinction may be sustained.

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1. Scots lawyers a-whoring after strange gods

2. Rejection of aemulatio vicini: A strange god?

3. Aemulatio vicini in the Scots Institutional writers

4. Aemulatio vicini in the case-law

5. A false god for English law?

6. Mixed jurisdictions

7. Comparative conclusions

Notes