Legal nationalism, the Royal Commission and devolution: how Scottish legal nationalism influenced the submissions of the legal profession to the Royal Commission on the Constitution 1969-1973, the resulting devolution settlement and modern legal system of Scotland

The lasting significance of both the legal nationalist Cooper-Smith ideology and Royal Commission on the Constitution is frequently misunderstood. The former as a field of scholarship and the latter as a tool for understanding devolution to Scotland. This paper reappraises the significance of both the Cooper-Smith ideology and the Royal Commission by demonstrating an indeterminate link between the two, and the legal nationalist foundation of the devolution settlement. Beginning with the impact of legal nationalism on the post-war education of Scottish law students, the paper demonstrates how a generation of lawyers entered the Scottish legal profession with their early years shaped by Lord Cooper and Professor Sir T. B. Smith. At the same time, a rise in political nationalism in Scotland – which despite sharing elements of legal nationalism was a very different ideology – led to the establishment of the Royal Commission. The paper analyses the progress of the Scottish legal system from the post-war period to the decades following devolution, arguing that the form of devolution built upon the submissions of the legal profession to the Commission acted to once again complete the Scottish legal system, which once again had a legislature and executive to complement its centuries-old judiciary. This legal system was now able to enter into constitutional conflicts with the UK government, centred upon the English legal system. It is argued that by understanding devolution through the legal nationalist ideology, the current constitutional challenges facing Scotland and the UK can be better contextualised. This method of analysing devolution demonstrates that constitutional difficulties can both be resolved and created by understanding the underpinning ideology that shaped the modern Scottish legal system.