Scotland

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Scots law is the legal system of Scotland. Considered a hybrid or mixed legal system, with a mixture of civil law and common law elements, it traces its roots to a number of different historical sources.^[1][2] Together with English law and Northern Ireland law, it is one of the three legal systems of the United Kingdom.^[3] It shares some elements with the two other systems, but it also has its own unique sources and institutions.

Early Scots law before the 11th century consisted of a mixture of different legal traditions of the various cultural groups that inhabited the country at the time, the Picts, Gaels, Britons, Anglo-Saxons and Norse. The introduction of feudalism from the 11th century and the expansion of the Kingdom of Scotland established the modern roots of Scots law, which was gradually influenced by other, especially continental, legal traditions. Although there was some indirect Roman law influence on Scots law the direct influence of Roman law was slight up until around the 15th century. After this time, Roman law was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and Roman law was in this way partially received into Scots law.

Scots law recognises four sources of law: legislation, legal precedent, specific academic writings and custom. Legislation affecting Scotland may be passed by the Scottish Parliament, the United Kingdom Parliament, the European Parliament, and the Council of the European Union. Some legislation passed by the pre-1707 Parliament of Scotland is still also valid.

Since the Union with England Act 1707, Scotland has shared a legislature with England and Wales. Scotland retained a fundamentally different legal system from that south of the border, but the Union exerted English influence upon Scots law. In recent years, Scots law has also been affected by European law under the Treaties of the European Union, the requirements of the European Convention on Human Rights (entered into by members of the Council of Europe) and the reconvening of the Scottish Parliament which may pass legislation within all areas not reserved to Westminster, as detailed by the Scotland Act 1998.^[4][5]

Scotland as a distinct jurisdiction[link]

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The United Kingdom is a state consisting of three legal jurisdictions: (a) England and Wales, (b) Scotland and (c) Northern Ireland.^[3] There are substantial differences between Scots Law, English law and Northern Irish law in areas such as property law, criminal law, trusts law,^[6] inheritance law, evidence law and family law while there are greater similarities in areas of national interest such as commercial law, consumer rights,^[7] taxation, employment law and health and safety regulations.^[8]

Some of the more important practical differences between the jurisdictions include the age of legal capacity (16 years old in Scotland, 18 years old in England),^[9][10] the use of 15-member juries for criminal trials in Scotland (compared with 12-member juries in England) who always decide by simple majority,^[11] the fact that the accused in a criminal trial does not have the right to elect a judge or jury trial,^[11] judges and juries of criminal trials have the "third verdict" of "not proven" available to them,^[12][13] and the fact that equity does not exist as a distinct branch of Scots law.^[14]

History[link]

Scots law can be traced to its early beginnings as a number of different custom systems among Scotland's early cultures to its modern role as one of the three legal jurisdictions of the United Kingdom. The various historic sources of Scots law, including custom, feudal law, canon law, Roman law and English law have created a hybrid or mixed legal system.

The nature of Scots law before the 11th century is largely speculative but likely was a mixture of different legal traditions representing the different cultures inhabiting the land at the time, including Celtic, Welsh, Irish, Norse and Anglo-Saxon customs.^[15] There is evidence to suggest that as late as the 17th century marriage laws in the Highlands and Islands still reflected Celtic custom, contrary to Catholic religious principles.^[16] The formation of the Kingdom of Scotland and its subjugation of the surrounding cultures, completed with the Battle of Carham, established what is approximately the boundaries of contemporary mainland Scotland.^[17] The Outer Hebrides were added after the Battle of Largs in 1263 and the Northern Isles were acquired in 1469, completing what is today the legal jurisdiction of Scotland.^[18]

From the 11th century feudalism was gradually introduced to Scotland and established feudal land tenure over many parts of the south and east, which eventually spread northward.^[19][20] As feudalism began to develop in Scotland early court systems began to develop, including early forms of Sheriff Courts.

Under Robert the Bruce the importance of the Parliament of Scotland grew as he called them more frequently and its composition shifted to include more representation from the burghs and lesser landowners.^[21] In 1399, a General Council established that the King should hold a parliament at least once a year for the next three years so, "that his subjects are served by the law".^[21][22] In 1318, a parliament at Scone enacted a code of law that drew upon older practices, but it was also dominated by current events and focused on military matters and the conduct of the war.^[23]

From the 14th century we have surviving examples of early Scottish legal literature, such as the Regiam Majestatem (on procedure at the royal courts) and the Quoniam Attachiamenta (on procedure at the baron courts).^[24] Both of these important texts, as they were copied, had provisions from Roman law and the ius commune inserted or developed, demonstrating the influence which both these sources had on Scots law.^[25]

From the reign of King James I to King James V the beginnings of a legal profession began to develop and the administration of criminal and civil justice was centralised.^[26] The Parliament of Scotland was normally called on an annual basis during this period and its membership was further defined.^[27] The evolution of the modern Court of Session also traces its history to the 15th and early 16th century with the establishment of a specialised group of councillors to the King evolving from the King's Council who dealt solely with the administration of justice. In 1528, it was established that the Lords of Council not appointed to this body were to be excluded from its audiences and it was also this body that four years later in 1532 became the College of Justice.^[28]

The Act of Union 1707 unified the Kingdom of Scotland and the Kingdom of England to form Great Britain. Article 19 of the Act confirmed the continuing authority of the College of Justice, Court of Session and Court of Justiciary in Scotland.^[29] Article 3, however, merged the Parliament of Scotland with the Parliament of England to form the Parliament of Great Britain, with its seat in the Palace of Westminster, London.

The Parliament of Great Britain was now unrestricted in altering laws concerning public right, policy and civil government, but concerning private right, only alterations for the evident utility of the subjects within Scotland were permitted. The Scottish Enlightenment then reinvigorated Scots law as a university-taught discipline. The transfer of legislative power to London and the introduction of appeal to the House of Lords (now the Supreme Court of the United Kingdom) brought further English influence. Acts of the Parliament began to create unified legal statutes applying in both England and Scotland, particularly when conformity was seen as necessary for pragmatic reasons (such as the Sale of Goods Act 1893). Appeal decisions by English judges raised concerns about this appeal to a foreign system, and in the late 19th century Acts allowed for the appointment of Scottish Lords of Appeal in Ordinary. At the same time, a series of cases made it clear that no appeal lay from the High Court of Justiciary to the House of Lords. Today the Supreme Court of the United Kingdom usually has a minimum of two Scottish justices to ensure that some Scottish experience is brought to bear on Scottish appeals.^[30]

Scots law has continued to change and develop in the 20th century, with the most significant change coming under devolution and the formation of the Scottish Parliament.