Scots law is a unique legal system The three major legal systems of the world today consist of civil law, common law and religious law. However, each country often develops variations on each system or incorporates many other features into the system which has roots in various different sources of law Law is a system of rules, usually enforced through a set of institutions. Laws can shape or reflect politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and. Up until the mid-tenth century, the law in Scotland was almost certainly Celtic,^[1] but after that point, feudal Feudalism is a political and military system between a feudal aristocracy , and his vassals. In its most classic sense, feudalism refers to the Medieval European political system composed of a set of reciprocal legal and military obligations among the warrior nobility, revolving around the three key concepts of lords, vassals, and fiefs. Although and canon law Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Roman Catholic Church, the Eastern and Oriental Orthodox churches, and the Anglican Communion of churches. The way that such church law gradually took over. On succeeding to the throne in 1124, King David I David I , also called Dabíd mac Maíl Choluim (Modern: Daibhidh I mac [Mhaoil] Chaluim; was Prince of the Cumbrians (1113–1124) and King of Scots (1124–1153) introduced elements of Anglo-Norman laws and legal institutions Scottish legal institutions in the High Middle Ages are, for the purposes of this article, the informal and formal systems which governed and helped to manage Scottish society between the years 900 and 1288, a period roughly corresponding with the general European era usually called the High Middle Ages. Scottish society in this period was, such as sheriffs A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country and justices. Scots law's first known text, Regiam Majestatem, was based heavily on Glanvill's English law English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countriesand the United States . It was exported to Commonwealth countries while the British Empire was established and maintained, and it forms the basis of the jurisprudence of most of those countries. English law prior to treatise A treatise is a formal and systematic written discourse on some subject, generally longer and treating it in greater depth than an essay, and more concerned with investigating or exposing the principles of the subject, although it also contains elements of civil law Civil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined by judges. Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices, as, feudal law Feudalism is a decentralized sociopolitical structure in which a weak monarchy attempts to control the lands of the realm through reciprocal agreements with regional leaders. In its most classic sense, feudalism refers to the Medieval European political system composed of a set of reciprocal legal and military obligations among the warrior, canon law Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Roman Catholic Church, the Eastern and Oriental Orthodox churches, and the Anglican Communion of churches. The way that such church law, customary law and native Scots statutes A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law and the regulations issued by government agencies. Statutes are sometimes referred to as. Although there was some indirect Roman law The term Roman law denotes the legal system of ancient Rome, and the legal developments which occurred before the seventh century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve Tables to the Corpus Juris inflence on Scots law, via the civil law Civil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined by judges. Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices, as and canon law Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Roman Catholic Church, the Eastern and Oriental Orthodox churches, and the Anglican Communion of churches. The way that such church law used in the church courts, the direct influence of Roman law was slight up until around the mid-fifteenth century.^[2] After this time, Roman law The term Roman law denotes the legal system of ancient Rome, and the legal developments which occurred before the seventh century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve Tables to the Corpus Juris 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. Thus comparative law Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign classifies Scots law as a mixed legal system, a group that also contains South African law South Africa has a 'hybrid' or 'mixed' legal system, made of the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and an indigenous law system inherited from the Blacks . These traditions have had a complex interrelationship, with the English and the legal systems of Louisiana Law in the State of Louisiana is based in part on civil law. Louisiana is unique among the 50 U.S. states in having a legal system partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law. Louisiana thus follows the system of most non-Anglophone countries in the world, Quebec Quebec law is unique in Canada because Quebec is the only province in Canada to have a bijuridical legal system under which civil matters are regulated by French-heritage civil law and criminal law operates according to Canadian common law and Puerto Rico Puerto Rico , officially the Commonwealth of Puerto Rico (Spanish: "Estado Libre Asociado de Puerto Rico" — literally Associated Free State of Puerto Rico), is an unincorporated territory of the United States, located in the northeastern Caribbean Sea, east of the Dominican Republic and west of the Virgin Islands.^[3]

Since the Acts of Union, in 1707 The Acts of Union were a pair of Parliamentary Acts passed in 1707 by the Parliament of Scotland and the Parliament of England to put into effect the terms of the Treaty of Union that had been agreed on 22 July 1706, following negotiation between commissioners representing the parliaments of the two countries. The Acts joined the Kingdom of, it has shared a legislature The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom and British overseas territories. It alone has parliamentary sovereignty, conferring upon it ultimate power over all other political bodies in the UK and its territories. At its head is the Sovereign, Queen Elizabeth II with the rest of the United Kingdom The United Kingdom of Great Britain and Northern Ireland[note 7] is a sovereign state located off the northwestern coast of continental Europe. It is an island country, spanning an archipelago including Great Britain, the northeastern part of the island of Ireland, and many small islands. Northern Ireland is the only part of the UK with a land. Scotland retained a fundamentally different legal system from that of England and Wales England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom. Unlike Scotland and Northern Ireland, England and Wales follow the legal system known as English law, and the two form the constitutional successor to the former Kingdom of England, but the Union brought English The area now called England has been settled by people of various cultures for about 35,000 years, but it takes its name from the Angles, one of the Germanic tribes who settled during the 5th and 6th centuries. England became a unified state in AD 927, and since the Age of Discovery, which began during the 15th century, has had a significant influence on Scots law. In recent years, Scots law has also been affected by European law The Law of the European Union is the unique legal system which operates alongside the laws of Member States of the European Union . EU law has direct effect within the legal systems of its Member States, and overrides national law in many areas, especially in areas covered by the Single Market. The EU is not a federal government; as established by under the Treaty of Rome The Treaties of Rome are two of the treaties of the European Union signed on 25 March 1957. Both treaties were signed by The Six: Belgium, France, Italy, Luxembourg, the Netherlands, and West Germany, the requirements of the European Convention on Human Rights The European Convention on Human Rights (long title: Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe (entered into by members of the Council of Europe The Council of Europe is one of the oldest international organisations working towards European integration, having been founded in 1949. It has a particular emphasis on legal standards, human rights, democratic development, the rule of law and cultural co-operation. It has 47 member states with some 800 million citizens. It is distinct from the) and the establishment of the Scottish Parliament The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament (MSPs). Members are elected for four-year which may pass legislation within its areas of legislative competence In the United Kingdom reserved matters, also referred to as reserved powers, are those subjects over which power to legislate is retained by Westminster, as stated by the Scotland Act 1998, Northern Ireland Act 1998 or Government of Wales Act 1998 as detailed by the Scotland Act 1998 The Scotland Act 1998 is an Act of the Parliament of the United Kingdom. It is the Act which established the devolved Scottish Parliament.^[4]

There are substantial differences between Scots Law, English law English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countriesand the United States . It was exported to Commonwealth countries while the British Empire was established and maintained, and it forms the basis of the jurisprudence of most of those countries. English law prior to and Northern Ireland law Northern Ireland law has been the legal system of Northern Ireland since the creation of Northern Ireland as a separate country within the United Kingdomon 3rd May, 1921, under the Government of Ireland Act 1920 in areas such as property law Property law is the area of law that governs the various form of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate, criminal law Criminal law, or penal law, is the bodies of rules with the potential for severe impositions as punishment for failure to comply. Criminal punishment, depending on the offense and jurisdiction, may include execution, loss of liberty, government supervision , or fines. There are some archetypal crimes, like murder, but the acts that are forbidden, trusts law, inheritance law Inheritance is the practice of passing on property, titles, debts, and obligations upon the death of an individual. It has long played an important role in human societies. The rules of inheritance differ between societies and have changed over time, evidence law The law of evidence governs the use of testimony and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law) and family law This list is by no means dispositive of the potential issues that come through the family court system. In many jurisdictions in the United States, the family courts see the most crowded dockets. Litigants representative of all social and economic classes are parties within the system while there are greater similarities in areas of national interest such as commercial law Commercial law is the body of law that governs business and commercial transactions. It is often considered to be a branch of civil law and deals with issues of both private law and public law and taxation law Tax law is the codified system of laws that describes government levies on economic transactions, commonly called taxes. Some of the more important practical differences between the jurisdictions Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. The term is also used to denote the geographical area or subject-matter to which such authority include the age of legal capacity (16 years old in Scotland, 18 years old in England),^[5][6] the use of a 15 member jury in Scotland rather than the usual 12 members,^[7] the fact that the accused in a criminal trial does not have the right to elect a judge A judge, or arbiter of justice, is a lead who presides over a court of law, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is like an umpire in a game and conducts the trial impartially and in an open court. The or jury trial A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge. It is distinguished from a bench trial, in which a judge or panel of judges make all decisions,^[7] judges and juries of criminal trials have the "third verdict" of "not proven Not proven is a verdict available to a court in Scotland" available to them,^[8] and the fact that Equity Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of law where their application would operate harshly. In civil legal systems, broad "general clause" allow judges to have similar leeway in applying the code does not exist in Scots law. Some of the more important practical similarities between the jurisdictions Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. The term is also used to denote the geographical area or subject-matter to which such authority include the similar protections for consumers under the Sale of Goods Act 1979 The Sale of Goods Act 1979 is an Act of the Parliament of the United Kingdom which regulates contracts in which goods are sold and bought. The Act consolidates the original Sale of Goods Act 1893 and subsequent legislation, which in turn had codified and consolidated the law. Since 1979, there have been a number of minor statutory changes and,^[9] very similar treatment under various taxation legislation and similar protections for employees and agents.^[10]

Legal system

Governance and administration

Many areas of Scots law are legislated for by the Scottish Parliament, whose authority devolved from the Parliament of the United Kingdom (Westminster). Areas of Scots law over which the Scottish Parliament has competency include health, education, criminal justice, local government, environment and civil justice amongst others. However, certain powers are reserved to Westminster such as defence, international relations, fiscal and economic policy, drugs law, and broadcasting, amongst others. The Scottish Parliament has been granted limited tax raising powers.

Minister for Justice

The Scottish Government has executive responsibility for the Scottish legal system, with functions exercised by the Cabinet Secretary for Justice. The Cabinet Secretary for Justice has political responsibility for policing, law enforcement, the courts of Scotland, the Scottish Prison Service, fire services, civil emergencies and civil justice.

Legal profession

The Scottish legal profession has two main branches, Advocates and Solicitors.

Advocates

Advocates, the equivalent of the English Barristers, belong to the Faculty of Advocates which distinguishes between junior counsel and senior counsel, the upper echelon of the latter being designated Queen's Counsel. Advocates specialise in presenting cases before courts and tribunals, with near-exclusive (see solicitor-advocates below) rights of audience before the higher courts, and in giving legal opinions. They usually receive instructions indirectly from clients through solicitors, though in many circumstances they can be instructed directly by members of certain (professional) associations.

Furthermore, it used to be the case that Advocates were completely immune from suit etc while conducting court cases and pre-trial work, as they had to act 'fearlessly and independently'; the rehearing of actions was considered contrary to public interest; and Advocates are required to accept clients, they cannot pick and choose. However, the seven-judge English ruling of Arthur Hall v Simmons 2000 (House of Lords) declared that none of these reasons justified the immunity strongly enough to sustain it. This has been followed in Scotland in Wright v Paton Farrell obiter insofar as civil cases are concerned.

Solicitors

Solicitors, more numerous, are members of the Law Society of Scotland and deal directly with their clients in all sorts of legal affairs. In the majority of cases they present their client's case to the court, and while traditionally they did not have the right to appear before the higher courts, since 1992 they have been able to apply for extended rights, becoming solicitor-advocates – see below.

A solicitor also has the opportunity to become a notary public. These, unlike their continental equivalent, are not members of a separate profession. Most Solicitors will be Notaries but Notaries must be Solicitors and cannot operate independently.

Solicitor-Advocates

While Solicitors and Advocates are distinct branches of the Scottish legal profession, there has been a blurring of this position in recent years. The Law Society of Scotland may, upon proof of sufficient knowledge through exams, practice, training etc, grant rights of audience before the higher courts to solicitors. This is due to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

Courts

• Criminal Courts (by increasing authority)
  • District Court and Justice of the Peace Court
  • Sheriff Court
  • High Court of Justiciary
  • High Court of Justiciary sitting as a Court of Criminal Appeal
  • Supreme Court of the United Kingdom in devolution issues only
• Civil Courts (by increasing authority)
  • Sheriff Court
  • Court of Session
    • Outer House
    • Inner House
  • Supreme Court of the United Kingdom (in devolution issues also)^[11]
• There are also a number of specialist courts and tribunals who determine legal disputes and applications, appeal from which ultimately lies to the Sheriff court (and therefore arguably of inferior authority relative to the Sheriff Court):
  • Children's Hearings
  • Office of the Public Guardian
• For other such courts and tribunals, appeal lies to the Court of Session:
  • land:
    • Scottish Land Court – agricultural tenancies and crofting rights
    • Lands Tribunal for Scotland – title and land obligations
  • heraldry and genealogy:
    • Court of the Lord Lyon
  • Pensions Appeal Tribunals for Scotland

• Further there are a number of cross-border tribunals appeal from which lies ultimately to the Court of Session where the proceedings originate within Scotland:
  • Asylum and Immigration Tribunal
  • Employment Tribunal
  • Upper Tribunal
  • VAT and Duties Tribunal

Origins and historical development

By the late 11th century Celtic law applied over most of Scotland, with Old Norse law covering the areas under Viking control (resulting in Udal Law still in very limited force in Orkney and Shetland).

In following centuries as Norman influence grew and feudal relationships of government were introduced, Scoto-Norman law developed which was initially similar to Anglo-Norman law but over time differences increased (especially after 1328, with the end of the wars of Scottish Independence). Early in this process David I of Scotland established the office of Sheriff with civil and criminal jurisdictions as well as military and administrative functions. At the same time Burgh courts emerged dealing with civil and petty criminal matters, developing law on a continental model, and the Dean of Guild courts were developed to deal with building and public safety (which they continued to do into the mid 20th century).

From the end of the 13th century the Scottish parliament of the Three Estates developed Statute Laws.

Continental influence

Some Scots common law is based on the 6th century system of Roman law which applied in the Eastern Roman empire around the time of Justinian. This occurred because, prior to the Reformation in 1560, much of the jurisdiction of private law came under the Church courts administering Canon law with an ultimate right of appeal to the Papal court at Rome. This was the basis of matrimonial law, and influenced branches such as the law of succession and contract law. For centuries Scotland was more in touch with mainland European countries than with neighbouring England, and many Scots lawyers had part of their legal education abroad, particularly in the Netherlands. As a result they were influenced by studying Roman law in continental universities.^[12]

From the 12th century the assimilation of the Celtic church into the Roman Catholic Church brought Canon law and Church courts dealing with areas of civil law. This influence extended as Medieval Scots students of Civil or Canon Law mostly went abroad, to universities in Italy, France, Germany or the Netherlands. (The English universities, Oxford and Cambridge, were closed to Scots, or anyone who did not subscribe to the articles of the Church of England, until the mid 19th century.) The University of St. Andrews (1410) included the teaching of Civil and Canon Law in its purposes, though it appears that little or no such teaching took place. The University of Glasgow (1451) was active in law teaching in its early years, one scholar there being William Elphinstone, who then studied abroad and went on to found the University of Aberdeen (1495) which taught canon law until the mid 16th century. Studying on the European mainland continued to be the norm for Scottish law students until the 18th century.

In the early 16th century a costly war pushed James V of Scotland to do a deal with Pope Paul III for funds in the form of a tithe on the church in exchange for agreeing to found a College of Justice, in 1532. By 1560 the Reformation removed Papal authority and Canon Law jurisdiction was taken over by the Commissary Courts, whose jurisdiction, along with that of the Scottish Court of Exchequer was subsumed into that of the Court of Session in the 19th century.

United Kingdom

The 1707 Treaty of Union, confirmed in the Act of Union, preserved the Scottish legal system, with provisions that the Court of Session or College of Justice (and the Court of Justiciary) ... remain in all time coming within Scotland, and that Scots Law remain in the same force as before. One of the reasons for this concession was to guarantee the support of the influential Edinburgh lawyers for the idea of the union with England, an idea which was opposed by many Scots.

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 the Westminster parliament and the introduction of appeal to the House of Lords brought further English influence and it is sometimes stated that this marked the introduction of common law into the system, but Scots common law incorporates different principles and makes use of legal writings which long predate the Union (see Legal institutions of Scotland in the High Middle Ages).

Appeal decisions by English lords 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. Nowadays 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.^[13]

The Scottish Highlands had been affected by Scots law but remained largely independent, with remnants of Celtic law still in force. Their involvement in Jacobitism led to a series of Acts attempting to crush the Scottish clan structure and bring them firmly within Scots law. The Heritable Jurisdictions (Scotland) Act 1746 removed the virtually sovereign power the chiefs had over their clan, but probably affected other hereditary offices more, with the result that sheriffs-depute, who had actually done the work for the hereditary office holders, became crown appointees and took over the role.

Scots law has continued to change and develop, with the most significant change coming with the establishment of the Scottish Parliament as described below.

Sources of law

Legislation

The United Kingdom Parliament

The United Kingdom Parliament has the power to legislate on any issue for Scotland. The Human Rights Act 1998, the Scotland Act 1998 and the European Communities Act 1972 have special status in the United Kingdom, and therefore the law of Scotland.

Acts of the United Kingdom Parliament also regularly delegate powers to Ministers of the Crown or other bodies to produce legislation known as statutory instruments. This legislation has legal effect in Scotland so far as the specific statutory instrument is meant to.

The Human Rights Act 1998

This Act of the United Kingdom Parliament incorporated most of the European Convention on Human Rights into domestic UK law. This has had the effect that the Scottish Courts now have an obligation to interpret the common law and statutes in such a way that, where possible, the law of Scotland is compatible with the European Convention on Human Rights.^[14] The Scottish Parliament also cannot create legislation that contravenes the European Convention on Human Rights; if they did, the new law would be void.^[15]

European Community legislation

Various legislative and judicial acts of the European Union have either direct or indirect legal effect in Scotland. The Scottish Parliament's legislation cannot contravene European Community law.^[15]

The new Scottish Parliament

The Scottish Parliament created by the Scotland Act 1998 has the power to legislate on specific devolved issues for Scotland.^[16] The powers of the legislature are limited in that they can only legislate on devolved issues and must not contravene the Human Rights Act 1998 or the European Communities Act 1972. However, in Part I of Schedule 5 (RESERVED MATTERS) of the Scotland Act 1998 it states as follows in Section 7 -

(1) International relations, including relations with territories outside the United Kingdom, the European Communities (and their institutions) and other international organisations, regulation of international trade, and international development assistance and co-operation are reserved matters.

(2) Sub-paragraph (1) does not reserve -

(a) observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law,

(b) assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies.

Acts of the Scottish Parliament also regularly delegate powers to the Scottish Ministers and other bodies to produce statutory instruments. This legislation has legal effect in Scotland.

The old Scottish Parliament

Some Acts of the Old Scottish Parliament, known as the Estates of Parliament, are still in force in Scotland, such as the Royal Mines Act 1424 or the Leases Act 1449. These Acts are written in Scots, but still remain in use today by the legal profession, especially the Leases Act 1449.^[17]

The Common Law

Common Law is developed through decisions of courts and similar tribunals. The Courts of Scotland are chiefly responsible for the development of the Common Law in Scotland. The principle of the Common Law is that higher court decisions bind the lower courts. The highest civil court in Scotland is the Supreme Court of the United Kingdom, which also hears devolution issues, and the highest criminal court is the High Court of Justiciary.

Scottish judges will often use cases decided by Scottish courts, however, they are also able to take into consideration decisions made by foreign courts, although these decisions will only be persuasive not binding on the Court.

As, until 2009, the House of Lords acted as the highest court of appeal for civil actions both in Scotland and England and Wales this has led to, at times in history, a diffusion of English law into Scots law. This has resulted in the merging of Scottish and English Common Law on many issues, often resulting in strained interpretations of Scots law.^[18][19]

The Institutional Writers

From the 16th century to the mid-18th century various writers in Scotland attempted the codification or explanation of Scots Law on various topics and issues, mirroring the Corpus Iuris Civilis. These works can be used as sources of law before Scottish courts, although other sources will have primacy over them. The list of the Institutional Writers and their works is contested, although it certainly includes Stair's work, "Institutions of the Law of Scotland". Other potential writers include Sir Thomas Craig, Sir George Mackenzie, Prof. John Erskine, Baron David Hume, Prof. George Joseph Bell, and many others.^[20]

Custom

Customary practices of communities may be considered an authoritative source of law in Scotland, although it is rarely, if ever, used today. The most recent case in which it was used was decided in 1890.^[21] Custom law was recognized by the Institutional Writers who pointed to the use of Udal Law in some parts of Scotland as an example of its exercise.

Branches of Scots law

The principal division in Scots Law is that between public law involving the state in some manifestation, and private law where only private persons are involved. Public law covers constitutional law, administrative law and criminal law and procedure. Private law covers those defined under The Law of Persons, including children, adults, partnerships (where the partnership is a separate "juristic person" from the individuals in it, which is not the case in English law) and limited companies.

Private law

Contract

Contract is created by bilateral agreement and is distinguished from unilateral promise, the latter being recognised as a distinct and enforceable species of obligation in Scots Law. The English requirement for consideration does not apply in Scotland, so it is possible to have a gratuitous contract, i.e. a contract where only one of the parties comes under any duties to the other (e.g. a contract to perform services for no consideration).

Note however that not all declarations made by a person to another person will amount to a promise that is enforceable under Scots law. In particular, a declaration of intention, a testamentary provision and an offer will not be a promise.

At common law, a promise had to be proved by writ or oath. However, after the introduction of the Requirements of Writing (Scotland) Act 1995, a promise need only be evidenced in writing for:

• The creation, transfer, variation or extinction of an interest in land (s 1(2) (a)(i) of Requirements of Writing (Scotland) Act 1995); and
• A gratuitous unilateral obligation except an obligation undertaken in the course of business (s 1(2) (a)(ii) of Requirements of Writing (Scotland) Act 1995.) [Note that this section has caused great debate amongst academics as to the meanings of "unilateral" and "gratuitous". Some believe that the inclusion of the two terms in this section points to a desire of the drafters that they be given different meanings. This would allow some promises to be unilateral but not gratuitous. This argument was particularly discussed by both Martin Hogg (Edinburgh University) and Joe Thomson (Glasgow University) in articles for the Scots Law Times (News) in 1998 and 1997 respectively. See also "Contract Law in Scotland", by MacQueen and Thomson (3rd edition, 2007), and "Obligations" by Martin Hogg (2nd edition, 2006).

Delict

Delict deals with the righting of legal wrongs in civil law, on the principle of liability for loss caused by failure in the duty of care, whether deliberate or accidental. While it broadly covers the same ground as the English law of Tort, the Scots law is different in many respects and concentrates more on general principle and less on specific wrongs. While some terms such as assault, defamation are used in both systems, their technical meanings differ.

"Delict" as a word derives from the Latin "delictum" and as a branch of Scots Law revolves around the fundamental concept "Damnum Injuria Datum" – literally loss wrongfully caused. Where A has suffered wrongful loss at the hands of B (generally where B was negligent, but also by deliberate acts or where strict liability applies) B is under a legal obligation to make reparation. The fundamental concept in the Scots law of delict is that the pursuer should be put, as far as possible, into the position he would have been in had the delict not been committed; unlike English law, there is never a penal element to reparation.^[22] There are many many various delicts which can be committed, ranging from assault to procurement of breach of contract.

The landmark decision on establishing negligence, for Scotland and for the rest of the United Kingdom, is the Scottish case of Donoghue v. Stevenson 1932 S.C. (HL) 31 which, while strictly a Scottish case, quickly established itself as the leading authority in the field of negligence in English Law also.

Mrs Donoghue had been enjoying an ice cream with ginger beer her friend had bought her in Mr Minchella's café in Paisley, when she emptied the opaque ginger beer bottle out and the decomposing remains of a snail emerged. Interestingly owing to quirks of the case it was never established that the drink was ginger beer in the literal sense. It is common in Paisley and surrounding areas to use the term 'ginger' to describe a variety of carbonated drinks. The case however proceeds on the assumption that ginger beer was served in opaque bottles preventing discovery of the snail, had it actually been a clear bottle the case may have gone differently. Her distress and subsequent illness was such that she was determined to bring an action for damages — but the poor woman had no contract with the café proprietor as her friend had paid, so she sued the manufacturer for his negligence. The case of the snail in the bottle was taken to the House of Lords who found that the manufacturer does indeed have a duty of care, subject to restrictions. This decision had influence in many countries and established the "neighbour principle" in Scots Law. After the question of if there were grounds for action was answered "the action was settled before any proof was held"^[23] and it has never been proven, before a court, that the snail had entered the bottle at all.

Property law

Scots Law of Property distinguishes between Heritable property, such as land and buildings, and Moveables, which include including physically moveable objects, title to which normally passes only on delivery; and moveable rights including intellectual property such as patents, trade marks and copyrights. It is worth noting that written acceptance of a written offer for property purchase is a legally binding contract.

Hitherto this meant that purchasers were advised to survey the property and have finance in place prior to offering. That practice resulted in wasted time and expense where the purchase did not proceed. Around 2005 practice has changed to offering subject to survey not unlike the English system, then later in 2008 Home Information Packs were introduced and a single survey is paid for by the seller and made available to all interested parties.

Feudal law

The feudal system lingered on in Scots law on land ownership, so that a landowner as a vassal still had obligations to a feudal superior including payment of feu duty. This enabled developers to impose perpetual conditions dictating how buildings had to be constructed and maintained, but added complications and became abused to demand payments from vassals who wanted to make minor changes. In 1974 legislation began a process of redeeming feu duties so that most of these payments were ended, but it was only with the attention of the Scottish Parliament that a series of acts was passed to end the disadvantages while keeping the benefits of the system; the first in 2000, the Abolition of Feudal Tenure etc. (Scotland) Act 2000, coming into force on November 28, 2004.

Udal law

The Northern Isles used a system called Udal Law, owing to their former status as territory of Norway. However, following legal reforms in November 2004^{[citation needed]}, the significance of udal law in those islands is greatly reduced.

Intellectual property law

Intellectual property (IP) in Scotland is governed mostly by statute; however, it was a Scottish case, Wills v Zetnews (1997 FSR 604), that first applied the existing copyright law to the internet by categorising the internet as a cable programme. This definition has now been superseded by European directives, but the principle still stands.

Public law

Criminal law

Scots criminal law relies far more heavily on Common Law than in England. Scots criminal law includes offences against the person of murder, culpable homicide, rape and assault, offences against property such as theft and malicious mischief, and public order offences such as mobbing and breach of the peace. Some areas of criminal law, such as misuse of drugs and traffic offences appear identical on both sides of the Border. In fact, the Scots requirement of corroboration in criminal matters changes the practical prosecution of crimes derived from the same enactment.

Crown Office and Procurator Fiscal Service

The Crown Office and Procurator Fiscal Service provides independent public prosecution of criminal offences in Scotland (as the more recent Crown Prosecution Service does in England and Wales) and has extensive responsibilities in the investigation and prosecution of crime. The Crown Office is headed by the Lord Advocate, in whose name all prosecutions are carried out, and employs Advocates Depute (for the High Court of Justiciary) and Procurators Fiscal (for the Sheriff Courts) as public prosecutors.

Private prosecutions are very rare in Scotland. These require "Criminal Letters" from the High Court of the Justiciary. Criminal Letters are unlikely to be granted without the agreement of the Lord Advocate.

"Not proven" verdict

The Scots legal system is unique in having three possible verdicts for a criminal trial: "guilty", "not guilty" and "not proven". Both "not guilty" and "not proven" result in an acquittal with no possibility of retrial. The third verdict resulted from historical accident, in that there was a practice at one point of leaving the jury to determine factual issues one-by-one as "proven" or "not proven". It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. Now the jury decides this question after legal advice from the judge, but the "not proven" verdict lives on. The "not proven" verdict is often taken by juries and the media as meaning "we know they did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy.

Misconception of the Scots "not proven" concept has occasionally inspired legal decision or commentary in other countries. In February 1999, United States Senator Arlen Specter voted against conviction in the impeachment trial of Bill Clinton, citing the concept of the "not proven" as a basis for his decision. Another recent example is seen in the case of Sean Flynn, who stood trial at the High Court in Perth accused of murdering his mother, Louise Tiffney. Responding to the "not proven" verdict delivered on 16 March 2005, some of Flynn's relatives expressed their dissatisfaction, including Flynn's aunt, June Tiffney, who stated the verdict was "not justice" for her sister.

However, the Scottish legal profession is largely opposed to this perception of the not-proven verdict. In a Scottish criminal trial, as in an English one, the burden of proof lies on the prosecution, and the guilt of the accused must be proven "beyond reasonable doubt." It is therefore the role of the prosecution to produce enough evidence, whether direct or circumstantial, which must be relevant, admissible and of enough weight to procure a prosecution. Where the prosecution fails in this role, the jury will feel doubt as to the guilt of the accused and cannot return a verdict of guilty. Therefore, the 15 jurors can declare a not-proven verdict, alerting the prosecution to the fact that its performance and/or evidence and/or witnesses were poor.

There are now MSP's looking to have the possibility of a retrial if someone gets a not proven verdict.^{[citation needed]}

Notable criminal cases

• Brennan v HM Advocate 1977 JC 38 – authority against automatism in cases of voluntary intoxication
• Cawthorne v HM Advocate 1968 JC 32
• Crawford v HM Advocate 1950 JC 67
• Drury v HM Advocate 2001 SCCR 538 – provided modern definition of murder
• Jamieson v HM Advocate 1994 SLT 537
• Khaliq v HM Advocate 1984 JC 23
• Ross v HM Advocate 1991 JC 210 – first authoritative recognition of non-insane automatism
• Smart v HM Advocate 1975 JC 30
• Sutherland v HM Advocate 1994 SLT 634

Scots administrative law

Scots civil procedure

Scots family law

See also

• List of leading Scottish legal cases
• List of Scottish topics

References

1. ^ Robinson, Fergus and Gordon, European Legal History, 3rd Edition, OUP, 2000, p155
2. ^ Robinson, Fergus and Gordon, European Legal History, 3rd Edition, OUP, 2000 chapter 14
3. ^ Palmer, Vernon Valentine. Mixed Jurisdictions Worldwide: The Third Legal Family. Cambridge University Press 2001
4. ^ Sch. 5 Scotland Act 1998
5. ^ Age of Legal Capacity (Scotland) Act 1991 (c. 50), opsi.gov.uk
6. ^ "Under Scots Law (in contrast to the law in E&W), young people have full (or 'active') legal capacity at 16 years", Keele University
7. ^ ^{a b} p. 46 Jones, Timothy H.; Chrisite, Michael G.A. (2008). Criminal Law. Edinburgh: W.Green. ISBN 978-0-414-01683-5.
8. ^ p. 47 Jones, T.H. and Christie, M.G.A. Criminal Law. W. Green & Son Ltd., 2008.
9. ^ p. 2 Davidson, Fraser and MacGregor, Laura. Commercial Law in Scotland. W. Green & Sons, 2008.
10. ^ p. 56 Davidson, Fraser and MacGregor, Laura. Commercial Law in Scotland. W. Green & Sons, 2008.
11. ^ "The Supreme Court Rules 2009" (PDF). http://www.supremecourt.gov.uk/files/UK-Supreme-Court-Rules-2009.pdf. Retrieved 2010-06-05.
12. ^ Stone, Gregory B.; Speaight, Anthony (2000). Architect's legal handbook: the law for architects. London: Architectural Press. ISBN 0-7506-4375-7.
13. ^ [1] BBC News
14. ^ s. 3 Human Rights Act 1998
15. ^ ^{a b} ss. 29(1) and 29(2)(d) Scotland Act 1998
16. ^ s. 30(1) and Sch. 5 Scotland Act 1998
17. ^ Office of Public Sector Information copies of Old Scottish Parliament Acts in force OPSI website
18. ^ E.g. Smith v Bank of Scotland 1997 S.L.T. 1061.
19. ^ p. 253 Davidson, Fraser; MacGregor, Laura. Commercial Law in Scotland. W. Green & Son, 2008.
20. ^ p. 167 White, Robin. The Scottish Legal System. Tottel Publishing, 2007.
21. ^ p. 170 White, Robin. The Scottish Legal System. Tottel Publishing, 2007.
22. ^ Stair, Institutions, I. 9. 1.
23. ^ [2], Law Basics: 100 Cases that every Scots Law Student Needs Know written by past and present staff at the University of Strathclyde Law School, apparently out of print.

External links

• "Absolvitor: Scots Law Online". http://www.absolvitor.com/. Scots Law Blog, useful links to legal websites, directory of solicitors in Scotland and some legal articles on various topics.
• "CaseCheck - Case Law, Court Cases". http://www.casecheck.co.uk. Scottish Courts Case, Case Law, Reports, Employment Tribunal Case Reports, Legal Opinions, Comments and Analysis.
• "Scottish Court Service". http://www.scotcourts.gov.uk. Details of Scottish courts and case law.
• "Law Society of Scotland". http://www.lawscot.org.uk/. The Law Society of Scotland organizes solicitors, which comprise 95% of all Scottish lawyers. The site has a section headed 'What is Scots law'.
• "Faculty of Advocates: Scottish Bar". http://www.advocates.org.uk. The Faculty of Advocates organizes advocates, which comprise 5% of Scottish lawyers.
• "Edinburgh Law School". http://www.law.ed.ac.uk/. Law degree, public lecture, research and publication information.
• "Scots Law Blog". http://www.scotslawblog.com/. Scots Law Blog, providing commentary, links and RSS feeds to the latest developments affecting the Scottish legal profession and academia.
• "Wardblawg". http://www.wardblawg.com/. Wardblawg, written by Scottish lawyer Gavin Ward, providing commentary, links and RSS feeds to the latest developments affecting the Scottish legal profession and academia.
• "Scots Law News". http://www.law.ed.ac.uk/sln/. Scottish law blog with news of current developments.
• "Scottish Law Commission". http://www.scotlawcom.gov.uk/. The Scottish Law Commission is in charge of proposals for law reform in Scotland. This site has discussions of current law and reform proposals.
• "Criminal Letters". http://criminalletters.blogspot.com. Blog of Scottish criminal and procedural law.
• "The Murray Stable". http://www.murraystable.com. Collection of articles on different areas of Scots law, re-usable under Creative Commons license.
• "Jonathan Mitchell QC". http://www.jonathanmitchell.info/. Material on how to use advocates, jurisdiction of Scottish courts, freedom of information, and much else. Weekly update of most recent cases decided in Court of Session.
• "Govan Law Centre". http://www.govanlc.com/. Material on welfare law in Scotland.
• "Scottish Legal Aid Board". http://www.slab.org.uk/. Material on how to get legal aid in Scotland.
• "Criminal Justice in Scotland (CjS)". http://www.cjscotland.org.uk/. This includes a daily blog of links to media and other information sources on Scottish criminal justice, original articles, parliamentary updates and so on.
• "Scottish Criminal Cases Review Commission". http://www.sccrc.org.uk/. All cases accepted by the SCCRC are subjected to a robust and thoroughly impartial review before a decision on whether or not to refer to the High Court is taken.
• "Crown Office and Procurator Fiscal Service". http://www.copfs.gov.uk/. The COPFS is responsible for criminal prosecution in Scotland, the investigation of sudden or suspicious deaths and complaints against the police.
• "Scottish Law Online". http://www.scottishlaw.org.uk/. This site provides information about Scots Law through a bulletin board and discussion forum.

Categories: Scots law

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