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Scots law () is the
legal system The contemporary national legal systems are generally based on one of four basic systems: civil law, common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and simil ...
of
Scotland Scotland (, ) is a country that is part of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the ...
. It is a hybrid or mixed legal system containing civil law and
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
elements, that traces its roots to a number of different historical sources. Together with
English law English law is the common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The co ...
and Northern Ireland law, it is one of the three legal systems of the United Kingdom.Stair, General Legal Concepts (Reissue), para. 4 (Online) Retrieved 2011-11-29 Early Scots law before the 12th century consisted of the different legal traditions of the various cultural groups who inhabited the country at the time, the
Gaels The Gaels ( ; ga, Na Gaeil ; gd, Na Gàidheil ; gv, Ny Gaeil ) are an ethnolinguistic group native to Ireland Ireland ( ; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the Atlantic Ocean, North Atlantic Ocean ...
in most of the country, with the Britons and
Anglo-Saxons The Anglo-Saxons were a cultural group who inhabited England in the Early Middle Ages The Early Middle Ages (or early medieval period), sometimes controversially referred to as the Dark Ages, is typically regarded by historians as lasting ...
in some districts south of the Forth and with the Norse in the islands and north of the River Oykel. The introduction of
feudalism Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe In the history of Europe, the Middle Ages or medieval period last ...
from the 12th century and the expansion of the Kingdom of Scotland established the modern roots of Scots law, which was gradually influenced by other, especially Anglo-Norman and continental legal traditions. Although there was some indirect
Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
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 Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolution in the United Kingdom, devolved, unicameralism, unicameral legislature of Scotland. Located in the Holyrood, Edinburgh, Holyrood area of the capital ...
and the United Kingdom Parliament. 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 A legislature is an assembly with the authority to make laws for a political entity such as a country A country is a distinct part of the world, such as a state, nation A nation is a community of people formed on the basis o ...
with
England and Wales England and Wales () is one of the three legal jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, a ...
. Scotland retained a fundamentally different legal system from that south of the border, but the Union exerted English influence upon Scots law. Since the UK joined the European Union, 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 The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe Europe is a l ...
(entered into by members of the Council of Europe) and the creation of the devolved Scottish Parliament which may pass legislation within all areas not reserved to Westminster, as detailed by the Scotland Act 1998.Sch. 5 Scotland Act 1998Devolved and reserved matters explained
,
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolution in the United Kingdom, devolved, unicameralism, unicameral legislature of Scotland. Located in the Holyrood, Edinburgh, Holyrood area of the capital ...
, Retrieved 2011-10-22
The UK Withdrawal from the European Union (Continuity) (Scotland) Act 2020 was passed by the Scottish Parliament in December 2020. It received
Royal assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
on 29 January 2021 and came into operation on the same day. It provides powers for the Scottish Ministers to keep devolved Scots law in alignment with future EU Law.


Scotland as a distinct jurisdiction

The United Kingdom, judicially, consists of three jurisdictions: England and Wales, Scotland, and Northern Ireland. There are important differences between Scots law,
English law English law is the common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The co ...
and Northern Irish law in areas such as
property law Property law is the area of law that governs the various forms of ownership in real property In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the propert ...
,
criminal law Criminal law is the body of law that relates to crime In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accep ...
,
trust law A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law In law, common law (also known as judicial precedent, ...
, inheritance law, evidence law and
family law Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family Family (from la, familia) is a group of people related either by consanguinity Consanguinity ("blood relation", fro ...
while there are greater similarities in areas of UK-wide interest such as commercial law, consumer rights, taxation, employment law and health and safety regulations. Examples of differences between the jurisdictions include the age of legal capacity (16 years old in Scotland but 18 years old in England and Wales), and the fact that equity was never a distinct branch of Scots law. Some examples in criminal law include: * The use of 15-member juries for criminal trials in Scotland (compared with 12-member juries in England and Wales) who always decide by simple majority.Jones, p. 46 * The accused in a criminal trial does not have the right to elect between a
judge A judge is a person who presides over court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in c ...
or jury trial. * Judges and juries of criminal trials have the "third verdict" of '' not proven'' available to them. * The requirement for corroborating evidence means at least two independent sources of evidence are required in support of each crucial fact before an accused can be convicted. In Scotland there are
justice of the peace court A justice of the peace court is the least authoritative type of criminal court in Scotland Scotland (, ) is a country that is part of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly know ...
s, sheriff courts, not magistrates' courts or
Crown Court The Crown Court is the court of first instance of England and Wales responsible for hearing all indictable offences, some either way offences and appeals lied to it by the magistrates' courts. It is one of three Senior Courts of England and ...
as in England and Wales, and the College of Justice. The Crown Office and Procurator Fiscal Service provides the independent public prosecution service for Scotland like the
Crown Prosecution Service The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales England and Wales () is one of the three legal jurisdiction Jurisdiction (from Latin 'law' + 'declarati ...
in England and Wales and the Public Prosecution Service in Northern Ireland.


History

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 Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is t ...
,
civilian Civilians under international humanitarian law are "persons who are not members of the armed forces A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. It is typ ...
'' ius commune'' and English law have created a hybrid or mixed legal system. The nature of Scots law before the 12th century is largely speculative, but is likely to have been a mixture of different legal traditions representing the different cultures inhabiting the land at the time, including Gaelic, Welsh, Norse and
Anglo-Saxon The Anglo-Saxons were a cultural group who inhabited England in the Early Middle Ages The Early Middle Ages (or early medieval period), sometimes controversially referred to as the Dark Ages, is typically regarded by historians as lasting ...
customs. There is evidence to suggest that as late as the 17th century marriage laws in the Highlands and Islands still reflected Gaelic custom, contrary to
Catholic The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Baptism (from grc-x-koine, βάπτισμα, váptisma) is a form of ritual purification—a character ...
religious principles. The formation of the Kingdom of Scotland and its subjugation of the surrounding cultures, completed by the Battle of Carham, established what are approximately the boundaries of contemporary mainland Scotland. The
Outer Hebrides The Outer Hebrides () or Western Isles ( gd, Na h-Eileanan Siar or or ("islands of the strangers"); sco, Waster Isles), sometimes known as the Long Isle/Long Island ( gd, An t-Eilean Fada, links=no), is an island chain off the west coas ...
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. From the 12th century
feudalism Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe In the history of Europe, the Middle Ages or medieval period last ...
was gradually introduced to Scotland and established
feudal land tenure Under the English feudal system several different forms of land tenure existed, each effectively a contract with differing rights and duties attached thereto. Such tenures could be either free-hold, signifying that they were hereditable or perp ...
over many parts of the south and east, which eventually spread northward. As feudalism began to develop in Scotland early court systems began to develop, including early forms of Sheriff Courts. Under
Robert the Bruce Robert I (11 July 1274 – 7 June 1329), popularly known as Robert the Bruce (Scottish Gaelic Scottish Gaelic ( gd, Gàidhlig ), also known as Scots Gaelic and Gaelic, is a Goidelic language (in the Celtic branch of the Indo-Eur ...
the importance of the Parliament of Scotland grew as he called parliaments more frequently, and its composition shifted to include more representation from the
burgh A burgh is an autonomous municipal corporation A municipal corporation is the legal term for a local governing body, including (but not necessarily limited to) cities, counties, town A town is a human settlement. Towns are generall ...
s and lesser landowners.Reid, ''I. Introduction and Property'', p. 38 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". 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 of Scottish Independence. 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). Both of these important texts, as they were copied, had provisions from
Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
and the '' ius commune'' inserted or developed, demonstrating the influence which both these sources had on Scots law. 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. The Parliament of Scotland was normally called on an annual basis during this period and its membership was further defined. 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. The 1688
Glorious Revolution The Glorious Revolution; gd, Rèabhlaid Ghlòrmhor; cy, Chwyldro Gogoneddus , also known as the ''Glorieuze Overtocht'' or ''Glorious Crossing'' in the Netherlands ) , anthem = ( en, "William of Nassau") , image_map = , map_cap ...
and the Claim of Right in 1689 established Parliamentary Sovereignty in Scotland, and the Acts of Union 1707 merged the Kingdom of Scotland and the
Kingdom of England The Kingdom of England (, ) was a sovereign state on the island of Great Britain Great Britain is an island in the North Atlantic Ocean The Atlantic Ocean is the second-largest of the world's five oceans, with an area of a ...
to form the new
Kingdom of Great Britain The Kingdom of Great Britain (officially Great Britain) was a sovereign country in Western Europe Western Europe is the western region of Europe Europe is a large peninsula conventionally considered a continent in its own right ...
. Article 19 of the Act confirmed the continuing authority of the College of Justice, Court of Session and Court of Justiciary in Scotland. Article 3, however, merged the Estates of Scotland with the
Parliament of England The Parliament of England was the legislature of the Kingdom of England The Kingdom of England (, ) was a sovereign state on the island of Great Britain Great Britain is an island in the North Atlantic Ocean The At ...
to form the
Parliament of Great Britain The Parliament of Great Britain was formed in May 1707 following the ratification of the Acts of Union by both the Parliament of England and the Parliament of Scotland. The Acts ratified the treaty of Union which created a new unified Kin ...
, with its seat in the Palace of Westminster,
London London is the capital and largest city of England and the United Kingdom, with a population of just under 9 million. It stands on the River Thames in south-east England at the head of a estuary down to the North Sea, and has been a ma ...
. Under the terms of the Act of Union, Scotland retained its own systems of law, education and Church ( Church of Scotland,
Presbyterian Presbyterianism is a part of the Reformed tradition within Protestantism that broke from the Roman Catholic Church in Scotland by John Knox, who was a priest at St. Giles Cathedral (Church of Scotland). Presbyterian churches derive their nam ...
polity), separately from the rest of the country. The
Parliament of Great Britain The Parliament of Great Britain was formed in May 1707 following the ratification of the Acts of Union by both the Parliament of England and the Parliament of Scotland. The Acts ratified the treaty of Union which created a new unified Kin ...
otherwise was not restricted 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 in civil but not criminal cases to the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom The United Kingdom of ...
(now, by appeal to the new 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. Scots law has continued to change and develop in the 20th century, with the most significant change coming under
devolution Devolution is the statutory delegation of powers from the central government of a sovereign state A sovereign state or sovereign country, is a political entity represented by one central government that has supreme legitimate auth ...
and the reformation of the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolution in the United Kingdom, devolved, unicameralism, unicameral legislature of Scotland. Located in the Holyrood, Edinburgh, Holyrood area of the capital ...
.


Influential sources

An early Scottish legal compilation, '' Regiam Majestatem'', was based heavily on Glanvill's English law treatise, although it also contains elements of civil law, feudal law, canon law, customary law and native Scots statutes. Although there was some indirect Roman-law influence on Scots law, via medieval ''ius commune'' and
canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is t ...
used in the church courts, the direct influence of Roman law was slight up until around the mid-15th century. After this time, civilian ''ius commune'' was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and civil law was in this way partially received ''in subsidium'' into Scots law. Since the Acts of Union 1707, Scotland has shared a
legislature A legislature is an assembly with the authority to make laws for a political entity such as a country A country is a distinct part of the world, such as a state, nation A nation is a community of people formed on the basis o ...
with the rest of the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
. Scotland retained a fundamentally different legal system from that of
England and Wales England and Wales () is one of the three legal jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, a ...
, but the Union brought English influence on 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 The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe Europe is a l ...
(entered into by members of the Council of Europe) and the establishment of the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolution in the United Kingdom, devolved, unicameralism, unicameral legislature of Scotland. Located in the Holyrood, Edinburgh, Holyrood area of the capital ...
which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998.


Sources of law


Legislation

The
Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off th ...
has the power to pass statutes on any issue for Scotland, although under the Sewel convention it will not do so in devolved matters without the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolution in the United Kingdom, devolved, unicameralism, unicameral legislature of Scotland. Located in the Holyrood, Edinburgh, Holyrood area of the capital ...
's consent.Bradley & Ewing
p. 22p. 64
/ref> The Human Rights Act 1998, the Scotland Act 1998 and the European Communities Act 1972 have special status in the law of Scotland. Modern statutes will specify that they apply to
Scotland Scotland (, ) is a country that is part of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the ...
and may also include special wording to take into consideration unique elements of the legal system. Statutes must receive
Royal Assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
from the
King King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king. *In the context of prehistory, antiquity and contemporary indigenous peoples, the ...
before becoming law, however this is now only a formal procedure and is automatic. Legislation of the
Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off th ...
is not subject to revocation by the courts as the Parliament is said to have supreme legal authority; however, application of legislation is subject to judicial review and also in practice, the Parliament will tend not to create legislation which contradicts the Human Rights Act 1998 or European law, although it is technically free to do so. The degree to which the Parliament has surrendered this sovereignty is a matter of controversy with arguments generally concerning what the relationship should be between the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
and the
European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe Europe is a large peninsula conventionally considered a continent in its own right because of its gre ...
. Acts of the United Kingdom Parliament also regularly delegate powers to Ministers of the Crown or other bodies to produce legislation in the form of statutory instruments. This delegated legislation has legal effect in Scotland so far as the specific provisions of the statutory instrument are duly authorised by the powers of the Act, a question which can be subjected to judicial review. The
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolution in the United Kingdom, devolved, unicameralism, unicameral legislature of Scotland. Located in the Holyrood, Edinburgh, Holyrood area of the capital ...
is a devolved unicameral
legislature A legislature is an assembly with the authority to make laws for a political entity such as a country A country is a distinct part of the world, such as a state, nation A nation is a community of people formed on the basis o ...
that has the power to pass statutes only affecting Scotland on matters within its legislative competence. Legislation passed by the Scottish Parliament must also comply with the Human Rights Act 1998 and European law, otherwise the Court of Session or High Court of Justiciary have the authority to strike down the legislation as '' ultra vires''. There have been a number of high-profile examples of challenges to Scottish Parliament legislation on these grounds, including against the Protection of Wild Mammals (Scotland) Act 2002 where an interest group unsuccessfully claimed the ban on fox hunting violated their human rights. Legislation passed by the Scottish Parliament also requires
Royal Assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
which, like with the
Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off th ...
, is automatically granted. Legislation passed by the pre-1707 Parliament of Scotland still has legal effect in Scotland, though the number of statutes that have not been repealed is limited. Examples include the Royal Mines Act 1424, which makes gold and silver mines the property of the
King King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king. *In the context of prehistory, antiquity and contemporary indigenous peoples, the ...
, and the Leases Act 1449, which is still relied on today in
property law Property law is the area of law that governs the various forms of ownership in real property In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the propert ...
cases. Legislation which forms part of the law of Scotland should not be confused with a civil code as it does not attempt to comprehensively detail the law. Legislation forms only one of a number of sources.


Common law

Common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
is an important legal source in Scotland, especially in
criminal law Criminal law is the body of law that relates to crime In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accep ...
where a large body of legal precedent has been developed, so that many crimes, such as murder, are not codified. Sources of common law in Scotland are the decisions of the Scottish courts and certain rulings of the Supreme Court of the United Kingdom (including its predecessor the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom The United Kingdom of ...
).The Criminal Courts
Healthy & Safety Executive, Retrieved 2011-10-22
The degree to which decisions of the Supreme Court are binding on Scottish courts in civil matters is controversial, especially where those decisions relate to cases brought from other legal jurisdictions; however, decisions of the Supreme Court in appeals from Scotland are considered binding precedent. In criminal cases the highest appellate court is the Court of Justiciary and so the common law related to criminal law in Scotland has been largely developed only in Scotland. Rulings of the European Court of Human Rights and the Court of Justice of the European Union also contribute to the common law in the interpretation of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe Europe is a l ...
and European law respectively. The common law of Scotland should not be confused with the common law of England, which has different historical roots.Stair, vol. 22, para. 359 (Online) Retrieved 2011-10-26 The historical roots of the common law of Scotland are the customary laws of the different cultures which inhabited the region, which were mixed together with feudal concepts by the Scottish Kings to form a distinct common law. The influence that English-trained judges have had on the common law of Scotland through rulings of the Supreme Court of the United Kingdom (and formerly the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom The United Kingdom of ...
) has been at times considerable, especially in areas of law where conformity was required across the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
for pragmatic reasons. This has resulted in rulings with strained interpretations of the common law of Scotland, such a
''Smith v Bank of Scotland''


Academic writings

A number of works by academic authors, called ''institutional writers'', have been identified as formal sources of law in Scotland since at least the 19th century. The exact list of authors and works, and whether it can be added to, is a matter of controversy.Stair, vol. 22, para. 538 (Online) Retrieved 2011-11-18 The generally accepted listStair, vol. 22, para. 537 (Online) Retrieved 2011-11-18 of institutional works are: * Sir Thomas Craig of Riccarton's ''Jus Feudale (1603)''; * Sir James Dalrymple, Viscount of Stair's ''Institutions of the law of Scotland (1681)''; * Andrew MacDouall, Lord Bankton's ''An Institute of the Laws of Scotland (1751–1753)''; * John Erskine of Carnock's ''An Institute of the Law of Scotland (1773)''; and, * George Joseph Bell's ''Commentaries on the Law of Scotland and on the Principles of Mercantile Jurisprudence (1804)'' and ''Principles of the Law of Scotland (1829)''. Some commentators would also consider the following works to be included: * Sir George Mackenzie of Rosehaugh's ''The Institutions of the Law of Scotland (1684)''; * John Erskine of Carnock's ''Principles of the Law of Scotland (1754)''; and, * Henry Home, Lord Kames' ''Principles of Equity (1760)'' The recognition of the authority of the institutional writers was gradual and developed with the significance in the 19th century of '' stare decisis''. The degree to which these works are authoritative is not exact. The view of
University of Edinburgh The University of Edinburgh ( sco, University o Edinburgh, gd, Oilthigh Dhùn Èideann; abbreviated as ''Edin.'' in post-nominals) is a public research university based in Edinburgh, Scotland Scotland (, ) is a country that is p ...
Professor Sir Thomas Smith was, "the authority of an institutional writer is approximately equal to that of a decision by a Division of the Inner House of the Court of Session".


Custom

John Erskine of Carnock, an institutional writer, described legal custom as, "that which, without any express enactment by the supreme power, derives force from its tacit consent; which consent is presumed from the inveterate or immemorial usage of the community." Legal custom in Scotland today largely plays a historical role, as it has been gradually eroded by statute and the development of the institutional writers' authority in the 19th century. Some examples do persist in Scotland, such as the influence of Udal law in
Orkney Orkney (; sco, Orkney; on, Orkneyjar; nrn, Orknøjar), also known as the Orkney Islands, is an archipelago in the Northern Isles of Scotland Scotland (, ) is a country that is part of the United Kingdom The United Kingdom ...
and
Shetland Shetland, also called the Shetland Islands and formerly Zetland, is a subarctic archipelago An archipelago ( ), sometimes called an island group or island chain, is a chain, cluster, or collection of island An island (or isl ...
. However, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.


Legal institutions


Government of Scotland

The Scottish Government, led by the First Minister, is responsible for formulating policy and implementing laws passed by the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolution in the United Kingdom, devolved, unicameralism, unicameral legislature of Scotland. Located in the Holyrood, Edinburgh, Holyrood area of the capital ...
. The Scottish Parliament nominates one of its Members to be appointed as First Minister by the
King King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king. *In the context of prehistory, antiquity and contemporary indigenous peoples, the ...
.''Answers to Frequently Asked Questions''
The Scottish Parliament, Retrieved 2011-11-21
The First Minister is assisted by various Cabinet Secretaries with individual portfolios and remits, who are appointed by the First Minister with the approval of Parliament. Ministers are similarly appointed to assist Cabinet Secretaries in their work. The Scottish Law Officers, (the
Lord Advocate His Majesty's Advocate, known as the Lord Advocate ( gd, Morair Tagraidh, sco, Laird Advocat), is the chief legal officer of the Scottish Government and the Crown in Scotland Scotland (, ) is a country that is part of the United King ...
and Solicitor General) can be appointed from outside the Parliament's membership, but are subject to its approval. The First Minister, the Cabinet Secretaries, Ministers and the Scottish Law Officers are the Members of the Scottish Government. They are collectively known as the "Scottish Ministers". The Scottish Government has executive responsibility for the Scottish legal system, with functions exercised by the Cabinet Secretary for Justice and Veterans. The Justice Secretary has political responsibility for policing, law enforcement, the courts of Scotland, the Scottish Prison Service, fire services, civil emergencies and civil justice.


Legislature

Many areas of Scots law are legislated for by the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolution in the United Kingdom, devolved, unicameralism, unicameral legislature of Scotland. Located in the Holyrood, Edinburgh, Holyrood area of the capital ...
, in matters devolved from the
Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off th ...
. Areas of Scots law over which the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolution in the United Kingdom, devolved, unicameralism, unicameral legislature of Scotland. Located in the Holyrood, Edinburgh, Holyrood area of the capital ...
has competency include health, education, criminal justice, local government, environment and civil justice amongst others. However, certain powers are reserved to Westminster including defence,
international relations International relations (IR), sometimes referred to as international studies and international affairs, is the scientific study of interactions between sovereign states. In a broader sense, it concerns all activities between states—such ...
, fiscal and economic policy, drugs law, and
broadcasting Broadcasting is the distribution of audio or video content to a dispersed audience via any electronic mass communications medium, but typically one using the electromagnetic spectrum ( radio waves), in a one-to-many model. Broadcasting beg ...
. The Scottish Parliament also has been granted limited tax raising powers. Although technically the Parliament of the United Kingdom retains full power to legislate for Scotland, under the Sewel convention it will not legislate on devolved matters without the agreement of the Scottish Parliament.


Courts of Scotland


Scottish Courts and Tribunals Service

All Scottish courts, except for the Court of the Lord Lyon, are administered by the Scottish Courts and Tribunals Service. The Courts and Tribunals service is a
non-ministerial government department Non-ministerial government departments (NMGDs) are a type of department of the United Kingdom government that deal with matters for which direct political oversight has been judged unnecessary or inappropriate. They are headed by senior civil s ...
with a corporate board chaired by the Lord President of the Court of Session (the head of the judiciary of Scotland.)


Criminal courts


=Justice of the peace courts

= Less serious criminal offences which can be dealt with under summary procedure are handled by local
Justice of the Peace Court A justice of the peace court is the least authoritative type of criminal court in Scotland Scotland (, ) is a country that is part of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly know ...
s. The maximum penalty which a normal Justice of the Peace can impose is 60 days imprisonment or a fine not exceeding £2,500.


=Sheriff courts

= Sheriff Courts act as district criminal courts, organised by sheriffdom, and deal with cases under both
summary Summary may refer to: * Abstract (summary), shortening a passage or a write-up without changing its meaning but by using different words and sentences * Epitome, a summary or miniature form * Abridgement, the act of reducing a written work ...
and solemn procedure. Cases can be heard either before a Summary Sheriff, a Sheriff, or a Sheriff and a jury. The maximum penalty which the Sheriff Court can impose, where heard just by a Sheriff or Summary Sheriff, is 12 months imprisonment or a fine not exceeding £10,000. A case before a Sheriff and jury can result in up to 5 years imprisonment or an unlimited fine.Courts of law
Citizens Advice Bureau, Retrieved 2011-11-24
Appeals against summary convictions and summary sentences are heard by the Sheriff Appeal Court, and decisions of the Sheriff Appeal Court can only be appealed with leave to the
High Court of Justiciary The High Court of Justiciary is the supreme criminal court in Scotland Scotland (, ) is a country that is part of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kin ...
and then only on questions of law.


=High Court of Justiciary

= More serious crimes, and appeals from solemn proceedings in the Sheriff Courts, are heard by the
High Court of Justiciary The High Court of Justiciary is the supreme criminal court in Scotland Scotland (, ) is a country that is part of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kin ...
. There is no appeal available in criminal cases to the Supreme Court of the United Kingdom, with respect to points of criminal law. Cases where the accused alleges a breach of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe Europe is a l ...
or European law can also be referred or appealed to the UK Supreme Court for a ruling on the relevant alleged breach. In these cases the UK Supreme Court is the successor to the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom The United Kingdom of ...
as the highest civil court having taken over the judicial functions of the House of Lords and the Privy Council from 2009.


Civil courts


=Sheriff courts

= Sheriff Courts also act as district civil courts with exclusive jurisdiction over all cases worth not more than , unless they are particularly complicated or of significant importance.Small claims actions
Shelter Scotland, Retrieved 2011-11-24
Ordinary cause actions
Shelter Scotland, Retrieved 2011-11-24
Personal injury actions may also be heard at the specialist all-Scotland Sheriff Personal Injury Court, which has the power to hear cases before a
jury A jury is a sworn body of people (jurors) convened to hear evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays an ...
. Decisions of a Sheriff Court are appealed to the Sheriff Appeal Court. Further appeals are possible to the Inner House of the Court of Session, but only with the permission of either the Sheriff Appeal Court, or the Court of Session. Such appeals are granted if there is an important point of principle, or other compelling reason. Appeals may finally be taken to the Supreme Court of the United Kingdom, but only with the leave of either the Inner House or the Supreme Court itself, and it relates to a general point of
public interest The public interest is "the welfare or well-being of the general public" and society. Overview Economist Lok Sang Ho in his ''Public Policy and the Public Interest'' argues that the public interest must be assessed impartially and, therefo ...
in the law.


=Court of Session

= Complicated or high-value cases can be heard at first instance by the Outer House of the Court of Session, with the Court of Session having concurrent jurisdiction for all cases with a monetary value of more than . Decisions of the Outer House are appealed to the Inner House of the Court of Session, and (where allowed by the Inner House, or in matters relative to Devolution) then to the Supreme Court of the United Kingdom. Scottish courts may make a reference for a preliminary ruling to the Court of Justice of the European Union in cases involving European law.


Specialist courts

There are also a number of specialist courts and tribunals that have been created to hear specific types of disputes. These include Children's Hearings, the Lands Tribunal for Scotland, the Scottish Land Court and the Court of the Lord Lyon. The Employment Appeal Tribunal is also an example of a cross-jurisdictional tribunal.


Judiciary of Scotland

Scotland has several classes of
judge A judge is a person who presides over court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in c ...
who sit in the various courts of Scotland, and led by the Lord President of the Court of Session who is head of the Scottish judiciary by virtue of Section 2 of the Judiciary and Courts (Scotland) Act 2008. The second most senior judge is the Lord Justice Clerk, and together with the Senators they constitute the College of Justice. The Senators are referred to as ''Lords of Council and Session'' when sitting in civil cases, and ''Lords Commissioners of Justiciary'' when sitting in criminal cases. The sheriff courts are presided over by the Sheriffs Principal, Sheriffs, and Summary Sheriffs. They will preside over both civil and criminal cases. The most junior judges are the justices of the peace who preside over minor criminal matters in the
Justice of the Peace Court A justice of the peace court is the least authoritative type of criminal court in Scotland Scotland (, ) is a country that is part of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly know ...
s.


Legal profession

The Scottish legal profession has two main branches, advocates and solicitors.Palmer, p. 213 Advocates, the equivalent of the English barristers, belong to the Faculty of Advocates which distinguishes between junior counsel and senior counsel, the latter being designated King's or Queen's Counsel. Advocates specialise in presenting cases before courts and tribunals, with near-exclusive rights of audience, 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. Solicitors 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 known as solicitor advocates. Notaries public, unlike their continental equivalent, are not members of a separate profession; they must be solicitors, and most solicitors are also notaries.


See also

* List of Scottish legal cases


Notes


References

*Barrow, Geofrey. ''Kingship and Unity: Scotland 1000–1306''. Edinburgh University Press, 1989. *Boyle, Alan; Himsworth, Chris; MacQueen, Hector
''Human Rights and Scots Law: Comparative Perspectives on the Incorporation of the ECHR''
Hart Publishing, 2002. *Bradley, Anthony Wilfred; Ewing, Keith D
''Constitutional and Administrative Law''
Pearson Education, 2007. *Davidson, Fraser; MacGregor, Laura. ''Commercial Law in Scotland''. W. Green & Son, 2008. * Erskine, ''An Institute of the Law of Scotland'' * Gretton, George; Steven, Andrew. ''Property, Trusts and Successions''. Tottel Publishing, 2009. *Jones, Timothy; Christie, Michael. ''Criminal Law''. W. Green & Son, 2008. *Palmer, Veron
''Mixed jurisdictions worldwide: the third legal family''
Cambridge University Press, 2001. *Reid, Kenneth; Zimmerman, Reinhard
''A History of Private Law in Scotland: I. Introduction and Property''
Oxford University Press, 2000. *Reid, Kenneth; Zimmerman, Reinhard
''A History of Private Law in Scotland: II. Obligations''
Oxford University Press, 2000. * Smith, Thomas. ''A Short Commentary on the Law of Scotland''. Green & Son Ltd, 1962. * ''The Laws of Scotland: Stair Memorial Encyclopaedia''
Lexis Library
*Tetley, William Q.C
''Mixed Jurisdictions: common law vs. civil law (codified and uncodified)''
4 Uniform L. rev. (N.S.), 1999. *Thomson, Stephen
''Mixed Jurisdiction and the Scottish Legal Tradition: Reconsidering the Concept of Mixture''
(2014) 7(1) Journal of Civil Law Studies 51-91 *White, Robin; Willock, Ian. ''The Scottish Legal System''. Tottel Publishing, 2007.


External links

* * * * * {{DEFAULTSORT:Scots Law