Scottish Law or Scots Law

Some commentators[54] would also con­si­der that the fol­lowing works should be inclu­ded: Scot­tish com­mon law should not be con­fu­sed with Eng­lish com­mon law, which has dif­fe­rent his­to­ri­cal roots. [49] The his­to­ri­cal roots of Scot­tish com­mon law are the cus­to­ma­ry laws of the various cul­tures that inha­bi­ted the area, which were mixed by Scot­tish kings with feu­dal con­cepts to form their own com­mon law. [49] [50] [51] Com­plex or high-value cases may be heard at first instance befo­re the Outer Cham­ber of the Court of Ses­si­on, with the Court of Ses­si­on having con­cur­rent juris­dic­tion over all cases with a mone­ta­ry value excee­ding £100,000. [71] Outer House decisi­ons are appealed to the Inner House of the Court of the Court of Ses­si­on and (whe­re per­mit­ted by Inner House or in mat­ters of decen­tra­li­sa­ti­on) and then to the Supre­me Court of the United King­dom. Ear­ly Scot­tish law befo­re the 12th cen­tu­ry con­sis­ted of the diver­se legal tra­di­ti­ons of the dif­fe­rent cul­tu­ral groups inha­bi­t­ing the coun­try at the time, the Gaels in most of the coun­try, with the Bri­tish and Anglo-Saxons in some districts south of the Forth, and with the Scan­di­na­vi­ans on the islands and north of the River Oykel. The intro­duc­tion of feu­da­lism from the 12th cen­tu­ry and the expan­si­on of the King­dom of Scot­land estab­lis­hed the modern roots of Scots law, which was gra­du­al­ly influ­en­ced by others, par­ti­cu­lar­ly the Anglo-Nor­man and con­ti­nen­tal legal tra­di­ti­ons. Alt­hough the­re was an indi­rect influ­ence of Roman law on Scots law, the direct influ­ence of Roman law was weak until about the 15th cen­tu­ry. After this peri­od, Roman law was often adop­ted in an adap­ted form by the courts, whe­re the­re was no nati­ve Scot­tish rule for sett­ling a dis­pu­te; and Roman law was thus par­ti­al­ly incor­po­ra­ted into Scots law. Appeals from sum­ma­ry con­vic­tions and sum­ma­ry con­vic­tions are heard by the Sheriff‘s Court of Appeals, and decisi­ons of the Sheriff‘s Court of Appeal may be appealed to the High Court of Jus­ti­ce only with lea­ve and only on points of law. [67] [68] [69]: Arti­cles 118–119 During the Scot­tish Wars of Inde­pen­dence, legal deve­lo­p­ment in Scot­land see­med to have slo­wed down, pro­bab­ly influ­en­ced by widespread social unrest. As a Scot­tish law gra­dua­te, I am often asked how law in Scot­land dif­fers from Eng­lish law.

This arti­cle exami­nes the Scot­tish legal sys­tem to show that, alt­hough the­re are dif­fe­ren­ces bet­ween the two juris­dic­tions, the cha­rac­te­ris­tics of the Scot­tish sys­tem are not as for­eign as they may seem. The influ­ence that Eng­lish-trai­ned jud­ges have had on Scot­tish com­mon law through decisi­ons of the Supre­me Court of the United King­dom (and form­er­ly the House of Lords) has some­ti­mes been con­si­derable, par­ti­cu­lar­ly in are­as of law whe­re respect was requi­red throughout the United King­dom for prag­ma­tic rea­sons. This has led to judgments with ten­se inter­pre­ta­ti­ons of Scot­tish com­mon law, such as Smith v. Bank of Scot­land. [52] In a broa­der sen­se, Scots law is a “mixed sys­tem”, that is: a law that com­bi­nes ele­ments of com­mon law – the sys­tem that exists in Eng­land, the United Sta­tes, many Com­mon­wealth coun­tries and else­whe­re – and civil law, which is based on Roman law, which is par­ti­cu­lar­ly, but not exclu­si­ve­ly, cha­rac­te­ris­tic of con­ti­nen­tal Euro­pean legal sys­tems. The balan­ce bet­ween the­se two ele­ments in Scots law is con­tes­ted his­to­ri­cal­ly, legal­ly and ideo­lo­gi­cal­ly. In the Midd­le Ages, many aspects of Scots law resem­bled Eng­lish law and were pro­bab­ly deri­ved from Eng­lish law, part­ly under the influ­ence of Anglo-French sett­lers in Scot­land. In the area of crime, Eng­land and Scot­land had jurors. In land law, both were mar­ked by the begin­ning of many affairs by roy­al writ­ten orders – known in Eng­land as writs and in Scot­land as cor­rup­ters. For examp­le, the recent ille­gal sei­zu­re of land could be trea­ted by the writ of new dis­sisi­ne in Eng­land and the brief of the new dis­sisi­ne in Scot­land. The Scot­tish Bar has two main bran­ches, lawy­ers and bar­rists. [80] Lawy­ers, the equi­va­lent of Eng­lish lawy­ers, belong to the Facul­ty of Advo­ca­tes, which dis­tin­guis­hes bet­ween juni­or coun­sel and seni­or advo­ca­tes, the lat­ter being refer­red to as King‘s Coun­sel or Queen‘s Counsel.

Lawy­ers spe­cia­li­ze in pre­sen­ting cases befo­re the courts with almost exclu­si­ve hea­ring rights and in pro­vi­ding legal opi­ni­ons. They usual­ly recei­ve inst­ruc­tions from cli­ents indi­rect­ly through lawy­ers, alt­hough in many cases they may be direc­ted direct­ly by mem­bers of cer­tain pro­fes­sio­nal asso­cia­ti­ons. [ref. nee­ded] The lower civil court is She­riff Court, a for­mer court dating back to the 12th cen­tu­ry. Scot­land is divi­ded into several she­riffs, each con­sis­ting of a seni­or she­riff and a num­ber of full-time she­riffs. Courts are held regu­lar­ly in all major cities of each sheriff‘s cathe­dral. Sheriff‘s courts have both civil and cri­mi­nal juris­dic­tion. In civil cases, the she­riff usual­ly makes decisi­ons alo­ne, alt­hough some­ti­mes assis­ted by a seven-mem­ber jury. In cri­mi­nal cases, the accu­sed is tried sum­ma­ri­ly or with 15 jurors.

In the civil court, the appeal belongs to the Chief She­riff, then to the Court of Ses­si­on or direct­ly to the Court of Ses­si­on; in cri­mi­nal mat­ters, it is the respon­si­bi­li­ty of the High Court of Jus­ti­ce. The histo­ry of the deve­lo­p­ment of Scots law dates back to the 11th cen­tu­ry, but the­re have essen­ti­al­ly been two par­ti­cu­lar­ly important pha­ses. The influ­ence of civil law dates back to the time when Scot­land and Eng­land were com­ple­te­ly sepa­ra­te coun­tries. During this peri­od, Scot­land model­led its own laws on Euro­pean sys­tems, par­ti­cu­lar­ly Fran­ce, which was hea­vi­ly influ­en­ced by Roman law. The next step fol­lo­wed the Uni­on of Crowns in 1603 and the Uni­on of Par­lia­ments in 1707. From the­re, Anglo-Ame­ri­can influ­ence in Scots law beca­me evi­dent. Thus, while modern Scots law has deve­lo­ped its own rules, the­se can be traced back to com­mon roots with the Eng­lish sys­tem and fur­ther back to anci­ent Rome. Ano­t­her com­mon view is that the­re is no trespas­sing law in Scot­land. This is inde­ed not true. Trespas­sing has long been a civil injus­ti­ce, and the­re can also be trespas­sing offen­ces under the law.

In the area of pro­per­ty rights, many rem­nants of medi­eval feu­dal esta­tes in Eng­land were remo­ved by the Ten­u­res Aboli­ti­on Act 1660. In Scot­land, howe­ver, feu­dal ele­ments, par­ti­cu­lar­ly the pay­ment of annu­al fire duties to a supe­ri­or, were main­tai­ned much lon­ger and only ended by the Aboli­ti­on of Feu­dal Ten­u­re etc. (Scot­land) Act 2000. From the 14th cen­tu­ry we have sur­vi­ving examp­les of ear­ly Scot­tish legal lite­ra­tu­re, such as the Regi­am Majes­tatem (on pro­cee­dings befo­re the roy­al courts) and the Quo­ni­am Atta­chia­men­ta (on pro­cee­dings befo­re the baron­nel courts). [26] The two important texts, as copied, con­tai­ned pro­vi­si­ons of Roman law and ius com­mu­ne, showing the influ­ence of the­se two sources on Scots law. [27]. The High Court of Jus­ti­ce is Scotland‘s hig­hest cri­mi­nal court. It can act both as a court of first instance and as a court of first instance, whe­re it hears the most serious cri­mi­nal cases such as rape and mur­der. Alt­hough it has a per­ma­nent base in Edin­burgh, Glas­gow and Aber­deen, it can also sit in other cities across the coun­try as a court of first instance in local sheriff‘s courthouses. To hear appeals, howe­ver, it sits only in Edin­burgh. As a tri­al court, it sits with a judge and jury, but at least three jud­ges may be pre­sent on appeal.

The High Court can hear appeals from its­elf (at first instance), the Sheriff‘s Courts or the JP Courts, and the Scot­land Act 2012 pro­vi­des for a new pro­ce­du­re to chal­len­ge cer­tain Scot­tish cri­mi­nal cases in the UK Supre­me Court, alt­hough this power has not yet been used.