What is Scots Law?
While it takes a three year LL.B Law Degree in Scots Law to properly understand all the intricacies of Scots Law, Wikipedia has summarised it more usefully in recent years:-
Scots law (Scottish Gaelic: Lagh na h-Alba) is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irish law, it is one of the three legal systems of the United Kingdom. Scots law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. Legislation affecting Scotland and Scots law is passed by the Scottish Parliament on all areas of devolved responsibility, and the United Kingdom Parliament on reserved matters. Some legislation passed by the pre-1707 Parliament of Scotland is still also valid.
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 in most of the country, with the Britons and Anglo-Saxons in some districts south of the Forth and with the Norse in 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 other, especially Anglo-Norman and continental legal traditions. Although there was some indirect Roman law influence on Scots law, the direct influence of Roman law was slight up until around the 15th century. After this time, Roman law was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and Roman law was in this way partially received into Scots law.
Since the Union with England Act 1707, Scotland has shared a legislature with England and Wales. Scotland retained a fundamentally different legal system from that south of the border, but the Union exerted English influence upon Scots law. 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 (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.
The UK Withdrawal from the European Union (Continuity) (Scotland) Act 2020 was passed by the Scottish Parliament in December 2020. It received royal assent 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 among Scots law, English law, and Northern Irish law in areas such as property law, criminal law, trust law, inheritance law, evidence law, and family law, 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.
FAQs on Scots Law
What makes Scots law different?
Scots law differs from English law primarily because Scotland did not separate the administration of equity and law, whereas in England, equity operates alongside common law. The Scottish approach to equity is more integrated within the legal system.
What is the rule of law in Scots law?
The rule of law in Scots law means that no one is above the law. Historically, monarchs ruled with absolute authority, but modern legal principles assert that even rulers are subject to the law.
How does Scottish law work?
Scots law is a hybrid legal system, incorporating elements of both civil law (influenced by Roman law) and common law. Its development diverged from English law and has distinct civil law roots based on continental legal traditions.
What is common law in Scots law?
Scots common law is derived from Roman law and principles that have developed over time. It ensures consistent treatment of cases, with higher court decisions serving as binding precedents for lower courts.
How different are English and Scottish law?
There are several differences between the two legal systems, including the fact that Scottish juries can deliver a “not proven” verdict and that tort law in Scots law is known as the law of delict, which is rooted in Roman law.
What are legal rights in Scots law?
Legal Rights under Scots law entitle a spouse, civil partner, and children of the deceased to a share of the moveable estate, whether the deceased left a will (testate) or not (intestate), as outlined in the Succession (Scotland) Act 1964.
Does Scots law apply in England?
Scots law does not apply in England. If a legal point from Scotland pertains only to Scots law, decisions made in Scotland are not binding in England, though each jurisdiction can influence the other’s rulings.
What is a real right in Scots law?
Scots law recognizes obligations, including unilateral promises that do not require acceptance or consent to be binding, unlike offers or contracts, which require mutual consent to be legally enforceable.
What is the new Scottish law?
Specific UK laws apply to Scotland, though the Scottish Parliament also passes statutes relevant only to Scotland. Scottish law is influenced by both UK-wide and Scotland-specific legislation.
