Abstract
Even the briefest glance at its history and development shows present day Scots law to be of very mixed ancestry. Little is known about the customs of the indigenous Picts. Around 500 AD, however, settlement by the Scots of Ulster brought with it a range of Celtic laws and institutions, while similar settlement of Orkney and Shetland by the Scandinavians led to the introduction of Udal law.1 This, probably largely in the form of the Code of King Magnus the Law Mender, remained operational in Orkney and Shetland at least until the ceding of the islands to Scotland in 1468–9. How far it survived beyond this date is a matter of dispute, as shown in the St Ninian’s treasure case.2
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References
It also seems to have had some kind of standing in Caithness and Sutherland and, possibly, more generally in the coastal areas of the north east.
Lord Advocate v Aberdeen University and Budge 1963 SC 533. See, for a general discussion of udal law, Sir Thomas Browne Smith’s entries in The Laws of Scotland.• the Stair Memorial Encyclopaedia (Edinburgh: The Law Society of Scotland/Butterworths, 1988) and, on its survival, Jane Ryder, ‘Udal Law: An Introduction’ in (1988) 25 Northern Studies 1.
1972 SC (HL) 25. I owe this example, as various other points on Celtic law, to Malcolm Waters.
For a fuller discussion see O F Robinson, T D Fergus and W M Gordon, An Introduction to European Legal History, 2nd edn (London: Butterworth, 1994) especially, for Scotland, chs IX and XIV. Also D M Walker, The Scottish Legal System (cit ch II, n. 11) and
W A Wilson, Introductory Essays in Scots Law 2nd edn (Edinburgh: W Green & Sons, 1984).
Compare Glanville, De Legibus et Consuetidinibus Angliae, c 1190, with the Regiam Maiestatem, probably early fourteenth century. Also, for procedure, the Quoniam Attachiamenta, also fourteenth century.
This was in the case of a grant ‘in free regality’. There was also a lesser grant — ‘in free barony’.
Although with change of function, Dean of Guild Courts lasted in Scotland until 1975.
Initially, Berwick, Edinburgh, Roxburgh and Stirling; then, following English occupation of Berwick and Roxburgh, Edinburgh, Stirling, Lanark and Linlithgow. Later most of the Burghs came to be represented, so that by the 1550s it had become a Convention of the Burghs. There is something of a contemporary parallel in COSLA (The Convention of Scottish Local Authorities).
Either in the form of appointed judges delegate in Scotland or to a tribunal in Rome (the Sacra Romana Rota).
Lord Cooper of Culross, ‘The Dark Age of Scottish Legal History 1350–1650’ in Selected Papers (cit. ch III, n.1).
The SheriffCourt was a target up to the abolition of heritable jurisdictions in 1748, following the Heritable Jurisdictions (Scotland) Act 1746. For earlier times, see e.g. passages in Sir David Lyndsay’s Ane Satyre of the Thrie Estaits, ed James Kinslev (London: Cassell, 1954).
James J Robertson, ‘The Development of the Law’ in Jennifer M Brown ed, Scottish Society in the 15th Century (London: Edward Arnold, 1977).
This idea is substantiated to the extent that the Court of Session adopted romano-canonical procedures from the outset.
Lord Cooper, Selected Papers (cit. n. 10) at p 229.
1932 SC (HL) 1. The celebrated ‘snail in the bottle’ case.
Dating mainly from the sixteenth century but occurring earlier too, as for example, in France during the days of the Auld Alliance.
Selected Papers (cit. n. 10) at p 88.
Acts of the Parliament of Scotland, ii 182 c. 11. For another example, see the Act of 1540/1 on feu farm tenure (APS ii 376 c. 35) which, preamble apart, was identical with an Act of 1503/4 (APS ii 253 c. 35).
Variously Parliamentary auditors and Lords of Council.
Conferred by the College of Justice Act 1540 APS ii 371 c. 10. An interesting aspect of the procedure was the practice of a judgment being given by the whole court. This remains the continental model but tends to be found in Scotland today only in the Court of Criminal Appeal.
The courts granted divorce for adultery straight away and began to do so for malicious desertion. The latter practice was recognised by statute in 1573, c. 55: Anent thame that divertes fra uthers being joyned of befoir in lauchfull Mariage.
Appeal lay to the Court of Session.
Commencing with Balfour in the 1570s.
I i 16.
I i 17. Some law students may feel that little has changed. Compare, too, Hume’s ‘The Law ... appear’d nauseous to me’ and Alasdair MacIntyre’s comment ‘Hume’s view of the study of law as quite other than that of philosophy marks ... a break with the dominant Scottish tradition’. Whose Justice? Which Rationality? (London: Duckworth,1988) p 283 . (I am indebted to John Tasioulas for this reference).
I i 15.
More doubtful are Mackenzie’s Institutions 1678, Erskine’s Principles 1754 and Kames Principles 1760.
There is some uncertainty over Alison, both Principles 1832 and Practice 1833.
A Short Commentary on the Law ofScotland (Edinburgh: W Green, 1962) p 32.
‘The Scottish Judicature and Legal Procedure’ (Address to the Holdsworth Club 1941).
e.g. Lord Robertson in Cameron v Young 1908 SC (HL) 7; Lord Dunedin in Dumbreck v Addie & Sons (Collieries) Ltd 1929 SC (HL) 51; and (in the writer’s opinion, though not all Scots lawyers would agree) Lord Reid in White & Carter (Councils) Ltd v Macgregor 1962 SC (HL) 1.
Bartonshill Coal Company v Reid 1858 3 Macq 266, establishing that an employer was not vicariously liable where one of his employees injured another in the course of employment.
Law Reform (Personal Injuries) Act 1948.
(cit. n. 31).
Occupiers Liability (Scotland) Act 1960 s. 2.
[1972] AC 877.
According, however, to Lord President Inglis in Virtue v Alloa Police Commissioners 1873 1R 285, it would be an error in constitutional law to do so since, in his opinion the House always sat in one character, ‘as the House of Lords of the United Kingdom’. He does not, though, explain the basis of his opinion and it appears not to have foùnd favour more generally with the Scottish judiciary.
Fleeming v Orr 1855 2 Macq. 14, to the effect that strict liability for injuries caused by domestic animals only arose where that animal was known to have dangerous propensities. Now removed by the Animals (Scotland) Act 1987.
Approximately, the restriction of rights and obligations arising from a contract to the parties to it. As discussed in T B Smith, ‘The Common Law Cuckoo: Problems of “Mixed” Legal Systems with Special Reference to Restrictive Interpretations in the Scots Law of Obligations’ in Studies Critical and Comparative (Edinburgh: W. Green, New York: Oceania, 1962).
Ibid.
See T B Smith, A Short Commentary (cit. n. 29) p 809f.
See T B Smith, ‘English Influences on the Law of Scotland’ in Studies Critical and Comparative including his reference to D M Walker ‘A Note on Precedent (1949) 61 Juridical Review and the finding that 25% of the cases cited in the Court of Session since ‘Hitler’s war’ were English. More recent research suggests a similar level.
e.g. Sale of Goods Act 1979.
See e.g. Neil Gow QC, ‘Can Scotland’s Separate Legal System Survive?’ The Law Magazine 22 January 1988.
Now Rule of Court 58; formerly Rule 260B. In particular, under Scots Law there is no need for leave to apply.
Particularly in relation to scope: see e.g. West v Secretary of State for Scotland 1992 SLT 66.
For example, England may be said to have followed Scotland in allowing the possibility of rape within marriage. See S v HMA. 1989 SLT 469 and then R v R[1992] AC (HL) 599.
See e.g. B Markesinis ed, The Gradual Convergence (Oxford: Clarendon Press, 1994);
P de Cruz, Comparative Law in a Changing World (London: Cavendish, 1995);
R Jagtenberg, E Örücü & A de Roo eds, Tranfrontier Mobility of Law (The Hague: Kluwer Law International, 1995); but, also, contra P Legrand, ‘European Legal Systems are not converging’ (1996) 45 ICLQ 52.
Quoted in Lord Cooper of Culross, Selected Papers (cit. n. 10) at p198.
Zweigert and Kötz, Introduction to Comparative Law (cit. Intro, n. 8) at p 70.
‘The Internal Logic of Legal Systems’ (1987) 7 Legal Studies p 310.
With Turkey this included a Civil Code from the Swiss Civil Code and Code of obligations; a Penal Code from the Italian Code of 1889; and a Commeicial Code, from the German Code of 1887 and the Italian Code, all in 1926, and then, in 1927, the Code of Civil Procedure from the Swiss Canton of Neuchatel, followed by, in 1929, three more codes, including a Code of Criminal Procedure from the German Code of 1877. On this, see Esin Örücü, ‘Turkey: Change under Pressure’ in Örücü, Attwooll and Coyle ed Studies in Legal Systems: Mixed and Mixing (cit ch II, n. 32).
With Japan, reception of German law began in the 1880s, although the Criminal Code of 1882 was French in basis and the Civil Code of 1898 was influenced by both systems. The Japanese Constitution, however, was the result more of imposition although endorsed by the Parliament — see e.g. Setsuko Sato in ‘The Validity of a Constitution Established through a Revolution: The Case of Japan’ in E Attwooll ed, Shaping Revolution (Aberdeen: Aberdeen University Press, 1991).
Amongst many possible examples, by the British on the native peoples in Quebec and Australia and by the French in Algeria.
On Scotland and the Scotch Intellect (cit. ch III, n. 27) at p 243.
For the claim — by a Scot — that legal reasoning generally is, partially at least, a deductive process see Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978) especially chs II and III, responses to this by Alida Wilson, ‘The Nature of Legal Reasoning: A Commentary with regard to Professor MacCormick’s Theory’ (1982) 2 Legal Studies 269, followed at p 286 by MacCormick, ‘The Nature of Legal Reasoning: a brief reply to Dr Wilson’ ; and by Bernard Jackson, Law, Fact & Narrative Coherence (Merseyside: Deborah Charles Publications, 1988) esp ch III and, in response, MacCormick, ‘Notes on Narrativity and the Normative Syllogism’ (1991) 4 International Journal for the Semiotics of Law 163 and further exchanges in (1992) 5 International Journal for the Semiotics of Law. See also the revised Foreword in the 1994 paperback edition of Legal Reasoning and Legal Theory.
R M Dworkin, ‘Is Law a System of Rules’ in R Summers ed, Essays in Legal Philosophy (Oxford: Blackwell, 1968). See the response by Colin Tapper, ‘A Note on Principles’ (1971) 34 Modern Law Review 628. See also,
R M Dworkin, Taking Rights Seriously (London: Duckworth, 1977) esp ch 2.
See e.g. N MacCormick ‘“Principles” of Law’ 1974 Juridical Review 217. And, for a contrary view, R H S Tur ‘Positivism, Principles and Rules’ in E Attwooll ed, Perspectives in Jurisprudence (Glasgow: Glasgow University Press, 1977).
Also, there is the power of the High Court of Justiciary, in exceptional cases, to declare behaviour criminal although it was not, or not clearly, so before. See Baron Hume’s Commentaries on the Law of Scotland Respecting Crimes and the case of Bernard Greenhuff 183 8 2 Swin 236. For comment and further references see Lindsay Farmer, ‘“The Genius of our Law ...”: Criminal Law and the Scottish Legal Tradition’ (1992) 55 Modern Law Review 25.
From W Ashburner, Principles of Equity (1902) p 23 but this view was rejected by Lord Diplock in United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 at pp 924–5, where he stated that ‘this metaphor has become mischievous and deceptive. . . If Professor Ashburner’s fluvial metaphor is to be retained at all, the waters of the confluent streams of law and equity have surely mingled now’.
Also, until this Act (s. 11), proof of some less formal agreements had to be by writ or oath. Now it may be by any means.
e.g. the Consumer Credit Act 1974 s 60.
S. 1(2)(c).
Introduction to Comparative Law (cit. n. 50) at p 65.
For more detail on both of these see ch V.
See D N MacCormick, ‘Law as Institutional Fact’ (cit. ch II, n. 7).
Set up following the Kilbrandon Report (Cmnd 2306) under the Social Work (Scotland) Act 1968. See now the Children (Scotland) Act 1995.
The former initially in consequence of the Solvent Abuse (Scotland) Act 1983; now see the Children (Scotland) Act 1995 s. 52(2)(k). The latter, under s. 52(2)(j) implements the UN Convention on the Rights of the Child.
See, however, the views expressed by J A G Griffith, The Politics of the Judiciary 4th edn (London: Fontana, 1991) and the implication that judicial decision making is always goal oriented.
Administering the affairs of another without authority but in circumstances where it is reasonable to do so.
Currently under review, although the weight of opinion seems to be in favour of its retention.
See n. 59.
As homosexual behaviour between the passing of the (English) Sexual Offences Act 1967 and the Criminal Justice (Scotland) Act 1980.
Criminal Justice (Scotland) Act 1980 s. 6. See also the effects of the Criminal Justice (Scotland) Act 1995 s. 10.
Prosecution began to be placed in the hands of the Lord (then the King’s) Advocate in the latter part of the sixteenth century. The system is currently adminstered through the Crown Offiice in Edinburgh but operates largely through locally based Procurators-Fiscal. Private prosecutions by injured persons are still possible but these are very rare indeed and cannot take place without either the concurrence of the Lord Advocate or the consent of the High Court.
15 jurors, with 8 being sufficient for a majority.
Including HMA v Dingwall (1867) 5 Irv. 466; HMA v Savage 1923 JC 49; HMA v Braithwaite 1945 JC 55.
i.e. respectively, the introduction of the Crown Prosecution Service; of majority verdicts (though on a 10–2 basis); and of diminished responsibility by the Homicide Act 1957 s. 2.
‘Family Law: Pre-consolidation Reforms’. Scot. Law Com. Discussion Paper No 85, 1990, paras 2.1–2.19.
The Age of Legal Capacity (Scotland) Act 1991 introduced a statutory regime in which 16 has become the relevant age for both sexes for most purposes. There are, however, certain exceptions and see also the Children (Scotland) Act 1995 which confers certain rights at the age of 12.
Ius relicti, ius relictae and legitim.
Very crudely, the doctrine of consideration means that an agreement is only binding if for value, that of cause means that any party to an agreement or undertaking must be able to gain some legitimate satisfaction from it. Cause is, therefore, a much wider notion than consideration, covering, for example, the invalidity of contracts made for immoral purposes.
It has been argued that this might be utilised to afford a right of privacy under Scots law. See David L Carey Miller 1980 SLT (News) 109.
“ The Land Tenure Reform (Scotland) Act 1974 made redemption of feu duty (if allocated) compulsory on sale.
See Robert Rennie, ‘The Feudal System — Going, Going, Gone?’ 1995 Juridical Review 321.
For the Court of Session. The equivalents in the High Court of Justiciary are Acts of Adjournal.
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Attwooll, E. (1997). The Style of Scots Law. In: The Tapestry of the Law. Law and Philosophy Library, vol 26. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8800-3_4
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