Legal System of Scotland
The Scottish legal system, as the English, was formed in the process of a lengthy historical evolution. However, the various historical factors that influenced the State formation of Scotland and England led to their legal systems differing one from the other.
Scotland could not fail to be subject to English influence. The Scottish kings rather early accepted those institutions which furthered the centralisation of their power. Thus, in Scotland there appeared circuit courts analogous to the English (sheriffs and justiciaries), the institution of juries, and then unified central royal courts.
The French legal orientation which commenced after the "wars for independence" against England (1298-1326) was expressed in the fact that jurists of Scotland turned to Romano-canon law.
From Roman law were borrowed certificates, delicts, and norms on moveable property. Canon law applicable in canon courts regulated marriage and family relations, inheritance, and contract relations. The development of Scottish law proceeded not in parallel with English Common law, but rather gradually diverged from it.
Until the fifteenth century Scotland did not have its own universities, and therefore future jurists were sent to the universities of France, Germany, and Netherlands, where they studied principally Roman law, which at the time played the role of the Common law of Scotland. To this day it has retained its influence in individual institutions of civil law, legal terminology, and dividing law into public and private.
During the thirteenth to nineteenth centuries, Scottish jurists continued to borrow continental legal experience, especially French and Dutch.
The Union with England in 1707 furthered the strengthening of the Common law traditions. The growing impact of the English Common law occurred gradually. Scottish courts wholly accepted the English precedential system. The law of Scotland was never codified, but was formed from the very outset from the judicial decisions of sheriffs and justiciaries. However, the Scottish method of interpreting norms of law is closer to the Romano-Germanic than to the Anglo-Saxon.
In Scotland, as in the Romano-Germanic legal family, specific legal questions are drawn from a general principle, whereas in the countries of the Anglo-Saxon legal family, on the contrary, judges formulate the general principle by proceeding from specific instances.
When comparing English and Scottish law in their historical development, three basic factors may be noted:
First, unlike England, there was no dualism in Scotland of civil law in the form of a parallel system of Common law and law of equity norms;
Second, in Scotland the system of writs did not develop as in England;
Third, the idea of a public accusation in Scotland took the specific form of a precisely organised State criminal prosecution service.
One should not consider, however, that everything which was accepted from Roman or from Romano-Germanic law does not coincide with English institutions and norms. The Scottish legal system, while distinct from the English, does not fully copy the Romano-Germanic. Irrespective of dual influences, it retained its national peculiarities and customs formed as a result of autonomous historical development. By this means the system of courts was formed in Scotland and the judicial procedures, which give grounds to speak of the autonomy of the Scottish legal system.
Scottish jurists classify the sources of the law of Scotland by using the system and terminology of English jurisprudence: precedents, legal treatises having institutional significance, and legislation. The first two sources sometimes are called the Common law of Scotland.
The doctrine of precedent began to form in Scotland after its forcible accession to England. By the nineteenth century the principle of precedent was finally confirmed in Scottish courts. He actually did not differ in content from the English, although it has distinctive features. With the establishment of the right of the House of Lords to consider Scottish appeals in civil cases, its decisions were absolutely binding upon the courts of Scotland. However, the decisions of the House of Lords in criminal cases considered by English courts were not binding in Scotland. Precedents relating to norms analogous in the two regions possess, though, a special persuasive force.
The decisions of other Scottish and English courts are not binding upon one another, although there are those relegated to the category of "persuasive" precedents (reciprocally), especially those which interpret statutes of the United Kingdom in those spheres where uniformity is desirable (for example, in the law of taxation).
The publication of court reports (precedents) became routine only in the mid-nineteenth century, when annual series of Sessions Cases began to appear. In addition, decisions of the House of Lords with regard to Scottish appeals could be found in the All England Law Reports.
Legislation of Scotland consists of laws adopted by the parliament of Scotland before 1707, laws of the parliament of Great Britain adopted from 1707 to 1800, and laws issued after 1801, when as a result of the accession of Northern Ireland the United Kingdom of Great Britain and Northern Ireland was formed.
Acts of (he Scottish Parliament issued before 1707 continue in principle to operate to the present day, being periodically reviewed, repealed, and republished.
In 1948 the annual publication of current Scottish legislation commenced, which continues to now. The collection includes the Rules of civil procedure and Rules of criminal procedure issued by the Sessions and High Court (the highest courts of Scotland), which are equated to laws by virtue of the historically-formed right of Parliament to delegate its judicial powers. In fact, they are treated as acts of delegated legislation. All other acts of delegated legislation are published in the general collection of subordinate acts in the form of annually-published volumes augmented by volumes containing changes and additions.
After the entry of Great Britain into the European communities, Scottish jurists, just as English, recognise as a source of law acts issued by organs of the European communities and now the European Union.
As I. Iu. Bogdanovskaia justly observes, the principle of precedent operates in Scotland and precedential law is created. The law of precedent operating under the influence of precedents of the House of Lords and of laws enacted by the English Parliament, are for Scotland the same channels by which the impact of English law occurs. As a result, the legal system of Scotland, having roots in Romano-Germanic law, is now developing more towards the English Common law. That is why we consider Scottish law in the section devoted to the legal family of the Common law, and not in the section on "Mixed Legal Systems", as is widely done in comparativist literature.