Scots law

Scots law

Overview
Scots law is the legal system of Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...

. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

 and Northern Irish law it forms the legal system of the United Kingdom
Law of the United Kingdom
The United Kingdom has three legal systems. English law, which applies in England and Wales, and Northern Ireland law, which applies in Northern Ireland, are based on common-law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-law principles, with common law...

; it shares with the two other systems some elements but it also has its own unique sources and institutions. The law in Scotland was Celtic until the Anglo-Norman era, but after that point, feudal
Feudalism
Feudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for ordering society around relationships derived from the holding of land in exchange for service or labour.Although derived from the...

 and gradually common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 began to establish itself.
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Encyclopedia
Scots law is the legal system of Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...

. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

 and Northern Irish law it forms the legal system of the United Kingdom
Law of the United Kingdom
The United Kingdom has three legal systems. English law, which applies in England and Wales, and Northern Ireland law, which applies in Northern Ireland, are based on common-law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-law principles, with common law...

; it shares with the two other systems some elements but it also has its own unique sources and institutions. The law in Scotland was Celtic until the Anglo-Norman era, but after that point, feudal
Feudalism
Feudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for ordering society around relationships derived from the holding of land in exchange for service or labour.Although derived from the...

 and gradually common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 began to establish itself. On succeeding to the throne in 1124, King David I
David I of Scotland
David I or Dabíd mac Maíl Choluim was a 12th-century ruler who was Prince of the Cumbrians and later King of the Scots...

 introduced elements of Anglo-Norman laws and legal institutions, such as sheriffs and justices. An early Scottish legal compilation, Regiam Majestatem
Regiam Majestatem
The Regiam Majestatem is the earliest surviving work giving a comprehensive digest of the Law of Scotland. The name of the document is derived from its first two words...

, was based heavily on Glanvill's English law treatise
Tractatus of Glanvill
The Tractatus de legibus et consuetudinibus regni Angliae is the earliest treatise on English law. Commonly attributed to Ranulf de Glanvill and dated ca. 1188, it was revolutionary in its systematic codification that defined legal process and introduced writs, innovations that have survived to...

, although it also contains elements of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

, feudal law, canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...

, customary law and native Scots statutes. Although there was some indirect Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...

 influence on Scots law, via the civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 and canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...

 used in the church courts, the direct influence of Roman law was slight up until around the mid-fifteenth century. After this time, Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...

 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 Acts of Union 1707
Acts of Union 1707
The Acts of Union were two Parliamentary Acts - the Union with Scotland Act passed in 1706 by the Parliament of England, and the Union with England Act passed in 1707 by the Parliament of Scotland - which put into effect the terms of the Treaty of Union that had been agreed on 22 July 1706,...

, it has shared a legislature with the rest of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

. Scotland retained a fundamentally different legal system from that of England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...

, but the Union brought English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

 influence on Scots law. In recent years, Scots law has also been affected by European law under the Treaty of Rome
Treaty of Rome
The Treaty of Rome, officially the Treaty establishing the European Economic Community, was an international agreement that led to the founding of the European Economic Community on 1 January 1958. It was signed on 25 March 1957 by Belgium, France, Italy, Luxembourg, the Netherlands and West Germany...

, the requirements of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 (entered into by members of the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...

) and the establishment of the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

 which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998
Scotland Act 1998
The Scotland Act 1998 is an Act of the Parliament of the United Kingdom. It is the Act which established the devolved Scottish Parliament.The Act will be amended by the Scotland Bill 2011, if and when it receives royal assent.-History:...

.

Scotland as a distinct jurisdiction



The United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 is a state consisting of three legal jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

s: (a) England and Wales, (b) Scotland and (c) Northern Ireland. There are substantial differences between Scots Law, English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

 and Northern Irish law
Northern Ireland law
Northern Ireland law refers to the legal system of statute and common law operating in Northern Ireland since Northern Ireland was established as a separate jurisdiction within the United Kingdom in 1921.-Background:...

 in areas such as property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...

, criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

, trusts law, inheritance law, evidence law and family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...

 while there are greater similarities in areas of national interest such as commercial law
Commercial law
Commercial law is the body of law that governs business and commercial transactions...

, consumer rights, taxation, employment law and health and safety regulations.

Some of the more important practical differences between the jurisdictions include the age of legal capacity (16 years old in Scotland, 18 years old in England), the use of 15-member juries for criminal trials in Scotland (compared with 12-member juries in England) who always decide by simple majority, the fact that the accused in a criminal trial does not have the right to elect a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...

 or jury trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...

, judges and juries of criminal trials have the "third verdict" of "not proven
Not proven
Not proven is a verdict available to a court in Scotland.Under Scots law, a criminal trial may end in one of three verdicts: one of conviction and two of acquittal ....

" available to them, and the fact that equity does not exist as a distinct branch of Scots law.

History



By the late 11th century Celtic law
Celtic law
A number of law codes have in the past been in use in Celtic countries. While these vary considerably in details, there are certain points of similarity....

 applied over most of Scotland, with Old Norse law covering the areas under Viking
Viking
The term Viking is customarily used to refer to the Norse explorers, warriors, merchants, and pirates who raided, traded, explored and settled in wide areas of Europe, Asia and the North Atlantic islands from the late 8th to the mid-11th century.These Norsemen used their famed longships to...

 control (resulting in Udal Law
Udal Law
Udal law is a near-defunct Norse derived legal system, which is found in Shetland and Orkney, Scotland and in Manx law at the Isle of Man. It is closely related to Odelsrett....

 still in very limited force in Orkney and Shetland).

In following centuries as Norman
Normans
The Normans were the people who gave their name to Normandy, a region in northern France. They were descended from Norse Viking conquerors of the territory and the native population of Frankish and Gallo-Roman stock...

 influence grew and feudal relationships of government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...

 were introduced, Scoto-Norman
Scoto-Norman
The term Scoto-Norman is used to described people, families, institutions and archaeological artifacts that are partly Scottish and partly Norman...

 law developed which was initially similar to Anglo-Norman
Anglo-Norman
The Anglo-Normans were mainly the descendants of the Normans who ruled England following the Norman conquest by William the Conqueror in 1066. A small number of Normans were already settled in England prior to the conquest...

 law but over time differences increased (especially after 1328, with the end of the wars of Scottish Independence
Wars of Scottish Independence
The Wars of Scottish Independence were a series of military campaigns fought between the independent Kingdom of Scotland and the Kingdom of England in the late 13th and early 14th centuries....

). Early in this process David I of Scotland
David I of Scotland
David I or Dabíd mac Maíl Choluim was a 12th-century ruler who was Prince of the Cumbrians and later King of the Scots...

 established the office of Sheriff
Sheriff
A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country....

 with civil and criminal jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

s as well as military and administrative functions. At the same time Burgh courts emerged dealing with civil and petty criminal matters, developing law on a continental
Continental Europe
Continental Europe, also referred to as mainland Europe or simply the Continent, is the continent of Europe, explicitly excluding European islands....

 model, and the Dean of Guild courts were developed to deal with building and public safety (which they continued to do into the mid 20th century).

From the end of the 13th century the Scottish parliament of the Three Estates developed Statute Laws.

Continental influence


Some Scots common law is based on the 6th century system of Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...

 which applied in the Eastern Roman empire around the time of Justinian. This occurred because, prior to the Reformation
Scottish Reformation
The Scottish Reformation was Scotland's formal break with the Papacy in 1560, and the events surrounding this. It was part of the wider European Protestant Reformation; and in Scotland's case culminated ecclesiastically in the re-establishment of the church along Reformed lines, and politically in...

 in 1560, much of the jurisdiction of private law came under the Church courts administering Canon law
Canon law (Catholic Church)
The canon law of the Catholic Church, is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation. It lacks the necessary binding force present in most modern day legal systems. The academic...

 with an ultimate right of appeal to the Papal court
Papal court
The Papal Household or Pontifical Household , called until 1968 the Papal Court , consists of dignitaries who assist the Pope in carrying out particular ceremonies of either a religious or a civil character....

 at Rome
Rome
Rome is the capital of Italy and the country's largest and most populated city and comune, with over 2.7 million residents in . The city is located in the central-western portion of the Italian Peninsula, on the Tiber River within the Lazio region of Italy.Rome's history spans two and a half...

. This was the basis of matrimonial law, and influenced branches such as the law of succession and contract law. For centuries Scotland was more in touch with mainland Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...

an countries than with neighbouring England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

, and many Scots lawyers had part of their legal education abroad, particularly in the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...

. As a result they were influenced by studying Roman law in continental universities.

From the 12th century the assimilation of the Celtic church
Celtic Christianity
Celtic Christianity or Insular Christianity refers broadly to certain features of Christianity that were common, or held to be common, across the Celtic-speaking world during the Early Middle Ages...

 into the Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...

 brought Canon law
Canon law (Catholic Church)
The canon law of the Catholic Church, is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation. It lacks the necessary binding force present in most modern day legal systems. The academic...

 and Church courts dealing with areas of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

. This influence extended as Medieval Scots students of Civil or Canon Law mostly went abroad, to universities in Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...

, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...

 or the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...

. (The English universities, Oxford and Cambridge
University of Cambridge
The University of Cambridge is a public research university located in Cambridge, United Kingdom. It is the second-oldest university in both the United Kingdom and the English-speaking world , and the seventh-oldest globally...

, were closed to Scots, or anyone who did not subscribe to the articles of the Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...

, until the mid 19th century.) The University of St. Andrews (1410) included the teaching of Civil and Canon Law in its purposes, though it appears that little or no such teaching took place. The University of Glasgow
University of Glasgow
The University of Glasgow is the fourth-oldest university in the English-speaking world and one of Scotland's four ancient universities. Located in Glasgow, the university was founded in 1451 and is presently one of seventeen British higher education institutions ranked amongst the top 100 of the...

 (1451) was active in law teaching in its early years, one scholar there being William Elphinstone
William Elphinstone
William Elphinstone was a Scottish statesman, Bishop of Aberdeen and founder of the University of Aberdeen.He was born in Glasgow, and educated at the University of Glasgow, taking the degree of M.A. in 1452. After practising for a short time as a lawyer in the church courts, he was ordained a...

, who then studied abroad and went on to found the University of Aberdeen
University of Aberdeen
The University of Aberdeen, an ancient university founded in 1495, in Aberdeen, Scotland, is a British university. It is the third oldest university in Scotland, and the fifth oldest in the United Kingdom and wider English-speaking world...

 (1495) which taught canon law until the mid 16th century. Studying on the European mainland continued to be the norm for Scottish law students until the 18th century.

In the early 16th century a costly war pushed James V of Scotland
James V of Scotland
James V was King of Scots from 9 September 1513 until his death, which followed the Scottish defeat at the Battle of Solway Moss...

 to do a deal with Pope Paul III
Pope Paul III
Pope Paul III , born Alessandro Farnese, was Pope of the Roman Catholic Church from 1534 to his death in 1549. He came to the papal throne in an era following the sack of Rome in 1527 and rife with uncertainties in the Catholic Church following the Protestant Reformation...

 for funds in the form of a tithe
Tithe
A tithe is a one-tenth part of something, paid as a contribution to a religious organization or compulsory tax to government. Today, tithes are normally voluntary and paid in cash, cheques, or stocks, whereas historically tithes were required and paid in kind, such as agricultural products...

 on the church in exchange for agreeing to found a College of Justice
College of Justice
The College of Justice is a term used to describe the Supreme Courts of Scotland, and its associated bodies.The constituent bodies of the supreme courts of Scotland are the Court of Session, the High Court of Justiciary, and the Accountant of Court's Office...

, in 1532. By 1560 the Reformation
Scottish Reformation
The Scottish Reformation was Scotland's formal break with the Papacy in 1560, and the events surrounding this. It was part of the wider European Protestant Reformation; and in Scotland's case culminated ecclesiastically in the re-establishment of the church along Reformed lines, and politically in...

 removed Papal authority and Canon Law jurisdiction was taken over by the Commissary Court
Commissary Court
The term Commissary Court is in use in Scots law and in the Church of England.-Scots law:At the Scottish Reformation in 1560, the system of consistorial courts where bishops exercised their civil jurisdiction over executry and matrimonial cases broke down. This led to such confusion that Commissary...

s, whose jurisdiction, along with that of the Scottish Court of Exchequer
Court of Exchequer (Scotland)
The Court of Exchequer was formerly a distinct part of the court system in Scotland, with responsibility for administration of government revenue and judicial matters relating to customs and excise, revenue, stamp duty and probate...

 was subsumed into that of the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....

 in the 19th century.

United Kingdom


The 1707 Treaty of Union, confirmed in the Act of Union, preserved the Scottish legal system, with provisions that the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....

 or College of Justice
College of Justice
The College of Justice is a term used to describe the Supreme Courts of Scotland, and its associated bodies.The constituent bodies of the supreme courts of Scotland are the Court of Session, the High Court of Justiciary, and the Accountant of Court's Office...

 (and the Court of Justiciary) ... remain in all time coming within Scotland
, and that Scots Law remain in the same force as before. One of the reasons for this concession was to guarantee the support of the influential Edinburgh lawyers for the idea of the union with England, an idea which was opposed by many Scots.

The Parliament of Great Britain
Parliament of Great Britain
The Parliament of Great Britain was formed in 1707 following the ratification of the Acts of Union by both the Parliament of England and Parliament of Scotland...

 was now unrestricted 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
Scottish Enlightenment
The Scottish Enlightenment was the period in 18th century Scotland characterised by an outpouring of intellectual and scientific accomplishments. By 1750, Scots were among the most literate citizens of Europe, with an estimated 75% level of literacy...

 then reinvigorated Scots law as a university-taught discipline. The transfer of legislative power to the Westminster parliament and the introduction of appeal to the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

 brought further English influence and it is sometimes stated that this marked the introduction of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 into the system, but Scots common law incorporates different principles and makes use of legal writings which long predate the Union (see Legal institutions of Scotland in the High Middle Ages
Legal institutions of Scotland in the High Middle Ages
Scottish legal institutions in the High Middle Ages are, for the purposes of this article, the informal and formal systems which governed and helped to manage Scottish society between the years 900 and 1288, a period roughly corresponding with the general European era usually called the High Middle...

).

Appeal decisions by English lords 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. Nowadays the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

 usually has a minimum of two Scottish justices to ensure that some Scottish experience is brought to bear on Scottish appeals.

The Scottish Highlands
Scottish Highlands
The Highlands is an historic region of Scotland. The area is sometimes referred to as the "Scottish Highlands". It was culturally distinguishable from the Lowlands from the later Middle Ages into the modern period, when Lowland Scots replaced Scottish Gaelic throughout most of the Lowlands...

 had been affected by Scots law but remained largely independent, with remnants of Celtic law still in force. Their involvement in Jacobitism
Jacobitism
Jacobitism was the political movement in Britain dedicated to the restoration of the Stuart kings to the thrones of England, Scotland, later the Kingdom of Great Britain, and the Kingdom of Ireland...

 led to a series of Acts attempting to crush the Scottish clan
Scottish clan
Scottish clans , give a sense of identity and shared descent to people in Scotland and to their relations throughout the world, with a formal structure of Clan Chiefs recognised by the court of the Lord Lyon, King of Arms which acts as an authority concerning matters of heraldry and Coat of Arms...

 structure and bring them firmly within Scots law. The Heritable Jurisdictions (Scotland) Act 1746
Heritable Jurisdictions (Scotland) Act 1746
The Heritable Jurisdictions Act 1746 was an Act of the British Parliament passed in the aftermath of the Jacobite rising of 1745....

 removed the virtually sovereign power the chiefs had over their clan, but probably affected other hereditary offices more, with the result that Sheriffs-Depute, who had actually done the work for the hereditary office holders, became crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...

 appointees and took over the role.

Scots law has continued to change and develop, with the most significant change coming with the establishment of the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

.

Legislation


The Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

 has the power to pass statutes on any issue for Scotland, although under the Sewel convention will not do so in devolved matters without the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

's consent. The Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...

, the Scotland Act 1998
Scotland Act 1998
The Scotland Act 1998 is an Act of the Parliament of the United Kingdom. It is the Act which established the devolved Scottish Parliament.The Act will be amended by the Scotland Bill 2011, if and when it receives royal assent.-History:...

 and the European Communities Act 1972
European Communities Act 1972
European Communities Act 1972 can refer to:*European Communities Act 1972 * European Communities Act 1972...

 have special status in the law of Scotland. Modern statutes will specify that they apply to Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...

 and may also include special wording to take into consideration unique elements of the legal system. Statutes must receive Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...

 from the Queen before becoming law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

, however this is now only a formal procedure and is automatic. Legislation of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

 is not subject to the review of the courts as the Parliament is said to have supreme legal authority; however, in practice the Parliament will tend not to create legislation which contradicts the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...

 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
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 and the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...

. Acts of the United Kingdom Parliament also regularly delegate powers to Ministers of the Crown or other bodies to produce legislation known as statutory instruments. This legislation has legal effect in Scotland so far as the specific statutory instrument is meant to.

The Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

 is a devolved
Devolution in the United Kingdom
In the United Kingdom, devolution refers to the statutory granting of powers from the Parliament of the United Kingdom to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly and to their associated executive bodies the Scottish Government, the Welsh Government...

 unicameral
Unicameralism
In government, unicameralism is the practice of having one legislative or parliamentary chamber. Thus, a unicameral parliament or unicameral legislature is a legislature which consists of one chamber or house...

 legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

 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
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...

 and European law, otherwise the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....

 or High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...

 have the authority to strike down the legislation as ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...

. 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
Protection of Wild Mammals (Scotland) Act 2002
The Protection of Wild Mammals Act was passed by the devolved Scottish parliament in February 2002, making Scotland the first part of the United Kingdom to ban traditional fox hunting and hare coursing.-Passage of the Act:...

 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
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...

 which, like with the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

, is automatically granted.

Legislation passed by the pre-1707 Parliament of Scotland
Parliament of Scotland
The Parliament of Scotland, officially the Estates of Parliament, was the legislature of the Kingdom of Scotland. The unicameral parliament of Scotland is first found on record during the early 13th century, with the first meeting for which a primary source survives at...

 still has legal effect in Scotland, though the number of statutes that have not been repealed are limited. Examples include the Royal Mines Act 1424
Royal Mines Act 1424
The Royal Mines Act 1424 was an act of the Parliament of Scotland stating that gold and silver mines containing ore above a certain value would belong to the king....

, which makes gold and silver mines the property of the Queen, and the Leases Act 1449, which is still relied on today in property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...

 cases.

The European Parliament
European Parliament
The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...

 and Council of the European Union
Council of the European Union
The Council of the European Union is the institution in the legislature of the European Union representing the executives of member states, the other legislative body being the European Parliament. The Council is composed of twenty-seven national ministers...

 also have the power to create legislation which will have direct effect
Direct effect
Direct effect is the principle of European Union law according to which provisions of Union law may, if appropriately framed, confer rights and impose obligations on individuals which the courts of European Union member states are bound to recognise and enforce...

 in Scotland in a range of matters specified under the Treaty on the Functioning of the European Union. All levels of Scottish courts are required to enforce European law. Only the Court of Justice of the European Union
Court of Justice of the European Union
The Court of Justice of the European Union is the institution of the European Union which encompasses the whole judiciary. Seated in Luxembourg, it has three sub-courts; the European Court of Justice, the General Court and the Civil Service Tribunal.The institution was originally established in...

 has the authority to legally review the competency of a legislative act by the European Parliament and the Council. European legislation will be annulled if it is contrary to the Treaties of the European Union
Treaties of the European Union
The Treaties of the European Union are a set of international treaties between the European Union member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures and objectives...

 or their spirit, is ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...

 or proper procedures in its creation were not followed.

Legislation which forms part of the law of Scotland should not be confused with a civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...

 as it does not attempt to comprehensively detail the law. Legislation forms only one of a number of sources.

Common law


Common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 is an important legal source in Scotland, especially in criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 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
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

 (including its predecessor the House of Lords). The degree to which decisions of the Supreme Court are binding on Scottish courts in civil matters
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...

 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
Binding precedent
In law, a binding precedent is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of...

. In criminal cases
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 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
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

 and the Court of Justice of the European Union
Court of Justice of the European Union
The Court of Justice of the European Union is the institution of the European Union which encompasses the whole judiciary. Seated in Luxembourg, it has three sub-courts; the European Court of Justice, the General Court and the Civil Service Tribunal.The institution was originally established in...

 also contribute to the common law in the interpretation of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 and European law respectively.

The common law of Scotland should not be confused with the common law of England, which has different historical roots. 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
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

 (and formerly the House of Lords) has been at times considerable, especially in areas of law where conformity was required across the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 for pragmatic reasons. This has resulted in rulings with strained interpretations of the common law of Scotland, such as 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. The generally accepted list of institutional works are:
  • Sir Thomas Craig of Riccarton's Jus Feudale (1655);
  • Sir James Dalrymple, Viscount of Stair
    James Dalrymple, 1st Viscount of Stair
    James Dalrymple, 1st Viscount of Stair , Scottish lawyer and statesman, was born at Drummurchie, Barr, South Ayrshire.-Biography:...

    's Institutions of the law of Scotland (1681);
  • Andrew MacDouall, Lord Bankton
    Bankton House
    Bankton House is a late 17th century house situated south of Prestonpans in East Lothian, Scotland. The house is located between the A1 road and the East Coast Main Line railway at .-Pre-Reformation:...

    's An Institute of the Laws of Scotland (1751-1753);
  • John Erskine of Carnock
    John Erskine of Carnock
    John Erskine of Carnock was a Scottish jurist and professor of Scottish law at the University of Edinburgh...

    's An Institute of the Law of Scotland (1773); and,
  • George Joseph Bell
    George Joseph Bell
    George Joseph Bell was a Scottish advocate and legal scholar.-Early life:George Bell was born in Fountainbridge, Edinburgh, a son of the Rev William Bell , a clergyman of the Episcopal Church of Scotland. He was the younger brother of the surgeon John Bell, and an elder brother of the surgeon...

    '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
    George Mackenzie (lawyer)
    Sir George Mackenzie of Rosehaugh, Knt. , known as Bluidy Mackenzie, was a Scottish lawyer, Lord Advocate, and legal writer.- Origins :...

    's The Institutions of the Law of Scotland (1684);
  • John Erskine of Carnock
    John Erskine of Carnock
    John Erskine of Carnock was a Scottish jurist and professor of Scottish law at the University of Edinburgh...

    's Principles of the Law of Scotland (1754); and,
  • Henry Home, Lord Kames
    Henry Home, Lord Kames
    Henry Home, Lord Kames was a Scottish advocate, judge, philosopher, writer and agricultural improver. A central figure of the Scottish Enlightenment, a founder member of the Philosophical Society of Edinburgh, and active in the Select Society, his protégés included James Boswell, David Hume and...

    ' 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
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...

. The degree to which these works are authoritative is not exact. The view of Unversity of Edinburgh
University of Edinburgh School of Law
The University of Edinburgh School of Law, founded in 1707, is a school within the University of Edinburgh, Scotland, dedicated to research and teaching in law. Known today as Edinburgh Law School, it is located in the historic Old College, the original site of the University...

 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
John Erskine of Carnock
John Erskine of Carnock was a Scottish jurist and professor of Scottish law at the University of Edinburgh...

, 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 erroded 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
Udal Law
Udal law is a near-defunct Norse derived legal system, which is found in Shetland and Orkney, Scotland and in Manx law at the Isle of Man. It is closely related to Odelsrett....

 in Orkney and Shetland. However, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.

Executive



The Scottish Government, led by the First Minister
First Minister of Scotland
The First Minister of Scotland is the political leader of Scotland and head of the Scottish Government. The First Minister chairs the Scottish Cabinet and is primarily responsible for the formulation, development and presentation of Scottish Government policy...

, is responsible for formulating policy and implementing laws passed by the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

. The Scottish Parliament nominates one of its Members to be appointed as First Minister by the Queen. He is assisted by various Cabinet Secretaries (Ministers) with individual portfolio
Ministry (government department)
A ministry is a specialised organisation responsible for a sector of government public administration, sometimes led by a minister or a senior public servant, that can have responsibility for one or more departments, agencies, bureaus, commissions or other smaller executive, advisory, managerial or...

s and remits, who are appointed by him with the approval of Parliament. Junior Scottish Ministers are similarly appointed to assist Cabinet Secretaries in their work. The Scottish Law Officers, the Lord Advocate
Lord Advocate
Her Majesty's Advocate , known as the Lord Advocate , is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament...

 and Solicitor General
Solicitor General for Scotland
Her Majesty's Solicitor General for Scotland is one of the Law Officers of the Crown, and the deputy of the Lord Advocate, whose duty is to advise the Crown and the Scottish Government on Scots Law...

  can be appointed from outside the Parliament's membership, but are subject to its approval. The First Minister, the Cabinet Secretaries 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. The Cabinet Secretary for Justice has political responsibility for policing
Policing in the United Kingdom
Law enforcement in the United Kingdom is organised separately in each of the legal systems of the United Kingdom: England & Wales, Northern Ireland and Scotland ....

, law enforcement, the courts of Scotland
Courts of Scotland
The civil, criminal and heraldic Courts of Scotland are responsible for the administration of justice. They are constituted and governed by Scots law....

, the Scottish Prison Service
Scottish Prison Service
The Scottish Prison Service is an executive agency of the Scottish Government tasked with managing prisons in Scotland...

, fire services, civil emergencies and civil justice.

Legislature


Many areas of Scots law are legislated
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

 for by the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

, in matters devolved
Devolution
Devolution is the statutory granting of powers from the central government of a sovereign state to government at a subnational level, such as a regional, local, or state level. Devolution can be mainly financial, e.g. giving areas a budget which was formerly administered by central government...

 from the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

. Areas of Scots law over which the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

 has competency include health, education, criminal justice, local government, environment and civil justice amongst others. However, certain powers are reserved to Westminster including defence
Ministry of Defence (United Kingdom)
The Ministry of Defence is the United Kingdom government department responsible for implementation of government defence policy and is the headquarters of the British Armed Forces....

, international relations
Foreign relations of the United Kingdom
The diplomatic foreign relations of the United Kingdom are implemented by the United Kingdom's Foreign and Commonwealth Office. The UK was the world's foremost power during the 19th and early 20th centuries. Throughout history it has wielded significant influence upon other nations via the British...

, fiscal and economic policy
Economy of the United Kingdom
The economy of the United Kingdom is the sixth-largest national economy in the world measured by nominal GDP and seventh-largest measured by purchasing power parity , and the third-largest in Europe measured by nominal GDP and second-largest measured by PPP...

, drugs law
Prohibition (drugs)
The prohibition of drugs through sumptuary legislation or religious law is a common means of attempting to prevent drug use. Prohibition of drugs has existed at various levels of government or other authority from the Middle Ages to the present....

, and broadcasting
Media of the United Kingdom
Media of the United Kingdom consist of several different types of communications media: television, radio, newspapers, magazines, and Internet-based Web sites. The UK also has a strong music industry. The UK has a diverse range of providers, the most prominent being principle public service...

. 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 devloved matters without the agreement of the Scottish Parliament.

Criminal courts


Less serious criminal offences which can be dealt with under summary procedure
Summary offence
A summary offence is a criminal act in some common law jurisdictions that can be proceeded with summarily, without the right to a jury trial and/or indictment .- United States :...

 are handled by local Justice of the Peace Courts
Justice of the Peace Court
A Justice of the Peace Court is the least authoritative type of criminal court in Scotland. The court operates under summary procedure and deals primarily with less serious criminal offences.-History:...

. 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 Court
Sheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom.Sheriff courts deal with a myriad of legal procedures which include:*Solemn and Summary Criminal cases...

 act as regional criminal courts and deal with cases under both summary
Summary offence
A summary offence is a criminal act in some common law jurisdictions that can be proceeded with summarily, without the right to a jury trial and/or indictment .- United States :...

 and solemn procedure
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...

. Cases can be heard either before the Sheriff or the Sheriff and a jury. The maximum penalty which the Sheriff Court can impose, where heard just by the 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.

More serious crimes and appeals from the Sheriff Court are heard by the High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...

. There is no appeal available in criminal cases to the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

, except regarding devolution matters. Cases where the accused alledges a breach of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 or European law can also be referred or appealed to the Supreme Court for a ruling on the relevant alledged breach.

Civil courts


Sheriff Courts
Sheriff Court
Sheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom.Sheriff courts deal with a myriad of legal procedures which include:*Solemn and Summary Criminal cases...

 also act as regional civil courts and deal with most cases, unless they are particularly complicated or involve large sums of money. Decisions of a Sheriff Court are appealed to the Sheriff Principal
Sheriff Principal
The office of sheriff principal is unique within the judicial structure of Scotland, and it cannot therefore readily be compared with any other judicial office. It is one of great antiquity, having existed continuously since around the 11th century...

, then to the Inner House
Inner House
The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance...

 of the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....

 and finally to the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

.

Complicated or high value cases can be heard at first instance by the Outer House
Outer House
The Outer House is one of the two parts of the Scottish Court of Session, which is the supreme civil court in Scotland. It is a court of first instance, although some statutory appeals are remitted to it by the other more senior part, the Inner House...

 of the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....

. Decisions of the Outer House are appealed to the Inner House
Inner House
The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance...

 of the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....

 and then to the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

.

Scottish courts may make a a reference for a preliminary ruling to the Court of Justice of the European Union
Court of Justice of the European Union
The Court of Justice of the European Union is the institution of the European Union which encompasses the whole judiciary. Seated in Luxembourg, it has three sub-courts; the European Court of Justice, the General Court and the Civil Service Tribunal.The institution was originally established in...

 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
Lands Tribunal for Scotland
The Lands Tribunal for Scotland is a civil court with jurisdiction over certain matters relating to land and property in Scotland. The Tribunal was established under the Lands Tribunal Act 1949, which also created the separate Lands Tribunal in England and Wales and Northern Ireland.Although the...

, the Scottish Land Court
Scottish Land Court
The Scottish Land Court is a Scottish court of law based in Edinburgh with subject-matter jurisdiction for disputes between landlords and tenants relating to agricultural tenancies and matters related to crofts and crofters. The Chairman of the Scottish Land Court is ranked as a Senator of the...

 and the Court of the Lord Lyon
Court of the Lord Lyon
The Court of the Lord Lyon, also known as the Lyon Court, is a standing court of law which regulates heraldry in Scotland. Like the College of Arms in England it maintains the register of grants of arms, known as the Public Register of All Arms and Bearings in Scotland, as well as records of...

. The Employment Appeal Tribunal
Employment Appeal Tribunal
The Employment Appeal Tribunal is a tribunal non-departmental public body in England and Wales and Scotland, and is a superior court of record. Its primary role is to hear appeals from Employment Tribunals in England, Scotland and Wales...

 is also an example of a cross-jurisdictional tribunal.

Legal profession


The Scottish legal profession has two main branches, Advocates and Solicitors.

Advocates, the equivalent of the English Barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...

s, belong to the Faculty of Advocates
Faculty of Advocates
The Faculty of Advocates is an independent body of lawyers who have been admitted to practise as advocates before the courts of Scotland, especially the Court of Session and the High Court of Justiciary...

 which distinguishes between junior counsel and senior counsel
Senior Counsel
The title of Senior Counsel or State Counsel is given to a senior barrister or advocate in some countries, typically equivalent to the title "Queen's Counsel" used in Commonwealth Realms...

, the latter being designated Queen's Counsel
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...

. Advocates specialise in presenting cases before courts and tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....

s, with near-exclusive (see solicitor-advocates) rights of audience before the higher courts, 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.

Furthermore, it used to be the case that Advocates were completely immune from suit etc. while conducting court cases and pre-trial work, as they had to act 'fearlessly and independently'; the rehearing of actions was considered contrary to public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...

; and Advocates are required to accept clients, they cannot pick and choose. However, the seven-judge English ruling of Arthur J.S. Hall & Co. (a firm) v. Simons 2000 (House of Lords) declared that none of these reasons justified the immunity strongly enough to sustain it. This has been followed in Scotland in Wright v Paton Farrell (2006) obiter insofar as civil cases are concerned.

Solicitors, more numerous, are members of the Law Society of Scotland
Law Society of Scotland
The Law Society of Scotland is the professional governing body for Scottish solicitors.It promotes excellence among solicitors through representation, support and regulation of its members. It also promotes the interests of the public in relation to the profession...

 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 Solicitor Advocates.

A Solicitor also has the opportunity to become a notary public. These, unlike their continental equivalent
Civil law notary
Civil-law notaries, or Latin notaries, are lawyers of noncontentious private civil law who draft, take, and record legal instruments for private parties, provide legal advice and give attendance in person, and are vested as public officers with the authentication power of the State...

, are not members of a separate profession. Most Solicitors will be Notaries but Notaries must be Solicitors and cannot operate independently.

While Solicitors and Advocates are distinct branches of the Scottish legal profession, this position has been blurred since 1992. The Law Society of Scotland may, upon proof of sufficient knowledge, grant rights of audience before the higher courts to Solicitors, who then become known as Solicitor Advocates
Solicitor Advocate
Solicitor advocate is the title used by a solicitor who is qualified to represent clients as an advocate in the higher courts in England and Wales or in Scotland.-Origin:...

.

Branches of the law


The principal division in Scots law is between private law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...

 (laws governing the relationship between people) and public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...

 (laws governing the relationship between the State and the people). Private law is further categorised into laws on Persons, Obligations
Law of obligations
The law of obligations is one of the component private law elements of the civil system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict law...

, Property, Actions and Private International Law. The main subjects of public law are constitutional law, administrative law and criminal law and procedure.

Private law

  • Bankruptcy
  • Company / Partnership
  • Contract
    Scots contract law
    Scots contract law governs the rules of contract in Scotland.Contract is created by bilateral agreement and should be distinguished from unilateral promise, the latter being recognised as a distinct and enforceable species of obligation in Scots Law. The English requirement for consideration does...

  • Delict
  • Employment
  • Family
  • Inheritance
  • Promise
  • Property
    Scots property law
    Scots property law governs the rules of property in Scotland. A fundamental distinction in Scots law is between heritable and moveable property. Heritable property includes land and buildings, whereas moveable property includes title to property which actually physically moves, which would normally...

  • Trusts

Public law

  • Administrative
    Scots administrative law
    Scots administrative law governs the rules of administrative law in Scotland, the body of case law, statutes, secondary legislation and articles which provide the framework of procedures for judicial control over government agencies and private bodies....

  • Civil procedure
    Scots civil procedure
    Scots civil procedure governs the rules of civil procedure in Scotland. It deals with the jurisdiction of Scottish civil courts, namely the Court of Session and Sheriff Courts. Civil procedure is generally regulated by Acts of Sederunt which are ordinances passed by the Court of Session...

  • Constitutional
  • Criminal
    Scots criminal law
    Scots Criminal Law governs the rules of criminal law in Scotland. Scottish criminal law relies far more heavily on common law than in England and Wales...

  • Tax

See also

  • List of leading Scottish legal cases
  • Not proven
    Not proven
    Not proven is a verdict available to a court in Scotland.Under Scots law, a criminal trial may end in one of three verdicts: one of conviction and two of acquittal ....

  • Trial by jury in Scotland
    Trial by jury in Scotland
    In Scotland trial by jury is used in serious criminal cases and less commonly in civil cases. There are some similarities with the jury system in England and Wales but some important differences....