What is Scots Law?

Scottish law is best defined as a mixed legal system because it incorporates both civil law, influenced by Roman law, and common law. Scotland has a separate legal system from the union, providing the legislature, courts, and administration authority over law and policy decisions. Here, we explain how the various components of the Scottish system work.

Sources of law in Scotland

The Scottish laws are shaped by a solid foundation of legally enforceable principles derived from three primary sources of law. Legislation, case law, and institutional writers—those who initially incorporated Scots law concepts into legal texts—are the primary sources of law.

Despite being acknowledged by Scots law, the fourth source of law—customs—is not as frequently mentioned as the first three:

Legislation (Statute Law)

This law was passed by the Parliament of the United Kingdom or Scotland. These are referred to as “reserved powers” or “excepted powers” when they are used by the UK Parliament to implement laws. Usually, Westminster makes decisions on these external issues that affect the union. For instance, foreign relations, immigration, and defence.

“Devolved powers” are laws that are passed by the Scottish parliament and often only have an impact on a single jurisdiction. Police, justice, and education are a few examples.

 Legal precedent (Case law)

Through the application of judicial decision-making from previous instances in higher courts, this source of law generates new legal rulings that lower courts must abide by. The common law system is founded on these rulings.

Legal precedent is usually needed when there is disagreement on the meaning of the law or its absence. Precedent serves to both establish legal certainty and enable common law’s organic development to keep up with emerging societal issues in individual cases, reflecting the mixed legal system of Scotland.

To make a decision, the judiciary has to translate the law, look for the underlying area that is being applied, and use precedent from instances that are similar.

When applied, lesser and equivalent standing courts are usually bound by the rulings of courts with the same standing or higher standing. Both their own and lower courts’ legal precedents may be overruled by superior courts, especially in matters concerning the High Court of Justiciary.

Institutional Writers

According to this theory, certain legal scholars’ works from the 17th and 19th centuries are considered authoritative and legally binding within the context of the Law of Scotland. Through these authors’ works, one can study many of the fundamental ideas of Scot’s Law.

Customary Law

These are unwritten laws derived from long-standing traditions, especially in local customs and property law. Nowadays, customary law has lost some of its significance.

Scottish Legal Institutions

Government

In Scotland, the responsibility of draughting and adopting laws by the Scottish Parliament falls in the hands of the Government of Scotland, which is led by the First Minister. Located in Edinburgh, the capital city of Scotland, the primary function of the Government is to exert executive power over the legal system utilised by the Scottish government.

Legislature

The Scottish Parliament is made up of 129 elected members of Scottish Parliament (MSPs). It is the responsibility of the legislature within the legal system to propose, enact and scrutinise legislation and policies of the Scottish Government. This can occur through parliamentary debates, questions, and several categorised committees.

Being a separate parliament from Westminster, it is only interested in devolved issues that pertain to Scotland. Economic growth, education and training, fire services, health and social services, and consumer advocacy and guidance are a few examples of devolved matters.

The court system

Both criminal and civil law proceedings are used by Scotland’s judicial system.

Court Organisation

Criminal Court System

Scotland’s court system has four tiers, just like England’s. Criminal conflicts between individuals and the government are heard by the criminal court.

The most minor summary offenses, like speeding, are heard by the Justice of the Peace Court. The Sheriff Court sits above it and hears both serious summary cases and more solemn ones. The Sheriff Court Appeal will decide the case’s outcome in the event of an appeal.

The High Court of Justiciary, which has the authority to impose the most severe punishments in Scotland, including life in prison, hears the most serious cases within the legal profession.

Civil Court System

The civil courts in Scotland have the responsibility of settling disputes between private parties. This could be between two or more people, or between people and an organisation.

Similar to the criminal courts in England and Scotland, civil law proceedings follow a hierarchy. The sheriff court will hear cases in the first instance. This is then brought before the Sheriff Appeal Court if there is an appeal. The highest court in Edinburgh, the Court of Session, handles more complicated and serious civil cases.