Scotland: The Constitutional Protection of a Mixed Legal System

  • Chris Himsworth
Conference paper

When a lawyer reflects on the position of Scotland as a distinct part of the United Kingdom, he or she has two phenomena in mind. One is the devolved system of government which, since 1999, has given Scotland a separate Parliament and Executive and a higher degree of constitutional and political autonomy than the country1 had enjoyed since the Union with England and Wales in 1707. The other, however, has been a feature of much longer standing. Scotland has had a separate legal system. The United Kingdom has been a state with three legal systems: England and Wales; Northern Ireland; and Scotland. These are three distinct jurisdictions for the purpose of international private law (conflicts of laws) and, although with some important overlapping features, they have separate systems of courts, separate systems of legal professional organisation and separate systems of legal education and training. However, whilst England and Wales and Northern Ireland, though distinct from one another in these ways, share the shame common law tradition, Scotland has an additional and significant distinctiveness in its membership of that ‘family’ of legal systems often dubbed ‘mixed systems’ by virtue of their historic debt to the civilian tradition, though overlaid with the influence of the common law. In this respect, Scotland is seen as having family connections with Quebec, Louisiana, South Africa (and other Southern African states) and Sri Lanka. There are, however, degrees of ‘mixedness’ and it may well be that, as a result of sharing political institutions and an economy with England since 1707 as well as a shared legislature at Westminster and a shared ‘top court’ in the House of Lords, Scotland is to be seen as well towards the common law end of the spectrum. Much of the substantive law of Scotland and of the rest of the United Kingdom is very similar and this is true not only of those areas of the law which, in modern times, have been dominated by statute. Commercial law is, in most respects, comparable across all jurisdictions and this extends to much of the general law of contract and delict. On the other hand, there remain many distinctively Scottish features within the law of property and of family law and these are joined by some differences in approach to both legal sources and to legal reasoning. If nothing else, the separate system of courts with distinctive procedures, remedies and terminology ensure the enduring separate identity of the Scottish legal system.


Judicial Review Supreme Court Scottish Executive Constitutional Protection Criminal Appeal 
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Copyright information

© Springer-Verlag Berlin Heidelberg 2009

Authors and Affiliations

  • Chris Himsworth
    • 1
  1. 1.School of LawUniversity of EdinburghEdinburghUK

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