Advertisement

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.

Keywords

Judicial Review Supreme Court Scottish Executive Constitutional Protection Criminal Appeal 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Preview

Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.

References

  1. Chalmers J (2004) Scottish appeals and the proposed supreme court. Edin Law Rew 8:4CrossRefGoogle Scholar
  2. Clive E (1976) Distinctiveness for its own sake. In: Grant JP (ed) Independence and DevolutionGoogle Scholar
  3. Dewar Gibb A (1950) Law from over the border. W. Green & Son, EdinburghGoogle Scholar
  4. Himsworth CMG (1997) Things fall apart: the harmonisation of community judicial procedural protection revisited. Eur Law Rew 22:291Google Scholar
  5. Himsworth CMG (2001) Rights versus devolution. In: Campbell T et al (eds) Sceptical essays on human rights. Oxford University Press, OxfordGoogle Scholar
  6. Himsworth CMG (2002a) Planning rights convergence. Edin Law Rew 6:253Google Scholar
  7. Himsworth JR CMG (2002b) Devolution and the mixed legal system of Scotland. J Rew 115Google Scholar
  8. Himsworth CMG, O'Neill CM (2003) Scotland's constitution: law and practice. pp 181–193Google Scholar
  9. Himsworth CMS (2004) Jurisdictional divergences over the reasonable time guarantee in criminal trials. Edin Law Rew 8:255CrossRefGoogle Scholar
  10. Himsworth CMG, Paterson A (2004) A supreme court for the United Kingdom: views from the Northern Kingdom. LS 24:99Google Scholar
  11. Himsworth CMG (2005) Judicial review in Scotland, 3rd edn. In: Supperstone M et al (eds) Judicial ReviewGoogle Scholar
  12. Himsworth CMG (2006) Remedies against the crown in the house of lords. Edin Law Rew 10:282CrossRefGoogle Scholar
  13. Himsworth CMG (2007) Devolution and its jurisdictional asymmetries. Mod Law Rew 70:31CrossRefGoogle Scholar
  14. Johnston D (2006) JA Pye (Oxford) Ltd v United Kingdom: deprivation of property rights and prescription. Edin Law Rew 10:277CrossRefGoogle Scholar
  15. Jones TH (2005) Towards a good and complete criminal code for Scotland. Mod Law Rew 68:448CrossRefGoogle Scholar
  16. MacQueen HL (2003) Scotland and a supreme court for the UK? SLT (News) 279Google Scholar
  17. MacQueen H, Brodie D (2002) Private rights, private law and the private domain. In Boyle A et al (eds) Human rights and Scots lawGoogle Scholar
  18. Reid E, Carey Miller DL (eds) (2005) A mixed legal system in transitionGoogle Scholar
  19. Reid K, Zimmermann R (eds) (2000) A history of private law in Scotland. Oxford University Press, OxfordGoogle Scholar
  20. Smith TB (1962) A short commentary on the law of Scotland. W. Green & Son, Edinburgh, Chap. 1Google Scholar
  21. Smith (1962) English influences on the law of Scotland. In: Studies critical and comparativeGoogle Scholar
  22. Steven AM (2005) Property law and human rights. J Rew 293Google Scholar
  23. Whitty N (2003) From rules to discretion. Edin Law Rew 7:281Google Scholar
  24. Zimmermann R (ed) (1996) Southern cross. Clarendon, OxfordGoogle Scholar

Copyright information

© Springer-Verlag Berlin Heidelberg 2009

Authors and Affiliations

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

Personalised recommendations