The Scottish Legal System

Scotland has its own independent and in parts clearly different judicial system with own jurisdiction. The law of Scotland is not a pure Common Law system, but a mixed system. Historically, partly the Scottish law stood originally even more in the tradition and under the influence of the Roman-juridical stamped continental law, and only since the 19th century the influence of the law “South of the Border” has strongly asserted itself. The Scottish law shows many similarities to the Roman-Dutch Law in South Africa (Robinson, Fergus and Gordon, 2000). Today on account of the EU legislation many modern laws have, above all, in the area of the commercial law and the consumer protection validity in the whole United Kingdom of Great Britain and Northern Ireland. But especially in the fields of adult regulations, elections, property or commercial law clear differences still exist between the English and Scottish right.

Today many modern laws have validity in the whole United Kingdom, but also in classical fields of the civil law clear differences still exist between English and Scottish right. An often quoted example is the Scottish subject right [“property law”] which stands substantially closer to the continental draughts than the English one. Other examples are that the Scottish law recognizes in contrast to English contracts in favor of third and puts away with breach of agreement a complaint on contract fulfillment [“specific implement”], while in England regularly only damage substitute can be required. Acts of law in England are all written in English, whereas in Scotland there is a possibilities that acts of law can be written in any of the three languages which are spoken in Scotland [Scottish, Gàidhlig, or English] (McFadzean, 2010; Slapper and Kelly, 2009).

One big difference of the two countries in law is the age someone can get married. In Scotland it is possible to marry if both partners have reached the age of sixteen years [or fourteen with parental consent]. In England you have to reach the age of eighteen years, representing a difference of two years. A Marriage is a quasi-contractual relationship which involves two adults – a male and a female – agreeing to be married and to enter into legal consequences which follow. The Marriage [Scotland] Act 1977 sets down the requirements on parties to a marriage (McFadzean, 2010). They must give the district registrar notice of their intention to be married. Once the registrar is satisfied that the parties are eligible and have the capacity to marry, he will issue a schedule allowing the parties to proceed. If, for example, one or either of the parties is already married, is under the age of 16 or is subjected to any other legal incapacity, no schedule will be issued in Scotland. Of course, the fact that someone is lawfully measured an adult is 16 in Scotland but on the other hand 18 in England is the reason in the regulation for adult relationships. Due to the variances in explanations of marriage, there’s technically a much smaller amount ending the legalization of same-sex wedding in Scotland than there is in England (McFadzean, 2010).

Another important difference between the two countries concerns elections. Citizens of England vote for the prime minister of the entire United Kingdom. In votes in Scotland, they elect for the First Minister of Scotland (McFadzean, 2010). Although England doesn’t have a parliament dedicated to them specifically, whereas North Ireland, Wales and Scotland do, England is the only constituent nation of the UK who is able to vote on who the Prime Minister of the whole of the United Kingdom is (Slapper and Kelly, 2009).

Property law in Scotland is an outsized, multifaceted but significant area of law governing all ways of rights and requirements in relation to land and other types of properties. It is outsized because of the wide variety of diverse types of possessions which can be held. It is multifaceted because of the range of privileges and obligations which can ascend in these types of property. It is significant because our properties have enormous economic value and importance (Busby et al, 2010). Definitely, it is impossible to envision any form of economy without property. Not surprisingly, the values of Scots law have antique foundations. To a great extent, these are resulting from Roman law, with the addition of characteristics of feudal law [being of particular importance in land ownership]. The impact of feudal law has, nevertheless, been significantly highlighted by the Abolition of Feudal Tenure [Scotland] Act 2000 (Robinson, Fergus and Gordon, 2000).

Commercial law regulates how to set up a new business. It also controls the relationship with related directors, associates, workforces and suppliers. Since Scotland has its own Parliament, government, court of law and legal systems, it is significant for anyone operating a business in Scotland – in specific those based in England – to identify some of the vital differences between the systems. Because of a different court system in Scotland, dissimilar rules from England and Wales do apply. In Scotland regional courts are called Sheriff Courts and the Supreme Court is known as the Court of Session (Ashton, 2007). Different to England, there is no automatic responsibility to reveal documents and papers in Scotland and it is only required where it is disposed by the court. The costs of court are usually lower and more predictable in Scotland than in England too. English regulation affecting landowner and occupant relationships does not apply to commercial leases in Scotland. Forfeiture of a lease is a more effective method to eliminate a non-complying occupant in Scotland than in countries in the United Kingdom. Law courts in England and Wales will usually give the occupant “relief from forfeiture”, allowing them to stay in the locations for a longer time, which is not possible in Scotland (Slapper and Kelly, 2009). Different to England and Wales, local authorities of communities or cities and public sector organizations do not assume prosecutions in Scotland, where a local Procurator Fiscal might take to raise the action. Penalties are mostly high since the law courts implement a punitive approach in Scotland (Crossan and Wylie, 2010).

To explain why there are differences in the legal system between Scotland and England a minor gallop through history is necessary. Strange as it may seem for such a small group of islands, in legal terms, Scotland is a separate country to the rest of the British Isles. Up until 1707, Scotland was fully independent country with its own legal system and parliament. In 1707, the Act of Union was signed and Scotland became part of the British Isles but the separate Scots law was preserved (Robinson, Fergus and Gordon, 2000). Over time, elements of the Scottish legal system moved into line, in certain areas, with the English & Welsh legal system. Today, 300 years later, Scots law is still different in several key areas including licensing, personal law and, in particular, property law. The Scottish adjudication is based on the Civil Law which is derived from the legal systems of the Roman right, while in the other parts of Great Britain the Common Law uniformly counting to all persons counts which developed in England in contrast to law right from the case right and the adjudication with precedents. On account of these differences in the judiciary being the parliament remits often separate laws and legal regulations whose validity limits itself exclusively to Scotland. All law decrees must expressly point to her obligation for Scotland or imply unmistakably this to be legal.

It has now become clear that there are a huge number of differences in the Scottish and English law. The reasons are to be led back predominantly on the history of both lands. In my opinion, Scotland will maintain his differences in the law also in the future, not least on account of the wish of independence.