Scots law: Encyclopedia II - Scots law - Sources of law

Scots law - Sources of law

Scots law - Common law

Many Scots laws are simply part of the law of the land, for example murder and theft are not defined in statute as offences, but come under common law. This has sources in custom, in legal writings and in previous court decisions. Unlike in English law, the use of such precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent.

The principles of natural justice and fairness have always formed a source of Scots Law and are applied by the courts without distinction from the law. Thus Scots Law does not have the complex construct of "Equity" applicable in England.

Certain texts, which come mostly from the 17th century, 18th century and 19th century can be used as authority in the courts in the absence of statute or case law. Their authors include Craig, Jus Feudale (1655) for feudal law, Stair, The Institutions of the Law of Scotland (1681) for civil law and David Hume (nephew of the namesake philosopher) for criminal law. The most recent such authority is Gordon's "Criminal Law of Scotland - 3rd Edn" from the 1980s.

Scots law - Statute law

Laws can be set by both the Scottish and Westminster Parliaments, and also the European Union. Acts of the Parliaments can also provide for more detailed laws made by secondary legislation known as Statutory Instruments which are then passed through Parliament more quickly and simply than Acts.

Some statutes of the pre-1707 Scottish parliament are still in force, and are written in the Scots language. In 1999 a new devolved Scottish Parliament with legislative competence over any matter not reserved to the United Kingdom Parliament at Westminster was established. Winnie Ewing (then an SNP MSP) presided over the opening, and famously declared 'The Scottish Parliament, adjourned on the 25th day of March in the year 1707, is hereby reconvened'. The Westminster Parliament remains the "sovereign legislature" as defined by Constitutional lawyers, retaining legislative power in relation to Scotland, but the new Scottish Parliament at Holyrood makes full use of the powers given by the devolution settlement to set laws affecting the domestic affairs of Scotland.

The powers of the Scottish Parliament are set out in the Scotland Act 1998.

The Westminster Parliament serving the whole of the United Kingdom has set Statute law for Scotland since 1707, and continues to deal with reserved matters. Acts of the United Kingdom Parliament can apply to the whole of the UK including Scotland, to Scotland alone or not to Scotland at all. The Scotland Act 1998 does not affect the power of the Westminster Parliament to legislate as regards Scotland, but during its passage the Sewel Convention was established, which effectively requires the consent of the Scottish Parliament to Westminster legislation on devolved matters.

European Union Regulations and many parts of the Treaty of Rome are directly applicable as law. EU directives passed by the Council of Ministers require member states to legislate to implement them.

Scottish courts are required to interpret legislation in a way compatible with the European Convention on Human Rights. If the Scottish Parliament legislates contrary to the Convention the law can be struck down by the courts. Courts may make a declaration that an Act of the Westminster Parliament is incompatible with the Convention.

Adapted from the Wikipedia article "Sources of law", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki