#16457 - Scottish Legal History - Scottish Legal System

1. Scottish Legal History

• European Context theme going back to Roman Law

Until 656

• Roman Law presided over their vast Roman Empire, and concepts of Roman Law influence much of modern civil law

• But Roman Law never got to the territory of Scotland

• At that time, Scotland was not a country, but a collection of tribes and small kingdoms

• Romans build a wall at the border between Scotland and England

• Roman Empire falls

• Christianity is spread in Europe

• Church used the law and court to uphold its beliefs

565

• Death of Justinian, Roman Emperor of the surviving Roman Empire in the east

• Justinian Institutes and Digest: law survived, reshaped and was being taught

565-1000

• Early dark/ middle ages

• Lack of strict legal authority after fall of Roman law

• Continuing development of the Church

• Rise of Feudalism- power building, land was distributed by people of power to those below them, in return for giving their superiors military force

1000-15000

• Beginning of the rise of states in Europe

• England was highly organised and governed because of the Norman Conquest headed by William the Conqueror

• The common law of England resulted

• The king took an increasing role in doing a better quality of justice

• The king in these courts provided remedies in particular situations, and the king’s law was superior

• Gives rise to the notion that English law is not about rights, but about providing a remedy for injustice

• Roman law was rediscovered

• Cannon law, law of the church, was also rediscovered

• Roman law and cannon law were taught at universities

• Church claims a wide jurisdiction claiming to keep people good, involved with marriage, wills, etc.

• Scotland had a similar imitation of the English system of remedies

1500-1700

• New secular structure of the legal system

• In Scotland, if someone came up with a new issue that hadn’t been remedied, they go to the King, who used his council and advisors in sessions to deal with these disputes

• Difference between Scotland and England, is that these sessions become a court in its own right (Court of Session), which was the highest court in Scotland

• In Scotland, having a central court lead to the growth of the legal profession

• A Faculty was formed by the advocates of the Session and the exam was in civil law

• Reformation reached Scotland, and the papal jurisdiction is overthrown

• Cannon law still prevailed in that there was a test seeing if cannon law was consistent with scripture, and if not it was not followed anymore

• In 1603, King James of Scotland became the heir to Elizabeth I in England

• This is the period when scots law begins to become articulate through 2 major writers: Thomas Craig’s Jus Feudale and Stair’s Institutions

1700-1914

• Anglo-Scottish Union, creating a single kingdom under a single crown with a single parliament and a single market

• Jacobite rebellion and Bonnie Prince Charlie for a single crown of Great Britain, but it failed and was the beginning of the abolition of feudalism in Scotland

• Industrial revolution, American and French revolution

• Democracy, enlightenment, secularisation

• Desire for law to become more clear and transparent

• Codified law in Europe (France, Belgium, Netherlands, Italy, Spain, Germany)

• Single market leads to trend of uniformity between English and Scottish regimes

• Sale of Goods Act in 1893, business people wanted it applied to Scotland as well. This was one of many attempts to codify mercantile law in commercial law

1914-2017

• Ongoing process of Anglicisation of Scottish law

• After world wars, Scottish legal nationalism arose

• Sex disqualification act 1919, suffragette movement for female suffrage, female lawyers, etc.

• Change in legal education in Scotland

History of Contract Law

Roman Law

• Romans did not have a law of contract, but rather a law of contracts

• The law of contracts in the Institutes of Gaius and Justinian

• Important Roman ideas:

• Agreement was defined as the consent of 2 or more persons to the same thing

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