Scottish legal history
The Scottish legal history includes many associated with the English legal history development of the law of Scotland.
Feudal law (1018 to 13th century)
The first phase of Scottish law in the narrower sense begins with the consolidation of the borders of Scotland since the Battle of Carham in 1018. The feudal system adopted from England dates back to this time and is the basis of Scottish property law to the present day . David I divided Scotland into sheriffdoms , which also functioned as judicial districts: in each district a sheriff exercised civil and criminal jurisdiction on behalf of the king and heard appeals against decisions of the baron courts . The ecclesiastical courts were an important source of the influence of foreign legal systems , as they allowed appeal to Rome. The canon law was particularly in family law is of great importance. Its influence can still be determined even in current law. As a result, Scottish law of the time was characterized by the replacement of common law with English, Canon and Roman law.
14th to 16th century
For a long time the 14th to 16th centuries were also referred to as the dark age of Scottish legal history; however, recent research tends to take a more nuanced view. The influence of English law ended with the first Scottish War of Independence . It was replaced by French law , as France was allied with Scotland in the auld alliance . French law worked through two channels: on the one hand, through the direct takeover of French legal institutions, and on the other, through the study visits of young Scots to French universities. It is due to this epoch that Scotland is not the common law - jurisdiction is attributed. Since the 15th century, the influence of Scottish parliamentary laws also grew , as demonstrated by the introduction of the Poor's Roll 1424 and the Leases Act 1449 . The influence of canon law was retained primarily in family law and in the law of protection of honor.
Reception of Roman law
The phase from the founding of the Court of Session in 1532 to the Napoleonic Wars is characterized by the development of an independent Scottish law based on Roman legal foundations. The so-called practicks - notes on court decisions that were originally only intended for the private use of the judges of the Court of Session - played an important role in this . They soon began to be collected and named after their publisher (e.g. Balfour's Practicks ) to be published. They are considered to be the forerunners of the law reports . The continental European reception of Roman law found its way to Scotland through the Scottish legal training in Paris, Orléans, Leiden and Utrecht.
A second source for the development of an independent Scottish law were the institutional writings, which were named after the textbooks called institutiones . These are a few textbooks with a systematic processing of customary, feudal and Roman law, the authority of which, however, was widely recognized for centuries. The most important are the Institutions of Scotland (1681) by Viscount Stair , the Ius Feudale (1603) by Thomas Craig , An Institute of the Laws of Scotland (1773) by Andrew Macdowall Bankton and the Commentaries on the Law of Scotland (1797) by David Hume .
In 1617 the General Register of Sasines was created , in which all legal acts relating to real estate have been entered up to the present day. In 1672 the High Court of Justiciary was established, which is still Scotland's highest criminal court to this day. The independence of the legal system was retained even after the Act of Union 1707 , which stipulated in Art. 19, the Court of Session and the High Court of Justiciary "do after the Union and notwithstanding thereof, remain in all time coming within Scotland."
Roman law continuously lost its influence until its low from 1800: The French Revolution and the Napoleonic Wars made France a less attractive place to study for Scottish students. The codifications in France and the Netherlands diverted the stream of students to Germany because the study of a foreign law appeared to be of little help to Scots. In addition, Scottish law had now reached a certain degree of maturity and independence through the jurisdiction of its higher courts, so that recourse to Roman law was often no longer necessary. A third reason was the gradual approximation of English law: since the decision in Greenshields v Magistrates of Edinburgh (1710/11) , the Court of Sessions has been able to appeal to the English House of Lords . The adoption of the doctrine of stare decisis led to a more intensive preoccupation with case law than with the principle-based Roman law.
Modern
Since 1800 the influence of the legislature of the Parliament and the jurisprudence of the House of Lords and the influence of English law grew steadily. Both were criticized: Although there are a certain number of parliamentary laws that are limited to England or Scotland, numerous legislative proposals neglect Scottish peculiarities due to lack of time and are therefore extended to the entire United Kingdom. The House of Lords, which at times only consisted of English judges, also met with fierce criticism: Many decisions were made out of a mere ignorance of Scottish law or the equation of legal institutions of the same name but not with the same content.
In the 20th century, the number of Acts of Parliament multiplied enormously and brought completely new areas of law such as labor (labor law), commercial law (commercial law) and administrative law (administrative law) for the making. Scottish law also received new impetus from the influence of European law and the constitution of the Scottish Parliament .
literature
- Michael C. Meston, W. David H. Sellar , Lord Cooper : The Scottish Legal Tradition. New enlarged edition. The Saltire Society and The Stair Society, Edinburgh 1991, ISBN 0-85411-045-3 .
- Kenneth Reid, Reinhard Zimmermann (Eds.): A History of Private Law in Scotland. Volume 2: Obligations. Oxford University Press, Oxford et al. 2000, ISBN 0-19-829928-1 .