Talk:Scots law

Brexit Update?
The entry for this topics states currently states that "Legislation affecting Scotland may be passed by the Scottish Parliament, the United Kingdom Parliament, and the European Union." Is this still true following January 31, 2020? — Preceding unsigned comment added by 38.32.69.242 (talk) 21:09, 28 February 2020 (UTC)


 * This is still needing updated to ensure that it is correct post-Brexit. 175.137.153.1 (talk) 00:15, 29 August 2023 (UTC)
 * WP:BOLD 2607:FEA8:585D:5900:758:83D7:4C46:9986 (talk) 23:04, 1 September 2023 (UTC)

Can we redraft the introduction
I wonder if some Users who are experts on this topic could please consider tightening up the introduction. It is of a reasonable quality, but I think a good rethink could turn it into a truly excellent introduction to the topic.

I am particularly thinking about the last paragraph, which looks like it evolved (and it probably did) out of additions higgeldy piggeldy (sp.?) by various contributors. It also lacks what we strive for in terms of a worldwide view (bit too GB comparative, rather than globe comparative). Here is that last para of the intro, at present:
 * The difference of basis between Scots and English law does not have much obvious effect on day to day life, but while some differences are very minor such as arbiters (in Scotland) being called arbitrators in England, significant variation shows in some circumstances, an example being house buying where Scots practice makes the English problem of gazumping a rarity in Scotland. Another example would be the ability for Scottish judges and juries to return a verdict of 'not proven' in criminal cases. Lawburrows, a summary civil action before a Sheriff to prevent a threat of violence, is another remarkable example. Scottish juries are composed of 15 members.

Much obliged if anyone can expend their intellectual juices. (Keep most of the existing links though: some are very good indeed).--Mais oui! 13:23, 23 February 2006 (UTC)

I'm sorry but the basis Scots law and English law is very different and do have very different consequences. I don't know what the point of the above paragraph is but it isn't true. Balfron 19:35, 9 March 2007 (UTC)

The above mentioned paragraph is now: Although there are many substantial differences between Scots law, English law and Northern Ireland law, much of the law is also similar, for example, Commercial law is similar throughout all jurisdictions in the United Kingdom, as is Employment Law. Different terminology is often used for the same concepts, for example, arbiters are called arbitrators in England. Another example would be the third verdict available to judges and juries (which consist of 15 members) in criminal cases: 'not proven'. The age of legal capacity under Scots law is 16, whereas under English law it is 18.[3][4]

The paragraph, although better than the version above, is still confused. The flow from different terminology to the "third verdict" to the age of legal capacity is disjointed... they have very little to do with eachother. Connolly15 (talk) 01:35, 31 March 2009 (UTC)

I've edited the paragraph so it is more fair and outlines the areas of the law that are different in the two jurisdictions and the areas of the law that are similar. I also cite practical differences that the average person may be interested to know about the two systems of law, as well as similarities that are of interest. Connolly15 (talk) 02:08, 31 March 2009 (UTC)

The beginning of the article contains sweeping generalisations about Scots law's origins, that aren't really justified. For example, Scots law never took Roman law as an official source of law- it was only ever used as a guiding (but not binding) source of principle where there was no existing or satisfactory rule. Its real sources are in fact English common law (which makes the bulk of Regiam Maiestatem) Canon law, Feudal law, early Scots statutes, and a small amount of Roman law. Roman law's greatest early influence was in procedure, i.e., Romano-canonical procedure (cognitio in Roman law) was adopted very early on.

Scots law of property is completely different from the English, both in terminology, principles and operation, and is almost wholly based on Roman/Civilian principles (Gretton & Steven, Property, Trusts and Succession p1.4) 84.93.9.160 (talk) —Preceding undated comment added 14:01, 30 October 2010 (UTC).

Dangerous offender
Does "Dangerous offender" not have a special meaning in the Scottish criminal justice system? There is no mention of Scots law in the Wikipedia article, so I googled it. There seems to be something about a Dangerous Offender Order and Potentially Dangerous Offender; and a ref to "dangerous offender legislation". Does anyone have the requisite knowledge? --Mais oui! 08:17, 24 September 2006 (UTC)

Solatium
An article on solatium would be valued. Thanks. Cutler 20:01, 19 August 2007 (UTC)

Slavery in Scotland
I removed a link to a site that discusses the history of slavery in Scotland. There is no mention of slavery in the article. Should this be added? I'm referring to the Knight vs Wedderburn case.

The link I removed is: http://www.ltscotland.org.uk/abolition/

Any thoughts? mdkarazim (talk) 15:31, 20 March 2008 (UTC)


 * Interesting idea, would make an excellent part of legal personality.--129.215.149.99 (talk) 16:56, 10 May 2008 (UTC)

Scottish Parliament
I have just now removed a reference to Ewing's statement being legally inaccurate. I do not think it follows that because the old Scots Parliament had absolute powers, that one cannot say that in one sense it has been "reconvened". I would not say that myself, but I can see why Ewing put it like that. I think it should be understood she was using a degree of rhetoric or romantacism suitable for the occassion. There might be an argument that Ewing's statement, being a bit of a gloss, should be removed. But I don't think it is right to stigmitise it as "inaccurate".

--A.Bakunin (talk) 17:54, 14 April 2008 (UTC)

The old Scots parliament did not enjoy absolute powers (unlike Westminster); the parliamentary doctrines North and South of the border pre-Union were rather different from each other. The new Parliament is, however, rather limited in its powers. "The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law" -- Lord President Cooper, McCormick v the Lord Advocate 1953 SC 396. 84.93.74.78 (talk) 18:58, 20 October 2010 (UTC)

Surely this sort of thing belongs in the article dedicated to the Scottish Parliament? Connolly15 (talk) 01:22, 31 March 2009 (UTC)

Generally
This article's very low standard reflects two things. Firstly an author cannot do any justice to a subject of this size in an article as small as that. This should be a cover page linking to articles of all the different branches of Scots law. Also the way this has been written is very much structured around what the creator of the page wants to say. I think this talk page should be used in order to properly structure this article and give it the respectablility it deserves. S0673253 (talk) 15:35, 25 October 2008 (UTC)

Why is Scots law based upon Roman law?
A discussion on the origins of the Scottish legal system is taking place at WikiProject Scotland. Editors of this article may be able to throw light on the topic. To contribute to the discussion, please click here. References, per WP:VERIFY, would be especially welcome! Thank you in advance. --Mais oui! (talk) 08:12, 9 February 2009 (UTC)

Equity
If you'll forgive an Englishman from posting here at all, it strikes me that to say that "Equity does not exist in Scots law" is something of an oversimplification. True, unlike in England there isn't a jurisdictional split, with one set of technical rules of Scots law labelled "equity" and another labelled "common law". But surely that isn't to say that the courts do not exercise any kind of equitable jurisdiction: what about the nobile officium? And Lord Kames thought it worth his while to write his Principles of Equity, even if he concluded that "In Scotland... equity and common law are united in one court" [3rd edn (1778)at 26].

Why does the "Equity does not exist" phrase link to a French book on Google books Poland? —Preceding unsigned comment added by 82.41.49.105 (talk) 19:40, 13 March 2011 (UTC)

Maybe this merely illustrates the problem of tackling an enormously-complex subject by means of an article in Wikipedia! Kranf (talk) 09:53, 10 October 2009 (UTC)

Recast of Article
This article has a number of issues but I think that the main problems are that it lacks any real referencing and that it goes into too much detail for such a broad subject. I would suggest that a recast of the article is in order and that the new article should contain links to sub-articles that can go into more detail. For example, the current article goes into great detail about the history of the law of Scotland (without any sources though). Much of this should be moved to a sub-article on the topic.

To this end, I have started working on a recast here and I would appreciate any help, suggestions or comments. (Connolly15 (talk) 10:19, 24 November 2011 (UTC))


 * I thoroughly welcome your initiative. This article, so key to an understanding of Scotland, has been an utter embarassment ever since I joined Wikipedia. I have tried, several times, to drum up interest in tackling it, but have been met with walls of silence. I hope that the little I managed to rectify/reference myself has been of some good.
 * This is a case for a WP:BOLD editor. If you properly reference your work, you can hardly make a worse effort than the stuff that has festered here for many years.
 * Sub-articles are to be strongly recommended. Cheers. --Mais oui! (talk) 11:24, 24 November 2011 (UTC)


 * Having had a quick look at your draft, can I request that you take it a bit easier than my initial WP:BOLD response stated. Especially as regards the Intro.
 * I suggest that you start by working on some of the sub-sections / splitting off sub-articles, so that other editors can see what you are doing. I strongly recommend that you do not simply copy and paste an entirely new article into main article space in a oner. --Mais oui! (talk) 11:36, 24 November 2011 (UTC)
 * Ok, I will try to work in some of what I've done into the existing article, but part of the problem is the current article's length and overuse of trivia (Connolly15 (talk) 12:20, 24 November 2011 (UTC))

I have made numerous changes to the article which I have detailed and tried to justify below. Please be aware that a lot of the change are not adding or removing anything from the article, but are structural. I plan to do more, but I thought best to take a pause at this point and wait for comments / edits. (Connolly15 (talk) 14:33, 24 November 2011 (UTC))

Introduction

 * Here I have reflected the English law article and created a section "Scotland as a distinct jurisdiction" and moved what is said from the introduction.
 * I think the introduction still should be reduced as it contains too much information on the history. (Connolly15 (talk) 14:51, 24 November 2011 (UTC))

Comments? (Connolly15 (talk) 14:39, 24 November 2011 (UTC))


 * The introduction is about the law in Scotland and not Scots law. What is needed is a wiki-compliant lede. It needs to (1) define the topic and (2) summarize the article.
 * "Scots law is a unique legal system; it can trace its legal roots to various sources of law." does not define the topic: each legal system is unique; most modern legal systems can trace their roots to various sources - which sources have influenced Scots law? Better would be something like:
 * "Scots law is the legal system which operates in Scotland; it is a mixed system, with elements of Roman–Dutch law as well as common law characteristics. With English law and the law of Northern Ireland it forms the legal system of the United Kingdom; it shares with the two other systems some sources of law and legal institutions but it also has its own sources and institutions."
 * Then should follow a summary of the article.
 * Otherthinker (talk) 12:18, 25 November 2011 (UTC)


 * Thanks for the helpful comments. I agree with you completely.  I had drated this as a possible replacement (I avoid referencing Roman law specifically only because the extent of its influence is controversial):

"Scots law is a combination of statute, common law, academic writings and custom based on a historically mixed grouping of sources, which makes it a hybrid or mixed legal system.[1][2]
 * I still think it would be useful to say that Scots law is not some abstract concept but an actually existing and dynamic legal system that operates in Scotland and is the equal partner with two other legal systems which operate in the United Kingdom.Otherthinker (talk) 05:05, 26 November 2011 (UTC)

The Parliament of the United Kingdom has authority to create, amend or revoke the law of Scotland, with the Scottish Parliament, since 1999, also having devolved powers to legislate within its legislative competence.[3] A large body of the law is also determined by judicial precedent with the most authoritative sources being the Court of Session and Supreme Court of the United Kingdom for civil law[4] and the High Court of Justiciary for criminal law.[5] Appeals to the European Court of Human Rights are possible where a legal dispute involves the infringement of the European Convention on Human Rights[6] or the Court of Justice of the European Union where European law is at issue.[7] The publications of the institutional writers, who were a group of distinguished jurists, are recognised as a legitimate source of law in Scotland as well.[8] Customary law is the final recognised source; however, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.[9]

Scots law attempts to balance the need for conformity in the United Kingdom in certain legal fields, often for practical commercial reasons, while recognising the traditional uniqueness of the legal system in other areas. For example, laws concerning consumer rights, data protection, employment and immigration are reserved matters under the Scotland Act 1998, meaning that the Parliament of the United Kingdom has sole jurisdiction in these areas.[3] The law of Scotland, however, is unique in the United Kingdom in a number of other fields, especially property and succession laws[10] and court actions, where the involvement of a Scottish solicitor is normally required.[11]"

Thoughts? (Connolly15 (talk) 14:07, 25 November 2011 (UTC))
 * These last two paragraphs do not summarise the keypoints of the article which follows. They are an interesting introduction to an essay on Scots law, but that is not what is being constructed here: a lede.Otherthinker (talk) 05:05, 26 November 2011 (UTC)


 * I am now becoming very concerned about the total rewrite of this article. The prose style tends to that of an essay, not of an entry in an encyclopaedia. Furthermore, there are strong signs of a breach of WP:SYNTH. The personality and personal opinions/attitudes of the writer must be supressed, otherwise Wikipedia becomes a platform and not a reference work. --Mais oui! (talk) 06:50, 26 November 2011 (UTC)


 * I have not made any changes to the lede as it stands, other than add a reference and move some of the existing text to a new section just below it so that it is a bit shorter. I posted this here to get some feedback and it is clear from the response that it needs work.  Can you point to where your concerns are for WP:SYNTH please?  I don't believe this is the case.  Also, I'm happy to remove any personal opinions that you think I have worked into the article, but I don't think this is the case either - all the "opinions" are those of the Stair Memorial Encyclopaedia which is a very authoritative text on the subject.  As for style of writing, I'm not sure that it is an essay format as there is no thesis or argument behind what is written, but again, if you want to raise examples or make changes please feel free. (Connolly15 (talk) 12:17, 26 November 2011 (UTC))


 * Connolly15 has taken on the Herculean task of improving the article. The redraft is well supported by independent, third party, verifiable sources. Connolly15, in true wikipedian style, is inviting comment with a view to seeking consensus. I have some textual critisims but no personal criticism.Otherthinker (talk) 22:56, 26 November 2011 (UTC)

Legal System

 * This section is very broad in scope and it's not clear to me what it is trying to accomplish. It seems to mix the history of the legal system, the government, lawyers and courts.  These are all worthy topics but need to be better structured.  I will split "history and development" into its own section and rename the general title "Legal System" as "Legal institutions" (i.e. Executive, Legislative, Judiciary, Legal Profession). (Connolly15 (talk) 13:40, 24 November 2011 (UTC))
 * I then moved the renamed "Legal Institutions" section below sources of law, since the Legal Institutions of the legal system derive their authority from the legal sources. It makes sense that legal sources should be spelled out before the institutions which created them. (Connolly15 (talk) 13:47, 24 November 2011 (UTC))

Executive
 * I introduced a section on the Scottish Government as the executive of the Scottish legal system. I moved the existing section on the Minister of Justice and made it a sub-section of this section. (Connolly15 (talk) 14:00, 24 November 2011 (UTC))

Legislature
 * I have just moved the bit about the Scottish Parliament under a Legislature section. Probably should add stuff about Westminster as it is an important legal institution created under the Act of Union and so is also "Scottish". (Connolly15 (talk) 14:00, 24 November 2011 (UTC))

Judiciary
 * I renamed this "Judiciary" from "Courts". This section will need to be rewritten as it is just a list of the courts by authority.  For now I added a link to the main article on the Scottish court system. (Connolly15 (talk) 14:00, 24 November 2011 (UTC))

Legal profession
 * I haven't changed this section at all, just moved it below Judiciary. It currently has no sources. (Connolly15 (talk) 14:00, 24 November 2011 (UTC))

Comments?

Sources of Law
Legislation


 * I have removed the section on the Human Rights Act 1998 - this is clearly not a source of law, but just an example of legislation and does not need its own sub-section. It also already has an extensive article on Wikipedia dedicated to it. (Connolly15 (talk) 13:14, 24 November 2011 (UTC))
 * I removed the numerous sub-headings. In my opinion it creates clutter and paragraphs would accomplish the intended division.  (Connolly15 (talk) 13:15, 24 November 2011 (UTC))
 * I rewrote the section on legislation. It now contains good references and the order of the sources is more clear.  There is also more information on how the sources are created and how they are legally challenged. (Connolly15 (talk) 13:24, 24 November 2011 (UTC))

Common Law
 * I have redrafted this section, but have still included all the points that were originally there. I have now included sources and also mentioned some of the background to the disputes over authority. (Connolly15 (talk) 13:27, 24 November 2011 (UTC))

Institutional Writers
 * I have redrafted this section. The only element of the original that I have excluded is the suggestion that "some" of the institutional writers were reflecting the methods used by the Emperor Justinian.  This statement was unsourced and is dubious in my opinion as many of these works are not attempting to codify at all. (Connolly15 (talk) 13:30, 24 November 2011 (UTC))
 * I renamed this section "Academic Writings" so that it matches with the general titles of the other categories. The other section headings are general (e.g. "Legislation" instead of "Acts of Parliament") (Connolly15 (talk) 14:03, 24 November 2011 (UTC))

Custom
 * I have expanded this section a little and added more sources. I haven't removed anything that was not already previously said (Connolly15 (talk) 13:33, 24 November 2011 (UTC))

Comments?

Branches of Scots law

 * Here I have only moved around some of the sub-headings so that they are correctly located under either Private or Public law and I have added links to Main Articles. (Connolly15 (talk) 14:35, 24 November 2011 (UTC))
 * For the Criminal law section, I removed most of what was written as it is already in the main article on criminal law.(Connolly15 (talk) 14:35, 24 November 2011 (UTC))
 * For the IP section - I have deleted this completely as it is already covered in the main article on property law. — Preceding unsigned comment added by Connolly15 (talk • contribs) 14:44, 24 November 2011 (UTC)

Comments?

History of Scots law
I've created an article History of Scots law and would appreciate a review/critique/feedback if possible. My thought was to replace the current text (which is 99% unsourced) of this article with a summary from the new article incorporating its sources. The weakness of the new History of Scots law article is that it relies on two sources (the main one is available for viewing on Google Books and is linked, from very reputable authors, the other source is Stair). If anyone can add further information or sources it would be great! I don't have any at the moment, but will have more access to sources in a couple of months. (Connolly15 (talk) 22:32, 30 November 2011 (UTC))

Assessment comment
Substituted at 05:36, 30 April 2016 (UTC)

Not Federal
The UK is not a Federal system. (Coachtripfan (talk) 14:13, 30 July 2016 (UTC))

Wrong Coat of Arms
Why is the infobox UK legislation displaying the wrong coat of arms for all Scottish Legislation using the info box from the Independence referendum Act 2013 as an example when it doesn't even appear on the text of the legislation?



This is the correct coat of arms so please can this be corrected. (2A02:C7F:5621:2A00:6CAB:D16E:4BE3:E085 (talk) 21:12, 29 August 2017 (UTC))
 * Scottish Parliament Act.JPG

This is proof of this so why is the wrong coat of arms being displayed on the legislation infobox for the Scottish Parliament? (MOTORAL1987 (talk) 10:14, 30 August 2017 (UTC))

Just bringing this discussion to this article. (2A02:C7F:5621:2A00:A857:CE18:88E:793B (talk) 10:17, 30 August 2017 (UTC))

Legal systems of the UK
In the third sentence: "Together with English law and Northern Irish law, it is one of the four legal systems of the United Kingdom"

Clearly, listing three legal systems then saying there's four is contradictory. The status of Welsh law as a separate legal system is somewhat unclear, but either the sentence should include Welsh law, or it should be changed to read "one of the three legal systems". 84.71.179.180 (talk) 13:27, 31 December 2021 (UTC)