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Introduction
The Scottish legal system is the remarkable creation of almost 1,000 years of Scottish history, comprising a rare mixture of civil and common law concepts. While the Treaty of Union 1707 established England and Scotland as one kingdom, with the same monarchy and succession, a single Parliament and equal trade and economic rights, the independence of the Scottish legal system (including that of the Court of Session) was protected. It is distinct from its English counterpart in a number of ways, and all the more so since the passing of the Scotland Act 1998, which introduced a degree of devolution to Scotland.
Background to the Scottish legal system
The legal system of Scotland is quite separate from the rest of the United Kingdom, and it has developed as rather a hybrid system, comprising elements of civil and common law. Its separate existence was confirmed in the Treaty of Union of 1707, and extends to the courts, legal profession and to the law itself. The main influences on Scots law came from the Continent, particularly France and the Netherlands, and have their roots in Roman law. These influences helped to establish an "institutional" tradition, with the major early legal texts modelled on the Institutes of Justinian, e.g. Lord Bankton's An Institute of the Laws of Scotland, Erskine's Institutes and Bell's Principles, and Dictionary. These sources are still accorded special status.
There is a good summary of the development of Scots law from medieval times in A Short Commentary on the Laws of Scotland by T.B. Smith, W Green & Son, 1962.
The increase in legislation in the last 50 years or so has brought an increasing proportion of law that is common to both England and Scotland, as well as the growing impact of EU law. Devolution has slowed the influence of English law in some areas, but still there is a move towards rationalising major areas of legislation, e.g. the law relating to companies. The main areas where Scots law differs are private and criminal law.
The formal sources of Scots civil law which give authority to a legal rule fall under five headings: legislation, authoritative writings, judicial precedent, custom and equity. The authority attached to...