Civil law vs. common law
In civil law systems there are codes and statutes to cover all eventualities, and a judge simply has to apply the law to the case in hand, whereas in common law systems there are statutes. However, judicial rulings and precedents are the most important source of the law.
Civil law systems have all been influenced to some extent by Roman law, and it is estimated that they exist in approximately 150 countries around the world. Common law derives from English law, and is estimated to be the system in approximately 80 countries. Common law developed after the different regions of England began to unite following the Norman Conquest, by drawing on customs across the country and rulings by monarchs.
The development of Scottish law
Scotland operates a mixed system, combining elements of both approaches. Remember, prior to the Union of Crowns in 1603, Scotland was a completely separate country, which developed its own legal system. After the Union of Parliaments in 1707, English laws began to blend with Scottish laws.
The two countries became increasingly intertwined, until the Scotland Acts of 1998 and 2012, which devolved powers away from London.
Devolved matters include:
· agriculture, forestry, and fishing
· education and training
· health and social services
· law and order
· local government
· sports and the arts
· tourism and economic development
· many aspects of transport
Reserved matters include:
· benefits and social security
· consumer rights
· the Constitution
· data protection
· foreign policy
· nuclear energy, oil, coal, gas, and electricity
· trade and industry
In terms of the law, this means that the main areas of difference between Scotland, and England and Wales are:
· criminal law
· evidence law
· family law
· inheritance law
· property law
· trust law
The main areas of similarity are:
· commercial law
· consumer rights
· employment law
· health and safety regulations
Scottish law, then, is not completely alien, and much of the differences are in terminology, at least as far as the layman is concerned. In England there is the Director of Public Prosecutions, and the Crown Prosecution Service (CPS); the nearest equivalent in Scotland is the Crown Office, and the Procurator Fiscal Service.
Scottish criminal cases are referred to as either ‘solemn’, meaning that they are held before a judge and a jury, or they are ‘summary’, meaning that they are held only before a judge. Indeed, you may have heard the expression “summary judgement” which in England refers to a judgement given on a full case, or on discrete parts of a case, by a court, without a full trial.
Another difference in the Scottish legal system is the existence of Sheriffdoms, which act as regional criminal court jurisdictions. There are six: Glasgow and Strathkelvin; Grampian, Highlands, and Islands; Lothian and Borders; North Strathclyde; South Strathclyde, Dumfries, and Galloway; Tayside Central and Fife.
If you need legal advice, particularly if it to do with a case that is taking place in Scotland, the Free Legal Advice Centre may be able to help you.