> the judicial system itself is based on Roman law rather than Common Law or the Napoleonic Continental System
Says on Wikipedia[0] that it's a hybrid of Roman and English law. Why did they even use Roman law at all? The Roman Empire had been gone for several centuries, and England was in control after the 1707 Acts of Union, so it's surprising they didn't reform the system to follow English procedures.
It's not quite correct to say that Scots law is entirely independent though. It's true that The High Court of Justiciary is the highest court of appeal for Scottish criminal cases, but the Supreme Court of the UK (formerly the House of Lords) is the highest court of appeal for civil cases in the UK and decisions in Scotland can be appealed there. However, the rules and procedures of Scots law are different and so judgements in England which are used as precedents in Scotland have to be reinterpreted in the light of Scots law and visa versa. I know for a fact that there is a standard contract clause which currently has a different interpretation in England versus Scotland because neither of the interpretations have yet been appealed in the Supreme Court. As you can imagine this can cause endless amounts of expensive legal haggling. Scots and English law also use very different legal terminology and procedures for many everyday processes. Interestingly, this is because Scots law is a mixture of civil law derived from Roman law (like most of Europe) and common law (like England, US, Australia, Canada etc).
Also, I think English law can in theory draw on precedents set by courts in other commonwealth countries; I vaguely remember seeing Australian case-law cited when I was studying law related to professional negligence, but I can't find a reference to it now.
It's a very typically British setup which is the culmination of 100's of years of compromises here and there which viewed together now are totally impenetrable to the layman. The whole setup is utterly confusing and should be thrown away and rewritten from scratch preferably with the same law applying over the whole of the EU if you ask me, but then I'm not a lawyer.
This is interesting new information to me, but I looked it up and Scotland indeed has what many consider a mixed system, quite unique since the U.K. is a unitary state.
I was already aware that Scotland uniquely for the U.K. has the unus testis, nullus testis principle which is ubiquitous in civil law systems, but I had no idea of how far reaching it was.
Nitpick, but there's no such thing. You mean the English legal system. Scotland's legal system is completely different (http://en.wikipedia.org/wiki/Scots_law), as is that of Northern Ireland.
Which has a very different legal system from England and Wales (or anywhere else, for that matter). Primary legislation from 1707 through 2000 was enacted in Parliament in London, but the judicial system itself is based on Roman law rather than Common Law or the Napoleonic Continental System.
This affects me (I'm in Edinburgh and so is my colo server). You, whoever you are, are probably safe.
Understable if you're North American, where 'Scottish' is all I really hear. But it is common in the UK, for example 'Scots law' for the legal system in Scotland.
I'm not trying to be condescending, but you should probably include a US centric example when asserting how the US works. The Scottish example is irrelevant, as it applies to Scotland, not the US. Also, if you try to relate Scotland and the US under the umbrella of the term "Common Law", but then say that that term has it's own interpretive meaning, you've loosened the association to the point where you can't strictly say that the Scottish and US systems are the same...
Also, as I've seen in other comments, we're going to get on the merry-go-round of defining "create law".
Even the UK (or at least parts of it) has this structure - where I am we have Scots laws, then UK laws then EU laws. Appeals can go from local courts to the UK Supreme Court and to the EU European Court of Justice.
It's not. Common vs civil law (i.e. where law comes from) is orthogonal to the roles of the fact-finder and parties in a dispute at trial. Most Americans will be familiar with an adversarial model, where each side's lawyer is making the best case for their side. In Scotland, the responsibility is aligned differently, towards helping the judge to discover the truth.
There's actually quite a substantial difference between Scots law versus English and Welsh law in particular! Even disregarding substantial divergence in legislation, Scots law is a mixed civil/common law system, versus the common law system of England and Wales. I'm no US legal expert, but I'd imagine the differences are roughly on par to those found between US states. My understanding is that it's similar to the sort of difference you'd see between Louisiana's system and other states'.
Eh, Scotland is in a similar position with a common-civil hybrid. The Channel Islands use a local customary Normon-derived legal system. And that's only in one European country!
"In civil law countries, judges are often described as “investigators.” They generally take the lead in the proceedings by bringing charges, establishing facts through witness examination and applying remedies found in legal codes."
"In contrast, in a common law country, lawyers make presentations to the judge (and sometimes the jury) and examine witnesses themselves."
Also, asked my wife who is Scottish litigator:
Most law that is case law but not criminal legislation is civil law. We not have an inquisitorial system system but in practice judges do ask questions regarding legal submissions made by parties.
Alaska and Maine have different legal systems too. Scotland is culturally considered a country, sure, but I'm curious whether that has any concrete meaning.
Aren't UK-style law systems kind of built upon precedents set by the interpretation of the law by judges? I don't like it either but that's how I've seen the differences explained
There is no "UK legal system". English law (covering the historic Kingdom of England, i.e., England and Wales) and Scots law (covering the historic Kingdom of Scotland, i.e., Scotland), and Northern Ireland law are all separate common law jurisdictions with their own oddities, and though they share some laws the extent to which precedents cross the different jurisdictions is unclear.
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I'm unfamiliar, but very curious--could you elaborate?
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