SOME CHARACTERISTICS OF SCOTS LAW*
| Date | 01 July 1955 |
| Author | David M. Walker |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00304.x |
| Published date | 01 July 1955 |
THE
MODERN
LAW
REVIEW
Volume
18
~
July
1955
No.
4
SOME
CHARACTERISTICS
OF
SCOTS
LAW*
IN
speaking on the subject of some
of
the characteristics of Scots
law
I
think
I
may fairly assume in this audience the knowledge
that Scots law
is
different from English. Now this may appear a
very modest assumption but beyond that
it
is unsafe to go because
experience has proved to every Scots lawyer that the existence of
his system distinct from that of England is by no means universally
or
even generally known. There are no doubt many reasons
for
this: there is the natural tendency to equate the larger part of the
United Kingdom with the whole; there is the common, but quite
unwarranted, use of the term England for the United Kingdom, a
practice which many Scots find highly objectionable
l,
and the
existence of a common legislature and in many departments a
common executive and common system of administration likewise
tends
tQ
keep people, particularly abroad, in ignorance of the
individuality of Scots law.
It
is a sad commentary on the state of
knowledge that at the Third International Congress of the Inter-
national Bar Association in
1950
there was some difficulty in estab-
lishing the entirely separate status
of
the Scottish legal profession
in the United Kingdom, and
it
was only with the support of the
leading English representatives that the Scottish claim was con-
ceded.2
"
It
was gratifying to observe that interest in the law
of Scotland developed among
a
good number of the delegates who
were interested in comparative law, yet it was regrettable to note
*
An address given to law teachers of the University of London at the Institute
of Advanced Legal Studies.
1
One recent and extremely unfortunate instance
of
this was in the Queen's
broadcast on Christmas Day, 195:; from New Zealand, when she referred
to
herself as
"
Queen of England. This provoked considerable feeling
in
Scotland. The matter was raised in various local authority and other meetings
and resulted in protests to the Secretary of State for Scotland. Needless
to
say Scots with nationalist sympathies (and they are many) bitterly resented
the words, though that does not involve lack
of
loyalty to the Monarchy or
want
of
regard or affection for the Queen personally.
Inland Revenue
v.
Mackintosh
(Edinburgh Sheriff Court,
1954)
shows that this slip has resulted
in at least one refusal to pay income tax. Compare the dissatisfact,ion with
the numeral in the royal title:
MacCormick
v.
Lord
Adcocate,
1953 S.C. 396,
discussed 69 L.Q.R.
512.
2
See
report
in
1951
S.L.T.(News) 37.
321
VOL.
18
21
322
THE
MODERN
LAW
REVIEW
VOL.
IS
that many foreign lawyers came to the conference quite unaware of
the separate existence of the Scottish legal system. Much remains
to be done to impress
on
the lawyers of the world the part which
Scots law can and should take in mediating between the civil and
common law systems.”
This complete ignorance is,
I
am afraid, quite common even
among law students in England and
no
doubt
it
is the normal state
of affairs among the general public. The public’s knowledge
of
law is derived mostly from the press and from such sources as
detective fiction, both of which deal with English law and
pro-
cedure far more frequently and fully, and consequently English
terminology and forms are far more generally known than Scottish;
the coroner’s inquest is better known than the workings of the
procurator-fiscal’s department, while even in Scotland, for every
one who speaks of confirmation, ten will speak of probate. While
Government publications are
on
the whole accurate and reasonable
in their treatment of the differences which exist not all writers
or
publishers are
so
scrupul~us.~
Moreover once the existence of distinction between the two
systems of law is admitted, the extent of that difference
is
commonly much under-estimated, not least
in
Parliament and in
the House of Lords. The view is sometimes expressed that Scots
law, apart from criminal law and procedure and matters
of
terminology, is substantially the same as English.’
I
have
no
hesitation in saying that that view is fundamentally wrong.6
It
is
true that in many cases both systems of law would grant what is
in effect the same remedy
on
a given set of facts, but the principles
underlying the decision may
be
fundamentally different. This is
well brought out
in
Leitch
v.
Leyd~n.~
That case was an applica-
tion for interdict
(anglicd
injunction) by a firm of mineral water
manufacturers against a grocer who had refilled from his soda
fountain empty bottles tendered by members of the public, the
bottles being marked with the complainers’ name and being their
property. The House of Lords affirmed the interlocutor of the
Court of Session refusing interdict. But what is interesting is the
That body
was
abolished in
1707.
So
too Bagehot and Amos both wrote on
The
Enqlish
Constitution.
Legal!? there is no such thing. Hood Phillips
(Constituthud
Law,
p. 606)
says
The United Kingdom is the State
for
the purpose
of
International relations, though it is often
popularly
but
inaccurately
referred
to
as
Great Britain, Britain
or
England.” Books on constitutional matters
invariably devote quite inadequate attention to the existence
of
differences
in the operation
of
constitutional and administrative law between the two
countries.
For
,a short statement from the Scottish standPoin$ see
Fraser,
Outline
of
Constitutional Law
(2nd e$, Hodge, 1948).
5
See this view criticised
by
Smith, Comparative Observations on Scots and
English Consistorial Law,” in 1952, 69 L.Q.R.
30.
6
David,
Introduction
d
I’Etude
du
Droit privd de VAngleterre,
at p. 164, char-
acterises Scots law as
”
tr&s diffckent du droit englais.”
7
1931
S.C.(H.L.)
1;
[1931] A.C.
90.
=
Ibid.,
p. 39.
4
What of the Pelican book entitled
The English Parliament?
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