苏格兰法律的由来与发展

苏格兰法律的由来与发展世界上有两种Legal System，一种是Continental 或者称作Civilian，这个System是基于Roman Law，普及在欧洲国家。

另外一种System是Anglo-American System，这个System基于英国的Common Law，这种法律System的运作框架正和这个Legal System 的名字一样；普及在英格兰，美国以及以前的大英帝国殖民地，例如加拿大和澳洲。

苏格兰的Legal System 是基于上述两种Legal System 的一个混合Legal System。

It is said to have more empathy with the civilian systems of law in many respects. However, there is no doubt that the strongest influence for several centuries has been the law of England. Nevertheless, the Scots system retains significant elements of difference which have been protected by the Act of Union 1707 and jealously guarded by the courts since that time.从1603年到1707年，苏格兰和英格兰有着自己分明的两个不同的最高统治者，共同分享最高统治阶级的权利。

两个国家都拥有他们自己的国会，幷且，各个独立的国会也撰有不同的法律。

在1707年，英格兰和苏格兰国会同意在签订条约下合二为一；苏格兰国会与英格兰国会相互承认交换生效法律文书，旧有的两个国会被废除，新成立的国会落座在英格兰伦敦成为 Great Britain 的一个全新的国会。

Although this meant that there was now only one Law-making body between the two countries, it did not mean that Scots Law was abolished, since the Treaty, and then the Acts of Union, preserved the status of Scots Law and the Legal System.So, what was the important about this Legal System that was preserved by the Treaty? As noted above, it was a mixed system of law, derived from various historical influences. One of the main influences was of cause that of English Law, particularly before 1296, when Norman noblemen and clergy settled in Lowland Scotland bringing their feudal system of land tenure and justice.Another great influence at this time was the Church of Rome and its canon law. It is thought that canon law introduced elements of established. The idea of the king as ' fountain of justice ' helped to establish a more uniform system of law; cases were commenced by the issue of a writ or ' brieve ' in the king's name. This brieve would require an official to carry out an action or investigation.从1296 至1603，苏格兰与英格兰不断的爆发战争，苏格兰与法国结为盟国，thus encouraging influence from the Continent. Regular meetings of Parliament were held with the burgesses from the burghs participating in the Parliament; the levying of taxation was made with their agreement. At first, however, the Parliament's main role was a court of first instance and for appeals. It was not until the reign of James I (1406-37) that Parliament became primarily a legislature.在 15世纪和 16世纪，相当数量的法令的条令生效，影响了接下来的之后的数个世纪。

From the Union of the Crown in 1603 up until 1800, there was a great interest in Roman law and many young Scotsmen studies in France and Holland, bringing back with them the principles of Roman law and using them when they became practitioners and judges in Scotland. Roman law became a major factor in forming Scots law-particularly in the law of obligations and moveable property. In 1617, the general Register of Sasines was set up to record transactions relating to land, helping to ensure that buyer of land in Scotland receive secure title to that land.From 1655, there was much movement in the legal system with the publication of 'institutional writings'. These became important sources of law.The High Court of Justiciary was established in 1672, consisting of five judges from the Court of Session and the Justice-General and Justice-Clerk. The judges were known as Commissioners of Justiciary (Now Lords Commissioners of Justiciary) and they dealt with criminal cases in Edinburgh.The Union of the Parliaments of Scotland and England on May 1, 1707 dissolved the two Parliaments and created a new Parliament of Great Britain. Article XIX of the Union Treaty specified that the Scots Law and the Scottish Courts should continue. Although the Treaty stated that no causes in Scotland should be heard in the Courts of Chancery, Queen's Bench, Common Pleas, ' or any other court in Westminster Hall', this was held not to include the House of Lords and the practice of sending civil appeals to the House of Lords began within a short time of the Union coming into effects (Greenshields v Magistrates of Edinburgh 1710-1711 rob. 12.).From 1800, the Napoleonic Wars prevented the travel of Scots students to the Continent and accordingly, English law now became the major influence on Scots law. Two Factors contributed to this1. the House of Lords now heard all Scottish civil appeals; and2. the Westminster Parliament passed all lawsBoth of these institutions were based on English models and were people by mainly English-trained lawyers and judges. Concepts of English law were used to decide Scots law, thus changing the Scots principles and causing confusion. Growing concern with the decisions made by the House of Lords during the eighteenth and early nineteenth centuries led to the passages of the Appellate Jurisdiction Act 1876, ensuring that at least one of the judges in the House of Lords was Scottish-trained.In the field of government of Scotland, the office of Secretary for Scotland was created in 1885 to administer matters such as law and order and education in Scotland and this office became a Cabinet post in 1892. From 1979, the Secretary of State for Scotland belonged to party which did not have majority of Scotland seats in the UK Parliament, creating a 'democratic deficit' in Scotland; thus it could be said that the Government, as represented by the Secretary of State, did not represent the majority of the electors, e.g. the replacement of household rates with the community charge or 'poll tax'. There was an impression that the needs of Scotland were not being given due consideration by a government which drew its support from other parts of the UK.The 'democratic deficit' led in 1988 to the publication of A Claim of Right for Scotland by the Campaign for a Scottish Assembly. This declaration stated that Scotland had a right to decide her own constitution and called for a convention to be set up to devise a scheme for a Parliament or Assembly. The next year the Constitutional Convention was set up, drawing support from a wide range of people and groups. In 1995 the Convention published its final report 'Scotland's Parliament. Scotland's Right' and this formed the basis of the Labour government's proposals in 1997. After a referendum in September 1997 affirmed the support of the Scottish electorate for devolution, the UK Parliament passed the Scotland Act in 1998 and a new system of government came into being in Scotland in May 1999.谁掌管着法律体系？英格兰和威尔士在英格兰和威尔士，构建法律体系的责任由司法部和内政部分担。