Judicial Creativity in a Common Law System

Abstract

The most remarkable feature of Scots criminal law is that it is still a common law system. It contains, of course, many statutory offences, mostly recent and concerned with the regulation of modern developments such as road traffic or wireless telegraphy. There are also a large number of statutory frauds, dealing with all kinds of things, such as companies, bankruptcies, the regulation of professions, etc., but many of those are unnecessary, in the sense that the behaviour they prohibit can be dealt with as common law fraud, which covers the achievement of any practical result. There are also some modern preventive crimes created by statute, such as carrying offensive weapons in public, but other preventive offences, such as housebreaking with intent to steal, were created by the common law. There are very few of what might be regarded as basic crimes which are statutory. The most striking example is the crime of incest which, until recently, was dealt with under the Incest Act of 1567, passed by the Scottish Parliament in the wake of the Reformation. The Incest Act incorporated the 18th chapter of Leviticus into the law of Scotland, and with some amendments, it remained the law until the passing of the Incest and Related Offences (Scotland) Act 1986. But that was an oddity, and there is some authority that parent-child incest is a common law crime. The basic crimes, such as those concerned with injuring the person or property of others, are essentially matters regulated by the common law, the creations of judges, without any statutory definitions, and all with the same maximum penalty of life imprisonment.