The Law of Defamation in Scotland

Abstract

There are differences between the law of Scotland and the law of England on Defamation which cannot readily be accounted for by any differences in the sources of the two systems. In some chapters of jurisprudence Scots law has derived from the Civil law or the Canon law characteristics which distinguish it from English law. But Scotland has not made substantially larger draughts on these special sources than has England in forming the principles of its law of defamation. Nor can it be said that Stair, who contributed so much to the formation of Scots law, made any marked contribution here. In the one brief passage (Inst. I, ix, 4) in which he treats of defamation he leaves it to be supposed that the law of Scotland, so far as claims for damages for defamation are concerned, and apart from minor differences of procedure, is identical with the law of England. ‘Such actions’, he says, ‘upon injurious words, as they relate to damage in means, are frequent and curious among the English, but with us there is little of it accustomed to be pursued, though we own the same, grounds, and would proceed to the same effects with them, if questioned.’ It sometimes happens that differences between Scots law and English law are to be explained by differences in the history of the Courts and of jurisdiction in the two countries. But this explanation is at first sight of little avail in the chapter of defamation, and some at least of the distinctive differences which will be described must be referred to other causes.