Anent Scots Law an’ the Scots Leid
By Jonathan Brown - Posted 18 June 2025
The Scots leid has been granted ‘official status’ within Scotland by virtue of the passing of the Scottish Languages Bill. While this might rightly be regarded as a watershed moment, given that the Scots language has been quite unjustly neglected if not openly repressed since, at least, the Union of the Crowns in 1603 (or perhaps since King James VI’s publication of the Bible in English), quite what the practical impact of such recognition shall be presently remains to be seen. One particular point (taken from the Scottish Parliament’s Policy Memorandum) is worth flagging up: ‘the policy objective of this [Act] is to provide further support for the Scots language and improve its status, profile and use both in public life and in community life’. This lofty and noble objective appears to run precisely counter to another general principle that the Scottish Government seem to have embraced: the notion that ‘legislation has to be in plain English’.
Hitherto, though the Scottish Government, and wider Parliament, have recognised that ‘that the Scots language is an essential part of Scotland’s distinctive cultural life and has greatly influenced our song, poetry and literature’, they have not fully appreciated the extent to which the Scots language is an essential part of our law and legal system. Indeed, based on the imperative indicated above – that ‘legislation has to be in plain English’ – it seems that the Scottish Government is committed to the eradication of the Scots language from the law, at least where new legislation is constructed.
This can be seen through the consideration of one concrete example: the case of the handy term familiar to Scots property lawyers, ‘ish’. As a technical term of art, the word ‘ish’ denotes the agreed end-date of a tenancy in respect of a contract of lease. It is not a word which the ordinary resident of Scotland is now likely to hear or use in day-to-day life, no matter its place in the legal system. Nonetheless, it is an ordinary term of the Scots language denoting, per the Dictionars o the Scots Leid, a ‘right or facility of exit or egress’, or ‘the conclusion of a period of time’. Hence, in an article in the 1853 Journal of Agriculture, on the preservation and increase of salmon, one anonymous author wrote of the advantages inherent in giving spawn ‘ish into the river whenever it might be desirable’ (The Salmon – Its Preservation and Increase, at 362).
Notwithstanding the preservation of this Scots term within our system of property law, and the fact that, rather like that handy word ‘outwith’, it has the potential to usefully sneak into academic literature – the proposed Leases (Automatic Continuation) (Scotland) Bill proposes to replace the single Scots term ‘ish’ with the compound English phrase ‘termination date’. This proposed Leases Bill is, for that matter, something of a serial offender in this regard: the very phrase in the short title of the Bill, ‘automatic continuation’, is designed as an English-language replacement of the Scots terminology of ‘tacit relocation’.
In giving evidence to the Scottish Parliament’s Delegated Powers and Law Reform Committee, I made the point that ‘good Scottish words… should be kept’ even in new legislation. (Mr. Paparakis, representing the Scottish Government, stated in his evidence to that same committee that I had put this ‘quite forcefully’.) The reasons for this appear, to me, obvious. In addition to realising the desideratum of preserving the Scots language where it is presently used (something which is clearly necessary to ‘improve… [the] status, profile and use [of Scots] both in public life and in community life’), retaining the use of Scots terminology in law seems fundamentally useful, given that we have, essentially, a rather unique legal system unlike any other which survives in the world today.
Hence, if in the course of reading about a legal dispute, or in seeking to avoid such a dispute, one encounters a phrase such as ‘tacit relocation’ and does not know what it means, one immediately has reason to look it up. If one does so, then (per my evidence at Holyrood) one ‘immediately get[s] a whole host of articles that are concerned principally with the subject as it is understood [in this jurisdiction]. [One] know[s] that the material [found] is good law, because it is talking about a concept that is expressed in the language that we use in this jurisdiction’ and indeed only in this jurisdiction.
Seemingly, however, the Scottish Government are as-yet unconvinced, since Mr. Paparakis’ evidence suggests that they remain of the view that ‘the benefits of changing that language outweigh the disadvantages of keeping it’. Thus, although the Scottish Parliament have now taken steps to recognise Scots as an ‘official language’ within the nation on the one hand, with the other they appear to regard the Scots language itself as something of an inconvenience best dispensed with when dealing with serious matters such as law reform. Yet with little exaggeration, it might be suggested that in many (though far from all) respects the Scots tongue has survived because of the survival of the independent Scottish legal system and the adoption of ordinary Scots words as legal terms of art.
While many haughty commentators, in ignorance, denigrate Scots as a mere ‘dialect’ of the English language, no one who is possessed of any degree of familiarity with Scottish legal history can deny that Scots is a distinctive language in its own right. It is something of a curiosity that the leading texts on the law of Scotland have generally been written in the lingua franca – Latin or English – rather than the ‘mither tongue’, even when the Kingdom of Scotland was itself an independent state. Nonetheless, the Scots language was ever integrated, and remains integrated, into the heart and soul of Scots law. As James Dalrymple, the 1st Viscount Stair put it: ‘no Nation hath so few words of Art, but that almost all our terms are near the common and vulgar acceptation’ (Stair, Institutions, dedication: page unnumbered). Words that now seem curious, perhaps archaic, to those of us living in 21st century Scotland, used as we are to speaking Scottish Standard English as our lingua franca, are in fact rooted in our shared linguistic history.
By drawing the ‘fundamental structural language’ (of which, see Martin Hogg, Obligations: Law and Language, (Cambridge University Press, 2017)) of our law from the ‘common and vulgar acceptation’ of the Scots people, the Scots legal system was able to preserve ordinary Scots words as ‘terms of art’ with bespoke, precise legal meanings. Some Scots terms – such as a favourite term of mine, ‘assythment’ (denoting monetary compensation paid in solatium for pain and suffering) – have fallen into disuse because legislative intervention has sought to abrogate the legal concept denoted by the word itself. Where such legislative intervention has occurred, it has typically led to legal confusion and what Niall Whitty termed ‘doctrinal muddle’.
To take the particular instance of assythment, the legislation in question – the Damages (Scotland) Act 1976, s.8 (now repealed, incidentally) – posited that ‘after the commencement of this Act no person shall in any circumstances have a right to assythment, and accordingly any action claiming that remedy shall (to the extent that it does so) be incompetent’. Yet this notwithstanding, the remedy of ‘assythment’ lives on in Scots law today, albeit that it has confusingly appropriated the Latinate name of solatium – a term with yet another particular meaning as a term of art – at common law. Prior to the passing of s.8, Veitch – writing in the Irish Jurist – observed that consideration of the relevant case law reveals that solatium, in the sense of pecuniary reparation for pain and suffering, is plainly the descendant of assythment. In spite of the pretentions of s.8 of the 1976 Act, solatium in this sense continued – and continues – to be awarded by the Scottish courts as a matter of course. All that the legislative enactment brought to bear, then, was the suppression of a particular, and useful, Scottish word.
We see the self-same phenomenon in action in this millennium, and in our Parliament based in Holyrood rather than Westminster. At the turn of the century, then MSP Tommy Sheridan introduced the Abolition of Poindings and Warrant Sales Bill. Though a Member’s Bill, this proposed enactment was duly passed into law and became the Abolition of Poindings and Warrant Sales Act 2001. Unsurprisingly, the object of this legislation was to abolish the diligence (debt-enforcement action) of poinding (the seizure of a thing as security viz some debt) and warrant sale (the sale of the things poinded at – to use the Scots – a ‘roup’: that is, a public auction). The Act, per s.4, came into force on the 31 December 2002: the day before that, however, the Debt Arrangement and Attachment (Scotland) Act 2002 (largely) came into force by virtue of s.64 of that Act.
This legislation, in line with the criticisms advanced by Mr. Sheridan, essentially reintroduced the notion of poinding albeit now under the clearly Anglicised nomenclature of ‘attachment’. Thus, the Scottish Parliament functionally failed to oust the controverted legal concept and instead did little more than replace Scots-language terminology with an obscure term of art taken from English law. This is hardly behaviour consistent with respecting, let alone promoting, the use and dignity of the Scots language.
Many other examples of this phenomenon, and those like it (i.e., the replacement of Scots terminology with English in legislation without attempted abrogation of a given concept) abound and a short blog post such as this hardly gives scope to explore this topic in full. Indeed, a short post such as this is also unable to fully explore the difficulties which are inherent in grappling with the particulars of ‘terms of art’: suffice to say, though they may seem like mysteries to the layman, terms of art are used by lawyers because they are, fundamentally, useful. They capture complex concepts concisely and economically. Interference with terms of art is liable to cause more problems than it solves – and however desirable the expressing of legal concepts in ‘plain English’ may seem, the desideratum of ‘accessibility’ is unlikely to be improved by positing, and ‘enshrining in law’, linguistic change.
Legislation, of course, ‘can break entirely with [an] existing tradition and even, in theory, with any legal tradition. It can remake the whole of a legal system. It can be the work of parliamentarians, dictators of kings who need have no knowledge of, or no respect for, the legal tradition’. Alan Watson observed as much in his excellently titled book, Failures of the Legal Imagination (at 36). Naturally, however, just because legislation can do this, does not mean that it should. Scotland, as indicated, has a rather unique legal system: this unique character is worth retaining. Likewise, our Scots language is only spoken within Scotland. The government itself recognises that steps must be taken to preserve and promote its ongoing use. Yet there is nothing in the Scottish Languages legislation to prescribe that Scottish lawmakers should use, adapt or retain the Scots language in lawmaking, that one aspect of civic life in which the Scots language most clearly continues to not merely survive but in fact to thrive.
It would be heartening to think that the omission of ‘law’ from the Scottish government’s catalogue of aspects of Scots cultural life was a simple oversight and that steps will be taken to rectify this. Alas, one cannot be confident that this is the case: much of the legislation produced by the Scottish Parliament in the decades since devolution – to say nothing of the Westminster Parliament pre-and-post devolution – has shown little regard for the singular character of Scots law or the peculiarities of the Scottish legal tradition. In striving to frame legislation in ‘plain English’, successive Parliaments have also shown a blatant disregard for the preservation of the Scots language even where it is presently used in law and civic life. The passing of the Scottish Languages Bill, in and of itself, will do nothing to rectify this.
While the passing of the legislation is to be applauded – that ‘the Scottish Ministers [now] must promote, facilitate and support Scots language education in schools’, per s.31, will hopefully mean that schoolchildren who deign to speak their native leid are no longer subjected to strictures to ‘speak properly’ – neither the Scottish Ministers nor parliamentarians nor parliamentary draftsmen need promote, facilitate and support the Scots language in law. Thus, it is clear that the legislation, as it stands, does not go far enough to promote and preserve the indigenous language of the Scottish lowlands. Those who wish to see the Scots language survive and thrive must, consequently, impress upon our government and legislature that the use of ‘plain Scots’ is, in many ways, better placed to facilitate effective law reform than is the affectation of the Saxon tongue.