ABSTRACT
Delict has long been recognised as a central category within Scots Private law. However, the reasons for characterising certain conduct as delictual and the justifications for treating it as a distinct taxonomical category have not been explored very thoroughly.
These questions matter because matter because they tell us something about how delict relates to the rest of private law in Scotland and thus to build a picture of how the whole system fits together. They also bear on the relationship between Scots law and the law of torts in Common Law systems, with implications for the appropriateness of relying on both Common Law authorities and on the burgeoning theoretical literature which addresses the justification and function of tortious liability.
This article traces the development of Scots lawyers’ attempts to articulate the rationale delictual liability and to situate delict within the broader framework of private law. In doing so, it seeks to show that a range of different models were explored, including one that bears striking similarities to the rights-based model which has been proposed for the Common Law of torts. It thus demonstrates that further exploration of such a model would not amount to impermissible anglicisation or abandonment of Scots law’s traditions.
MacLeod, John, Why Are The Wrongs Wrong? Scots Lawyers’ Approaches To Justifying Liability In Delict (February 13, 2025), Edinburgh School of Law Research Paper No 2025/03.
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