Peter Robson introduces the first of his analyses of film and the law. Peter is author of "Film and the Law" and teaches law at Strathclyde University

Scots Law has been described as encapsulating Scottish characteristics. According to Lord Cooper “The Scottish legal tradition is a ...in a very real sense a typical product of the Scottish ethos and ...is ...the pre-eminent symbol of the existence of Scotland as a separate nation. There has been a tendency in the past century to simplify the image of Scotland to a kind of tourist “shorthand” of lochs, castles, tartan and bagpipes. The Homecoming advertisements for 2009 seek to avoid this although those urging the Scottish diaspora to return avoid actually living physically in the actual country. It is a little like Alan Bennett’s gritty northern writer from Beyond the Fringe and his love of the blue of the Mediterranean reminding him of the blue of the miners’ eyes back home - writing from his island in the Med.

The representation of the history and literature of Scotland in film confirms the tourist vision and adds Scottish character traits. The Scot in film is pawky, canny and resourceful. (The Maggie 1954) He - usually he - is resistant to authority but with a commitment to the common good (Whisky Galore 1948) He is resistant to big business (Local Hero) but is proficient in small business ventures both formal (Gregory’s Girl) and informal That Sinking Feeling). He can also be violent (Trainspotting; Sweet Sixteen 2002), mean (39 Steps; Sailor Beware). Whilst he is sentimental and even cross-cultural (Ae Fond Kiss 2004) he is definitely not English (The Flying Scotsman 2004). He is often shown struggling against adversity (My Name is Joe 1997; Ratcatcher 1996) and she does not always inhabit a rural retreat.(Red Road 2005).

There is in film a sense of Scots as distinctive. This may be in danger of descending into cliché as with the small violent Begbie in Trainspotting but it not difficult to distinguish the Scot from watching a selection of post war film. Since Scotland has a distinctive legal culture one might wonder whether elements of this would be found in the popular cultural representations of justice issues pertaining to Scotland.

The very specific attributes of Scots law and its distinctive approach to legal issues is, as far as I can judge, almost entirely absent from the filmic sorties into justice issues. The central distinction between our system and that in England and Wales has been a reliance on Civilian sources – Roman law, European commentators like Grotius and Pufendorf and Scottish Institutional writers like Stair, Erskine and Hume. The use of a bank of judicial decisions built up over centuries providing the principles of the “common law” was less frequently encountered in the Scottish system, but it does exist.

The films which do show the Scottish system of justice at its adjudicatory stage include the coverage of the distinctive “not proven” verdict in the story of the mid Victorian death of Pierre L’Angelier in Madeline Smith (1950). Other less obvious encounters with the courts are found in Greyfriars Bobby (1962) and the remake The Adventures of Greyfriars Bobby (2006). Whilst both these films ponder on various legal philosophical issues - to whom does a stray dog belong ?; who has the responsibility to pay for the dog’s licence; what is the status of by-laws; and how should discretion be exercised? – there is nothing germane to the situation of Bobby in Edinburgh as opposed to Eastleigh or Erith.

We see law generally as a class weapon in Rob Roy (1993) and as general means of cultural oppression in Braveheart but neither of these films would lead one to imagine that Scots law had any special status or existence. Nor is there anything specific in the recent Stone of Destiny despite the appearance in it of the protagonist in the EIIR case John MacCormick.

There is a slightly different picture when we look at the small screen portrayal of justice in Scotland. With the arrival of Sutherland’s Law (1973) on DVD 36 years after its first transmission we at last have the opportunity to see and contrast the special prosecutorial role of the Procurator Fiscal. This contrast with the role of the police in England and Wales has rather been lost over the years with the introduction of the Crown Prosecution Service in 1985 replicating the P.F. role. There remains, however, the possibility of making a comparison between what happens in the fictional Glendoran and the decision-making found in Law and Order (U.K.) in 2009. The Justice Game (1989) takes an approach which is encountered in post-Grisham fiction – the lawyer as private investigator rooting out injustice and scandal. This links it with John Sutherland and Alex Duthie’s principal activities in Sutherland’s Law. In Advocates (1991) we have a mix of issues centring on the credibility of witnesses and issues like middle-class spousal abuse. Rumpole without the humour but with more attractive outside shots of Edinburgh.

The version we have of Scottish legal culture is one which provides no reason to suppose that there is any difference between Scots and English law. The “Scottish Legal Tradition” scarcely exists if film is one’s guide. In the world of film the oppression by the powerful takes place in their courts- whether their imperial code is based on Anglo-Saxon, Norman or other models or is related to the Codes of Roman Law or Institutional sources is not in evidence. Fortunately television offers a glimpse of the world of Scots Law. Anyone seeking to encounter anything of Lex Caledonia in the media is better served by the small screen than the more prestigious medium of film. Little though, has been provided to those who might seek to illustrate the coherence or ethos of Scots law in any existing popular culture screen vehicle. Which, to borrow from The Fast Show, is a shame. Or maybe I am looking at the wrong films?

Peter