ABSTRACT
Despite its proximity to England, and its undoubted English influences, Scotland is not a common law jurisdiction, but owes its legal heritage to Roman law and is, therefore, much more a civil law jurisdiction than anything else, for example, in its reliance on doctrinal writers. It has, however, adopted a limited version of the English doctrine of precedent, hence its case law is instructive and significant from a comparative point of view. The Scots legal approach to the unborn fetus is contained in cases such as Kelly v Kelly (1997) The Times, 5 June. In this case, the Second Division of the Inner House of the Scottish Court of Session held that the fetus has no independent legal existence or actionable rights in Scots law. Therefore, Scots law did not confer on the fetus a right to continue to exist in the mother’s womb. The court was prepared to accept that, in criminal law, abortion was a distinct crime and not subsumed in the crime of murder.
