The Art of Persuasion: Embracing the Auld Enemy and Beyond

Abstract

This article explores to what extent foreign law is influential in the decisions of the High Court of Justiciary in Scotland. Recognising that domestic criminal law is frequently acknowledged as insulated from external influence, this article unpacks the treatment of foreign law within domestic criminal courts. Acknowledging that Scots law has embraced the doctrine of stare decisis and precedent, 44 decisions from July 1999-February 2025 were examined to established in what circumstances foreign law was considered persuasive. This research identifies that the expectation of engagement with foreign jurisprudence is heavily influenced by the appetite of the judiciary. In doing so, this article can assist practitioners and those who teach future legal professionals on when to incorporate foreign jurisprudence into their arguments and its likely reception.