Sheila Tulloch
- Partner
Insights | Rural
Udal Law: A unique legal tradition in Orkney and Shetland
11 February 2025
Udal law refers to the type of landholding introduced by Norse settlers to Orkney and Shetland. While Scots law generally applies across the islands today, certain aspects of udal law remain, particularly in relation to land and foreshore rights.
A brief history
It remains unclear whether the first Norse settlers came to Orkney for political or economic reasons, but it is evident that the settlers retained close links with Norway. Until the events of 1468-69, the Norwegian Crown always maintained some sort of political authority in the islands.
In 1468, Orkney was pledged as part of the dowry of Margaret, daughter of the King of Denmark, Sweden and Norway, in her marriage to James III of Scotland. Shetland was pledged in 1469 for the remainder of the dowry which the bride’s father had been unable to raise in cash. These two documents formed the basis of the Scottish Crown’s right to Orkney and Shetland.
What laws were in force at the time?
During Norse rule, it is believed that Orkney followed a local variation of the lawbook issued by King Magnus Haakonsson (known as Magnus ‘the Law-Mender’) in the thirteenth century. This code was a single book intended to apply to all districts in Norway, with modifications permitted for each particular district.
One of the later versions of the Magnus Code was common to all the western colonies of the Norwegian empire. Despite Scottish influences being on the rise in Orkney before the pledge of 1468, there are clear references to the Magnus Code in Orkney court documents issued around that time.
The language of the Code was of course Norse, and the last known Orcadian legal document written in Norse is dated 1426. By 1436, the legal profession in Orkney was writing in Scots. By the late sixteenth century, court records would suggest the islands were administering a curious combination of udal and Scots law and procedure, in a mixture of languages.
The local version of the Magnus Code seems to have disappeared around the early seventeenth century. Whether or not it continued to be applicable in Orkney and Shetland was not judicially examined in the Court of Session until what is known as the St Ninian’s Isle Treasure case in 1962. In this case, the judge was of the view that nothing could be said with certainty to remain of that law “save udal tenure of land, scat, which was the return for udal lands, scattald, which was a right of commonty, and a few weights and measures.”
Nature of udal law
The characteristic feature of udal law is absolute ownership. Grants of land did not emanate from the Crown as feudal superior and there was no concept of land being held from the Crown in return for service, which marks its distinction from feudal law.
What is its relevance today?
Today, the most common question lawyers receive in relation to udal law relates to rights to the foreshore. This is generally defined as the shore between high and low spring tides. In mainland Scotland, the foreshore can be alienated by the Crown, its proprietary right being based on the Crown’s position as feudal superior. In contrast, the Crown has no assumed prior right to the foreshore around Orkney under udal law.
The right to the foreshore under udal law carried with it various rights which were an important economic asset, although their extent is difficult to determine. This was thought to include rights to whales, seals, wreck and bait but was also considered to be subject to certain public uses such as navigation and passage. Whereas these historic rights pertaining to the foreshore may no longer benefit landowners, ownership of the foreshore can now bring economic advantages to landowners through projects involving harbours, fish farming, and cables for renewable energy developments.
Around the coastline of Orkney, a landowner’s title will normally include the adjacent foreshore unless the presumption of ownership has otherwise been displaced by a grant to either the Crown or another third party. When a property is being sold or rights granted over it, it is for the parties to a transaction to consider the implications of udal tenure and to ensure that ownership of the foreshore is properly determined. Furthermore, when a property is first registered in the Land Register, whether due to a sale or a voluntary registration, then the extent of the subjects (including any foreshore) must be carefully mapped.
We are here to help
If you are unsure what is included in your land ownership, one of our solicitors will be able to assist you in interpreting your title deeds. Contact us today at kirkwall@andersonstrathern.co.uk to find out more.
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