Precedent

Question 1

what can courts higher up in the hierarchy do

Answer 1

make decisions (lay down precedents) that bind those lower down in the same hierarchy in future and similar cases

Question 2

what is the Scottish hierarchy of civil courts

Answer 2

• UKSC
• Inner House of CoS
• Sheriff Appeal Court and Outer House CoS

Question 3

what is a ‘similar case’

Answer 3

judge has to ask himself if it’s appropriate to characterise the facts of the case in front of him as having the same material facts with the precedent

Question 4

what is the most important difference between legislation and precedent

Answer 4

relates to the significance of words in a statute compared to words in a reported decision

Question 5

what is the long-standing view going back to Roman law in relation to legislation and precedent

Answer 5

• legislation is a source of written law
• cases or decisions are sources of unwritten law

Question 6

how can the municipal law of Scotland can be categorized into two types

Answer 6

• written
• unwritten

Question 7

what is written law

Answer 7

formal and enacted by the supreme authority, always recorded in writing

Question 8

what is unwritten law

Answer 8

based on the presumed consent of the legislature and is passed down through oral tradition and widespread practice

Question 9

what gives legislation its meaning and force

Answer 9

the actual words used by parliament

Question 10

how does case-law work

Answer 10

• Thousands of words in case-law – but they don’t carry and transmit rules in the same way that words of legislation do
• Rarely will you find a case where a judge articulates something which might be taken to be the actual principle or rule of the case – ratio decidendi
• It’s for subsequent judges to extract/ discover that essentially unwritten rule from what the judge deciding the past precedent had said about the disposal of the case
• The rule that emerges from a case is unwritten