Secondary Sources of Law

Question 1

What are ‘Secondary Sources of Law’?

Answer 1

‘Law that is created from a source that is not a constitutional defined law-making person or body.’

Question 2

How was English and Scottish law developed?

Answer 2

English law was developed as practitioners’ law, legal practitioners arguing about some legal point affecting real people- their clients.

Scots law on the other hand in its earliest days was a form of professor’s law, law of universities, intellectual discipline rather than a matter of practical application.

Question 3

what’s a direct source of law for Scotland?

Answer 3

Institutional writers

Question 4

What do institutional works have the sane authority as?

Answer 4

inner house of the court of sessions (highest civil court in Scotland)

Question 5

Identify some of Scotland’s institutional works that are not used.

Answer 5

• Craig’s lus Feudale (Feudal law/land law)- 1655: No one pays attention to him anymore
• McKenzie’s Law and Customs of Scotland on Matters Criminal (1678): This is old.

Question 6

What three institutional works are the most famous/authoritative in Scotland?

Answer 6

1. Stair- Stair’s Institutions of the Law of Scotland (1681)
2. Erskine- Erskine’s Institute of the Law of Scotland (1772)
3. Bell- Bells’ principles of the Law of Scotland (1829)

Question 7

Where did Stair copy the structure of the Scottish Legal System from?

Answer 7

By Justinian institute of Rome - Roman law

Question 8

Why is Stair important?

Answer 8

Because of him the Treaty of Union 1707 preserved Scots law , as a separate legal system because of his book, without it we wouldn’t have one.

Question 9

Name some other Institutional works

Answer 9

• Bankton’s Institute of the Law of Scotland (1753): the language is more modern and graspable than Stair’s archaic language.
• Erskine’s Institute of the Law of Scotland (1772): He is regarded as the holy trinity, Turgid stuff!
• Bell’s Principles of the Law of Scotland (1829): Good for commercial law- interest is in commercial
• Kames’ Principles of Equity (1772), wrote masses, part of Scottish enlightenment. He wrote about history, agricultural reform, English law (equity is an English idea), European law and scots law (wide rounded figure).
• Hume’s Commentaries on the Law of Scotland (1829): Major criminal institutional writer
• Alison ‘s Principles of the Criminal Law of Scotland (1833): Criminal lawyer

Question 10

What are some examples of other legal literature

Answer 10

-Subject Area Textbooks (focuses on particular areas of law):
*Borthwick’s Defamation (1830)this as the earliest one in Scotland.
*MacDonald’s Criminal Law (1866)
*Rankine’s Landownership (1875)
*Gloag’s Contract (1914)
*McBryde’s Contract (1990)
*Wilkinson & Norrie’s Parent and Child
(1992)

• STUDENT TEXTS (discursive)
• Encyclopaediae:
• Green’s Enc (1896, 1914-1949)
• Stair Memorial Enc (1981-date)
• English Textbooks
• Journals: full of articles about particular areas of law.
• Juridical Review (1889-date)
• Scots Law Times (1893-date)
• Law Quarterly Review (1884-date)

Question 11

Name some Non-Legal Sources

Answer 11

• Media: never rely what you read on media, it’s simplified for regular readers
• Wikipedia
• Google: only a starting point

Question 12

Who was stair?

Answer 12

He was lord president of the court of sessions, chairman of the Scottish privy council, then sent into exile when Charles II died and James 7and 2was king where he was exiled to Netherlands.

Question 13

What is custom?

Answer 13

Before stair wrote law, everything was custom.

Custom is the way things have been because they’re so universally expected they’ve become things we have to do.

Custom is a safety net and as a source of law is very important.

Question 14

What are some case examples of custom?

Answer 14

Bruce v Smith 1980: A pod of Wales came into the bay in Shetland on an island called yell. The men came down to kill and capture the Wales and then fed the people with the Wales. The landowner complained that because they were killed on his property they were his. It went to court of sessions, they asked what’s the custom, it was aid that the people who kill, kill on behalf of the whole community therefore it’s the whole community that owns the Wales.

Stirling Park & Co v Digby Brown 1996:

Question 15

What’s customary institutions?

Answer 15

They’re central to our legal system.

The crown (prior to 1688): there are no statute that sets up the crown it just exists and has developed over thousands of years. It’s a customary institution

Jury: no statute saying ‘trial by jury’ they’re the customary way of finding fact

Question 16

What’s equity?

Answer 16

similar to custom

England has 2 judicial systems: courts of law and courts of equity;they decide acts is right and just through what is customary i.e. universally accepted

Scotland courts of law are EQUITY , they’re not separate.

Question 17

What’s nobile officium?

Answer 17

Real sources of equitable jurisdiction in Scotland is located and know as ‘nobile officium’ of the court of sessions. They declare law because it is just to do so.

If law itself doesn’t give the right answer the court of sessions can excessive the noble office to give the right answer (doesn’t happen often).

Question 18

What’s international law?

Answer 18

This is customary law but on an international level.

I.e. relations between states are not governed by law but custom.

Question 19

What’s customary international law?

Answer 19

• Deals with the relation between states
• Provides enforcement mechanisms but only through indirect means, UN Security Council can use force in different parts of the world to being leave.
• Part of Scots domestic law

Question 20

What are international tribunals?

Answer 20

It’s a more direct source of law.

Question 21

What was the Nuremberg Tribunal?

Answer 21

Established end of WW2.

Crimes commutes by Nazis were held to account

Superior orders were no defence to the commission of war crimes.

War crimes/crimes against humanity

Question 22

What were international conventions?

Answer 22

Establishes human rights

Treaties