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Sources of Law Flashcards

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1
Q

Why does law exist?

A

Laws are about regulating how people and work.

Legal systems act as a framework for social co-operation within any society.

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2
Q

National Legal systems

A

Scotland, Germany… Note federal/quasi-federal nations

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3
Q

Regional Legal systems

A

Geographical - EU, Council of Europe

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4
Q

International Legal systems

A

UN, WTO

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5
Q

The Laws of Great Britain

A
  1. England & Wales
  2. Scotland
  3. Northern Ireland
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6
Q

Legal Subject matters

A

Contract, Family, Criminal, Property, Company, Delict, Health & Safety, Employment, Commercial etc.

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7
Q

Why is Scottish Legal system mixed/hybrid legal system? What is it a mix of?

A

Apprentices used to travel bringing back influence from their countries of function. Among these, various political and economical factors have influenced this

Scottish Legal system is mixture of Roman Law, European Law system And Common Law

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8
Q

Tripartite Legal System

A

1) Executive - Government
2) Legislature - Law making body: Looks at the laws
3) Judiciary - Court system

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9
Q

Describe the function of Executive in Tripartite Legal system

A

Government, Decides what new laws to put forward, what new laws to create and applies the law

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10
Q

Describe the function of Legislature in Tripartite Legal system

A

Law making body (Legislature), looks at the laws, passes the laws, comes up with statutes, HOUSE OF COMMONS AND LORD

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11
Q

Describe the function of Judiciary in Tripartite Legal System

A

Judiciary is the court system, interprets the law

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12
Q

What is the nature of the law?

A

Law sets the minimum standard of behaviour for all, and if the behaviour falls under the standard, Law protects the victim and prosecutes the offender

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13
Q

What is Criminal Law

A

Punish offender, (state v Individual) more about jail and put towards by state or government, Prosecutor and in Criminal courts i.e. District courts, Sheriff’s court and High court of Judiciary. E.g. Murder, theft, driving under influence, false trade description of goods, rape, incest

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14
Q

What is Civil law

A

Compensation based, individual v individual. About returning the victim to the state where they were before the wrong occur. Heard in Civil courts; Sheriffs court, court of session and House of Lords. Examples are contracts, delict, property law

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15
Q

What is the difference between Civil Law and Civil Law system?

A

Civil Law = Private law (action type)

Civil Law system = Roman Law system, legal rules and principles

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16
Q

Where can you find law?

A

Legislation, court/tribunal decision (‘case law’), legal text books, journal articles, electronic databases such as Westlaw

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17
Q

List 5 - Sources of Law

A

1) Legislation (Roman law/Civil law)
2) Common law / case law / Precedent
3) Institutional Writings
4) Custom
5) Equity

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18
Q

What is the Hierarchy?

A

1) EU legislation
2) UK Legislation
3) Scottish Legislation

Remember suspended if in conflict with higher law

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19
Q

European Legislation (Not too important)

A

1) Primary Legislation - various treaties, Lisbon treaty is the latest since 1952s
2) Secondary Legislation
a) Regulations - immediate and direct effect
b) Directives - sets out legally binding objectives (up to the individual member state to act it)
c) Decisions - binding to addressee

20
Q

Case Law of the Court of Justice of the EU “ECJ”

A

Influential reports, statements issues by the comission

21
Q

European court of justice

A

EU Enforcement procedure, actions brought by European Commission. Principles: European Union Law Supersedes Domestic Law
Direct applicability

22
Q

European Court of Human rights

A

Sits In Strasbourg, France, Established by the European Convention of Human Rights 1950
-> Integrated to UK legal system by Human Rights Act 1998

Individuals may rise case there once UK stream is exhausted.

23
Q

Different types of acts

A

Scots act (pre 1707 Union), Acts passed by Westminster - Legislators
a) Public - general act
b) Private - local Act or personal Act
and Acts passed by Scottish Parliament

24
Q

How Does a Bill become an Act in Westminster? (Likely hood for multiple choice)

A 
Bill becoming an Act in
Westminster – Endorsed/Initiated by the
Government (often)
1. Bill in the house of
Parliament
2. 1st reading – formal stage
3. 2nd reading – Bill debated on
and voted on in both houses
-> Win vote on both houses
4. Committee Stage
• Detail of Bill examined
• Does it meet purpose?
• Amendments proposed
5. 3rd reading – Give approval
BOTH HOUSES
6. Royal Assent
IS A STATUTE / LAW
25
Q

How does a Bill become an act in Scotland?

A 
1. PRE-STAGE : highest law office in
Scotland -look at it so parliament is
not exceeding their responsibility
2. STAGE 1
• Committee considers general
principles of the Bill
• Parliament looks at report and
considers general principles of
Bill
• Decides if agrees with general
principles
3. STAGE 2
• Committee examines each
section and makes
amendments
4. STAGE 3
• Parliament passes or rejects Bill
5. POST-STAGE
• Highest law office looks at it
again, so its correct
6. Royal Assent

The Scottish Bill procedure involves a lot more scrutinity, where in Law has to just pass both houses. The key is to ensure openness and encourage participation.

26
Q

What are Private Bills and what is Private members’ legislation?

A

Legislation promoted by individuals outside Parliament who petition Parliament. Rate and usually used by local authorities.

Private member’s legislation - MP’s Introduction of Bills in the purpose of changing laws applying to general population

27
Q

What is Delegated Legislation and what are the forms?

A 
Delegated legislation is law that is not passed by an Act of Parliament but by a government minister, a delegated person or an entity in the United Kingdom. ... Although a large volume of delegated legislation is written without close parliamentary scrutiny, there are Statutory Instruments to prevent its misuse. Allows passing of laws quicker in emergency cases E.g. foot and mouth disease 2007. 
Forms of these:
Statutory Instruments (UK/Scottish regulations), Local authority BY-Laws, Actus of Sederunt - Regulate court of session and sheriffs court and Acts of adjournal - regulate high courts
28
Q

What is Arbitration?

A

A commercial, cost effective and confidential method of resolving disputes. With the Arbitration (Scotland) Act (2010), Scotland has a modern, Innovative Arbitration regime

29
Q

What does Statutory Interpretation mean?

A

Finding out true meaning of a statute, especially when words have many meanings and uncertain due their scope/application and there is room for interpretation.
Two Approaches
1) Narrow, Strict, Literal approach (doesn’t happen in Civil legal system)
2) Wide, Purposive approach

30
Q

What does Judicial Precedent mean?

A

Follow previous judgements by higher courts, court decision either follow existing legal principles, extend or lay down rules. (Those principles are created by judges to explain their decision in a case)

31
Q

What does Ratio Decidendi mean? And how to find it?

A

The rule of law on which judicial decision is based. Essentially the reason for the decision. (Court has to follow previous decisions made by a court)

To find it: look analytically to find the relevant facts of the case and what was the decision, identify the precise legal rules applied. This analysis produces the RATIO DECIDENDI, not the actual decision.

Note; these things need to be present in order to claim to happen, this reasoning process is ratio decidendi.
The reasons necessary to support the actual decisions in real cases are applied, In cases that are distinguishable from that case on their essential facts. Only the ratio is binding on later ‘in point’ cases. Ratio is matter of interpretation itself, sometimes hard to identify

32
Q

What is meant by Obiter Dicta

A

Obiter dictum is Latin phrase meaning “by the way”, a remark in a judgement that is “said in passing”. NOT PART OF RATIO Nor binding, but can be persuasive.

Technically, all the other reasoning they come up with but not the heart of the matter.

33
Q

What does Stare decisis mean?

A

Courts must stand by what has already been decided. HIERARCHY OF COURTS

34
Q

Describe institutional writers

A

Influenced by Civil/Roman Law traditions, Codifications/Statement of law (if not contradicted by legislation taken by courts as ascertaining law.
Their authority depends by the recognition by the courts and whose writing. May be relatively influential despite of the age. Usually weight given in Inner House decisions.
E.g. Lord Stair’s: The institutions of the law of Scotland 1681. & Baron Hume’s Commentaries on the Law of Scotland Respecting Crimes (1797).
Foreign influential examples: Domat, traite des loix: les loix civiles dans leur ordre naturel 1689 and Pothier, Traite des obligations 1761.

35
Q

Institutional Writing case:

Drew v Drew 1870

A

Not sure: two brothers made trustees under their father’s trust-disposition. After fathers passing, they got into a fight due to owned money and withheld trustees due to their debts.

36
Q

What does Custom mean?

A

Course of conduct over time gaining weight of a law. Unlikely to create a law, but one of the foundations of law.
MUST BE PROVEN AND CONDITIONS FULFILLED.
Exception to, yet consistent with existing law, definite, certain and regularly practised. Fair and reasonable, accepted and followed for a long period of time. Can lose authority by contrary usage

37
Q

What does Equity mean?

A

Remedy in line with natural justice, court grands remedy where none exists. Equity means fairness, reasonableness. In Scotland the equitable jurisdiction of the High Court of Justiciary or the Inner House of the Court of Session to give remedy where none would otherwise be available. To soften/harden the law when under such unforeseen circumstances that see the law doesn’t exist or would be unreasonable.

38
Q

What does Nobile Officium of the Court of Session and High Court of Justiciary mean?

A

Scots law: The equitable discretion of the Court of Sessions to afford relief in cases where none is possible at law

39
Q

Equity case: Ferguson v Petitioner 1965

A

An electoral registration officer wrongly deleted the names of prospective names from the draft electoral register. There were no common law or statutory remedy available which would allow the names to be placed back to the register. Therefore, in the interests of justness and fairness, the court invoked the nobile officium and ordered the names to be reinstated

40
Q

Equity case: Khaliq v HM Advocate 1984

A

HC may declare certain acts as to be criminal in nature when previously they were not. This is known as the Declaratory power or the HCJ. In Khaliq, a shop keeper was prosecuted for selling glue-sniffing kits to the kids. The named offence was unknown to Scots criminal law, but the HCJ decided that the behaviour was exceptionally harmful and should be criminalised. This is hardly used nowadays, but gives flexibility in extreme cases.

41
Q

What does retroactively illegal mean?

A

Something illegal before it is illegal on the paper.
Definition of retroactive law: A law that operates to make criminal or punishable or in any way expressly affects an act done prior to the passing of the law

42
Q

What are the informal sources of law?

A

International Obligations not implemented into national legislation. e.g. Human rights treaties,
Administrative Guidance such as Codes of practice, highway code and professional codes of practice - press complaints commission. These are enforced though indirect means, usually used as interpretation guide.

43
Q

Active Question: What do we mean by the terms ‘common law’ and ‘civil law’? What kind of legal system does Scotland have?

A

Work it out

44
Q

What are the main sources of law in Scotland?

A

Name and describe.

45
Q

Describe Legislation

A

Roman/Civil Law. Any laws passed in EU, statutes - Acts of Parliament, Scottish Acts from Scottish parliament
Legal rules, encyclopaedic approach with reasoning. Originating from ancient Rome. Includes Delicated legislation

REMEMBER ROYAL PROVOCATIVE - Her Majesty has the power to create or revoke laws, Ceremonial power that is underlying

46
Q

What is Common Law

A

Case law - precedent, principle that courts follow the ruling from previous legal cases, either binding or persuasive for a court or tribunal when deciding subsequent cases with similar issues or facts. More flexible and open to interpretation.

47
Q

What do we mean by the term judicial precedent? What are the advantages and disadvantages of the precedent system?

A

Work it out.

Business Law (13 decks)

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