Sources of Scots Law Flashcards
what is a crime?
‘a situation forbidden by law under threat of punishment’
what is positive conduct?
the defendant must be proved to have committed a guilty act whilst having a guilty state of mind
what is a conduct which has a result
the action might not have been criminal but the result is
what is negative conduct (omissions)
the legal duty to act but fail to do so
what is negative conduct which has a result
failing to carry out a loyal duty which leads to a result
what is a ‘state of affiars’
when an individual is charged of being in a particular state of affairs or for being in a particular situation
what are the five criminal situations contemplated in this course
positive conduct conduct which has a result negative conduct (omissions) negative conduct which has a result a state of affairs
what are the reasons for a particular scenario being a crime
because they involve harm, offence to others , contrary to morality and they harm the offender himself
what are the four main sources of scots law
common law, legislation, human rights and legal writings
what is ‘common law’
the term used to describe the rules of criminal law which are traditional or judge-made
what does it mean by a system of precedent?
a rule or principle created by an authority within the legal system. Common law is founded as a collection of precedents established in previous legal cases.
what are the advantages of implementing a ‘common law’ legal system?
Flexibility. Allows the law to develop parallel to the evolving of society
what is the declaratory power of the High Court
The high court historically had the power to create new crimes in a quasi-legislative fashion. However, in modern day terms this would be on the contrary to the principles of clarity, accessibility and non-retro-activity expressed in the European Convention on Human Rights
why is legislation a source of law
it contains the rules and regulations of our society and is needed to prosecute those who have done wrong
why is human rights a particularly important source of law
following the enactment of the Human Rights Act 1998, it comprises most of the rights and freedoms that human beings are entitled to
