Scots Law Notes Scottish Legal System Notes
These notes have been personally made on my own and they are highly efficient and easy to read. They cover the whole of the Scottish Legal System module. They explain all the concepts in a clear manner and also highlight all the important cases to remember with their facts and principles....
The following is a more accessible plain text extract of the PDF sample above, taken from our Scottish Legal System Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Unenacted Law
Institutional Writings
Generally legal literature is a secondary source of law but some texts are treated as authoritative and as a primary source
the approach of Institutional writers can be contradicted by legislation, or departed form by the courts.
The acceptance of the Institutional writers as a source of law is dependent on recognition by the courts (example of judge-made law)
Although institutional writings were of extreme importance in the past, it would be unusual for modern courts to justify its decision by sole reference to it
Today, their role is to supply a moral and intellectual anchor for the law, providing stability while not excluding change
Institutional writers:
Civil law
Stair
Bankton
Erskine
Bell
Criminal law
Mackenzie
Hume
Alison
Judicial Precedents and Case Law:
Ratio decidendi:
The reason for deciding, rational, principle and cause the judge had in mind to tip case in favour of one party.
This reason becomes a rule of law, which can bind later cases to it.
A difference between case law rules and legislation is that the words used in case law are not as precise as legislation.
Stare decisis:
Judges stand by what has been decided before and do not disturb or unsettle what has been decided before
Judges to some degree consider themselves bound to what previous judges decreed
The binding force of cases depends on the place of that court in the court hierarchy
Further down the hierarchy, the more judges are bound to court decisions on cases.
Court Hierarchy
Precedence can be thought about vertically as a hierarchy
Appellant hierarchy: cases from higher courts bind cases in lower courts because higher courts are used for appeal which give them more power to overrule decisions made by lower courts.
The horizontal relations in this system: what one court decides mostly binds it for future cases in that specific court
“strength of numbers” principle: often, the same court can overrule one of its past decisions if it assembles a larger number of judges on the bench
Example: Inner house of Court of Sessions- when there are 3 judges, past rulings are bindings, but when it wants to overrule, it assembles 5 or 7 judges who debate and give a more authoritative decision
When thinking about precedent, it is important to also consider jurisdictions of England and Whales, and Northern Ireland
Especially because Scotland is a mixed legal system, so systems of precedent and common law seem to be permeable to other jurisdictions (English, Northern Irish and Australian courts)
Case Law as Reasoned Tradition
Case law and precedent is always looking to the past for decisions, does this mean that law doesn’t change or progress?
No, this is justified because precedent is a reasoned system of tradition
Precedent as Unenacted and Unwritten Law
Judicial decisions are unwritten law as there is no definitive form of words in a case which contain the rule
This is unlike legislation, where the rule has no meaning unless through the words in which it is expressed
Judges’ statements cannot be extracted and used as a rule of law due to potential lack of clarity, long descriptions, no concise divisions of thoughts, etc.
Therefore, rules and presumptions of interpretations cannot be applied to judge’s statements like they are applied in legislation
Instead, case law rule is read in the context of the specific case because case law is grounded in real facts
But in some cases, rules are not base upon proven facts
But this doesn’t matter because facts are assumed based on pleas of relevancy
Parties may agree on facts of the case, so the rule of law is derived from these facts
It is the judge’s reasoning and rational that is the rule derived from the case (ratio decidendi)
What judges decide in fact of a specific case is not legally binding, but what they decide in law is
Case law rules bind in degrees by analogy but legislation either binds fully or not
Precedent forms “chains” of cases, where earlier cases mean what later judges interpret them as
The current meaning of a case is what the latest judge interprets it as
Cases are authoritative by degree based on which court it was held in due to the appellate hierarchy
Even though there is no appellate link between the Outer House and the Sheriff Court, decisions in the Outer House tend to be more authoritative than those in the Sheriff Court
Sometimes cases produce general principles not rules
Law Reports
In the past, law reporting is a matter of private enterprise not the state
But now the state is taking more of a responsibility to report cases and make them public
Scottish Council of Law Reporting
publish official Session Cases reports
Judges of these cases have a chance to check the final definitive wording fo their speeches before they are reported
Contain statement of counsel’s arguments to see the exact point of law parties were arguing over, which makes the ratio more accurate
See all cases that counsels cited
Scots Law Times (SLT): commercially produced law reports
Why precedents create rules
Equality before the law: justice requires that similar cases be treated and decided alike
Efficiency
Decentralisation of decision making
Hierarchy of Civil Courts and Stare Decisis
The Supreme Court of the United Kingdom
UKSC was previously known as the House of Lords, but it was set up by the Constitutional Reform Act 2005
Horizontally: UKSC generally considers itself to be bound by its past decisions
House of Lord’s Practice Statement (Judicial Precedent) 1966 changed view from the strictly binding precedent of SC to giving it the ability of overruling
There are cases where binding to past decisions could lead to injustice as well as inhibit the proper development of the law
But there are concerns with overruling past decisions:
This is because of retrospectively disturbing the contracts, settlements of property and fiscal arrangements
People have deliberately planned their affairs on the assumption...
Buy the full version of these notes or essay plans and more in our Scottish Legal System Notes.
These notes have been personally made on my own and they are highly efficient and easy to read. They cover the whole of the Scottish Legal System module. They explain all the concepts in a clear manner and also highlight all the important cases to remember with their facts and principles....
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