Flashcards in Sources of Law Deck (47)
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1
Why does law exist?
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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National Legal systems
Scotland, Germany... Note federal/quasi-federal nations
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Regional Legal systems
Geographical - EU, Council of Europe
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International Legal systems
UN, WTO
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The Laws of Great Britain
1. England & Wales
2. Scotland
3. Northern Ireland
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Legal Subject matters
Contract, Family, Criminal, Property, Company, Delict, Health & Safety, Employment, Commercial etc.
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Why is Scottish Legal system mixed/hybrid legal system? What is it a mix of?
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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Tripartite Legal System
1) Executive - Government
2) Legislature - Law making body: Looks at the laws
3) Judiciary - Court system
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Describe the function of Executive in Tripartite Legal system
Government, Decides what new laws to put forward, what new laws to create and applies the law
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Describe the function of Legislature in Tripartite Legal system
Law making body (Legislature), looks at the laws, passes the laws, comes up with statutes, HOUSE OF COMMONS AND LORD
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Describe the function of Judiciary in Tripartite Legal System
Judiciary is the court system, interprets the law
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What is the nature of the law?
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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What is Criminal Law
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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What is Civil law
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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What is the difference between Civil Law and Civil Law system?
Civil Law = Private law (action type)
Civil Law system = Roman Law system, legal rules and principles
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Where can you find law?
Legislation, court/tribunal decision ('case law'), legal text books, journal articles, electronic databases such as Westlaw
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List 5 - Sources of Law
1) Legislation (Roman law/Civil law)
2) Common law / case law / Precedent
3) Institutional Writings
4) Custom
5) Equity
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What is the Hierarchy?
1) EU legislation
2)UK Legislation
3) Scottish Legislation
Remember suspended if in conflict with higher law
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European Legislation (Not too important)
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
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Case Law of the Court of Justice of the EU "ECJ"
Influential reports, statements issues by the comission
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European court of justice
EU Enforcement procedure, actions brought by European Commission. Principles: European Union Law Supersedes Domestic Law
Direct applicability
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European Court of Human rights
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.
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Different types of acts
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
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How Does a Bill become an Act in Westminster? (Likely hood for multiple choice)
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
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How does a Bill become an act in Scotland?
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.
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What are Private Bills and what is Private members' legislation?
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
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What is Delegated Legislation and what are the forms?
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
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What is Arbitration?
A commercial, cost effective and confidential method of resolving disputes. With the Arbitration (Scotland) Act (2010), Scotland has a modern, Innovative Arbitration regime
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What does Statutory Interpretation mean?
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
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