FORMAL/ PRIMARY SOURCES OF LAW - SCOTTISH LEGAL SYSTEM

FORMAL/ PRIMARY SOURCES OF LAW - SCOTTISH LEGAL SYSTEM

1. Enacted law - legislation

   • Statutory interpretation
     • Interpretation v application
     • Problems in interpreting
       • Ambiguity
         • Semantic
         • Syntactic
       • Words change meaning over time
       • Drafting difficulties
         • Time pressure
         • Bills made to pass Parliament
         • Complex ideas in a simple form
     • What does the cout do?
       • Find the intention of Parliament
         • Pros
           • Constitutional role
           • Objectivily and certainty
         • Cons
           • Does Parliament have an intention?
           • Focus on the draftsman
     • Key ideas (based on the exaples)
       • Words change meaning over time - may lead to wider or narrower interpretation
         • Fitzpatrick v Sterling Housing: "family" and "spouse"
       • Ordinary words shall be given their gramatically and ordinary meaning
         • Holliday v Henry: car "on" the road if roller skates in between the car and the road?
       • Technical words - technical meaning
         • Fisher v Bell: flick-knife in the window "offer"? Technical (juridical) meaning of "offer"
       • External aids to determine the meaning of the words
         • Dictionaries
         • Litterature
         • Chief Constable v Lees: looked at the dicitionary and Sheakspare when interpreting the word "accident"
       • Presumptions that applies
         • Favour of the accused (freediom)
           • Hobson v Gledhill and Fisher v Bell, but not in Chief Constable against Lees
       • Purposive approach
         • Whats the purpose of the legislation?
     • Some examlpes
     • "Rules"
     • Principles
   • Legislation

2. Unenacted law - common law

   • Definition of common law
     • The legal tradition based on English law
       • Cf. Civil law
     • The legal tradition based on Roman law
     • Synonyme for unenacted law
   • 2. Institutional writings
     • Primary or secondary source?
   • 1. Precedent/case law
     • Key ideas
     • Why?
     • Importance of law reporting
     • TWO leading principles
       • 1. Stare decisis
         • Key principles:
           • 1. Higher court binds lower courts
           • 2. Lower courts do not bind higher courts
           • 3. Courts from one jurisdiction does not bind courts from another jurisdiction
         • Special issues
           • EU law
           • ECHR law
         • Civil Courts
           • SCUK and HL
           • Court of session
           • Sheriff court
         • Criminal courts
       • 2. Ratio decidendi
     • Why a "primary" source?
       • The declaratory theory
       • Sometimes the judges DO make the law
         • Interpretation
         • Where there is no legislation
   • 3. Custom