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FORMAL/ PRIMARY SOURCES OF LAW - SCOTTISH LEGAL SYSTEM

Malin Johansen English

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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

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Mind Map on FORMAL/ PRIMARY SOURCES OF LAW - SCOTTISH LEGAL SYSTEM, created by Malin Johansen on 26/11/2014.
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Malin Johansen
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