1709005
Description
Mind Map by Malin Johansen, updated more than 1 year ago
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Created by Malin Johansen
over 10 years ago
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FORMAL/ PRIMARY SOURCES OF LAW - SCOTTISH LEGAL SYSTEM
- Enacted law - legislation
- Statutory interpretation
- Interpretation v application
- Problems in interpreting
- Ambiguity
- Semantic
- Syntactic
- Semantic
- Words change
meaning over
time
- Drafting difficulties
- Time pressure
- Bills made to pass Parliament
- Complex ideas in a simple form
- Time pressure
- Ambiguity
- What does the cout do?
- Find the intention of Parliament
- Pros
- Constitutional role
- Objectivily and certainty
- Constitutional role
- Cons
- Does Parliament have an intention?
- Focus on the draftsman
- Does Parliament have an intention?
- Pros
- Find the intention of Parliament
- 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"
- 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?
- 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"
- 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"
- Dictionaries
- Presumptions that applies
- Favour of the accused (freediom)
- Hobson v Gledhill and Fisher v Bell, but not in Chief
Constable against Lees
- Hobson v Gledhill and Fisher v Bell, but not in Chief
Constable against Lees
- Favour of the accused (freediom)
- Purposive approach
- Whats the purpose of the legislation?
- Whats the purpose of the legislation?
- Words change meaning over time
- may lead to wider or narrower
interpretation
- Some examlpes
- "Rules"
- Principles
- Interpretation v application
- Legislation
- Statutory interpretation
- Unenacted law - common law
- Definition of common law
- The legal
tradition based
on English law
- Cf. Civil law
- Cf. Civil law
- The legal
tradition based
on Roman law
- Synonyme for unenacted law
- The legal
tradition based
on English law
- 2. Institutional writings
- Primary or secondary source?
- 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
- 1. Higher court binds lower courts
- Special issues
- EU law
- ECHR law
- EU law
- Civil Courts
- SCUK and HL
- Court of session
- Sheriff court
- SCUK and HL
- Criminal courts
- Key principles:
- 2. Ratio decidendi
- 1. Stare decisis
- Why a "primary" source?
- The declaratory theory
- Sometimes the judges
DO make the law
- Interpretation
- Where there is no
legislation
- Interpretation
- The declaratory theory
- Key ideas
- 3. Custom
- Definition of common law
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