Legal System Exam Notes

Part I: Introduction & Background Information

What is a Legal System?

Defined as: A Set of principles, ideas or statements belonging to some department of
knowledge or belief; a department of knowledge or belief considered as an
organized whole; a connected and regularly arranged scheme of the whole of
some subject; a comprehensive body of doctrines, conclusions, speculations or
these

The Legal System…

- Is something systematic
- Hart  “Law is an affair of rules”
o There are different types of rules
 Social, moral, and legal rules

The Union of Primary and Secondary Rules = The Legal System

- You need the interaction between these two types of rules for it to be law

Scottish Legal System

- Scottish system is a mixed system
o Civil law  Roman
 Based upon legal deduction
 Rules deduced though general principles originally expounded
by scholars
o Common law  English Law
 Founded upon legal induction
 The formation of legal principles through court decisions
- Scottish legal system has a rich heritage
o Influence by feudal law from England
o Cannon law from the Roman Catholic church
o Roman Law
o English Law
o European Community Law
Public Law vs Private Law
- Public law
o Legal rules which relate specifically to the state
 Examples
 Constitutional law
 Administrative law
 - Private Law
o Non-state related law

English Law Influence

- Act of Union 1707
o Partnership of political expediency
o Scottish parliament was abolished and a new Parliament of Great Britain was
established
- Scotland was allowed to keep its own legal system
o But any Scottish law could be amended by the British Parliament
- English commercial law had a huge influence on Scottish Commercial law

Historical Background
Civil Law System
- Roman Law
o Early lawyers were taught to turn to Roman law, as it was the ultimate
expression of perfection in the law
- Roman Law became embedded in many law codes around the world
- Medieval period
o Legal nationalism begins to seep into courts
 New notion from the humanist movement that Roman law should be
criticised, and local law should have more of a consideration
- Characteristics of the Civil System
o Rules of Adjudication
 It is an inquisitorial process
 There is a professional judiciary that study to be a judge right out of
school
o Rules of Recognition
 Laid out in a code
o Rules of Change
 Statutory Additions
 Interpretation and commentary

Common Law System

- Common law
o Our law is our own common law, centralised system
- Historical development
o Developed out of the original write providing forms of action
o The law will take shape through the decisions of the court
 Case law is extremely important
- The judge acts a referee
o There is no judicial profession
- Rules of Recognition
o Legislation without codification
Mixed Legal Systems
- Historical origins
o South Africa
o Louisiana
o Scotland
- Scottish System
o Took ideas from England
o The Medieval alliance between Scotland and France instilled the Civil code in
law

The European Union

European Convention on Human Rights
- Designed to limit action of governments  Declaring that they have certain
obligations
o The UK signed onto
 Right to life
 No torture/inhumane treatment
 No slavery
 Right to liberty and security of a person
 Fair and public hearing
 No one shall be guilty of an offence which is no tone under national or
international law
 Right to respect for private and family life, home and correspondence
 Freedom of thought conscience/ religion
 Freedom of expression
 Freedom of peaceful assembly
 Right to marry
 Remedy for violated rights
 Secured rights without discrimination
 Peaceful enjoyment of possessions
 Right to education
 Free elections
- The Right of Individual petition
o Allows individuals claiming that they have been treated in a manner contrary
to the ECHR to bring a claim

Campbell & Cosans

- Corporal punishment in schools
o Parents said this was infringing their rights (contrary to article 3)
- They exhausted all option in the UK and took it to an international court

Starrs v Ruxton
- Case concerned with temporary sheriffs
o Temporary sheriffs ceased to be appointed

Cadder v HMA
- Person detained by police for quing
 o Had an immediate right to legal advice

Scottish Human Rights Commission

- Scottish Commission for Human Rights Act 2006

o Promote human rights
o Encourage best practice