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
