Sources of Law Overview

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Questions and Answers

What distinguishes Civil Law legal systems from Common Law systems?

Civil Law systems utilize judicial precedents as primary sources of law.

Common Law systems prioritize written laws over judicial precedent.

Common Law systems are primarily based on codified statutes.

Civil Law systems rely heavily on legislation. (correct)

What is a defining feature of Scotland's legal system post-1707?

It has evolved into a mixed or hybrid legal system. (correct)

It is entirely based on Civil Law principles.

It follows a solely written constitutional framework.

It operates without any influence from Common Law.

Which of the following is NOT considered a formal source of law?

Public Opinion (correct)

Institutional Writers

Legislation

Judicial Precedent/Case Law

What is the significance of 'Equity' in formal sources of law?

It provides principles for justice based on fairness. Signup and view all the answers

What is unique about the legal system of the UK and Scotland concerning constitutional law?

They operate without any written constitution. Signup and view all the answers

What is the highest court for Scotland in civil cases?

UK Supreme Court Signup and view all the answers

Which court is the highest for criminal cases in Scotland?

High Court of Justiciary Signup and view all the answers

What is an advantage of judicial precedent?

Ensures fairness and uniformity in legal application Signup and view all the answers

What is a disadvantage of judicial precedent?

Promotes the retention of outdated laws Signup and view all the answers

Which case involved the High Court using its declaratory power to find conduct criminal?

Khaliq v HMA Signup and view all the answers

What principle does stare decisis uphold in the judicial system?

Similar cases should be treated similarly Signup and view all the answers

What issue did the landmark case Donoghue v Stevenson address?

Manufacturers’ liability for defective products Signup and view all the answers

What is one critique of judges in the context of judicial precedent?

They may not represent the diverse society they serve Signup and view all the answers

What legal principle was established in the case of Donoghue v Stevenson?

Manufacturers owe a duty of care to end-users. Signup and view all the answers

What does 'ratio decidendi' refer to in legal terms?

The legal principle that must be followed in future cases. Signup and view all the answers

Which of the following statements is true about the rules of precedent?

A judge may choose not to follow a decision from a lower court. Signup and view all the answers

What is the meaning of 'obiter dicta' in a legal case?

Statements made that are important but not legally binding. Signup and view all the answers

How does the approach of common law differ from civil law?

Common law evolves through case decisions and precedents. Signup and view all the answers

Which of the following is true regarding persuasive precedent?

It influences decisions but is not compulsory. Signup and view all the answers

In the context of Donoghue v Stevenson, what does the 'neighbour principle' refer to?

The concept that one must take reasonable care to avoid acts that could foreseeably harm others. Signup and view all the answers

Which source of law forms a major part of the legal system in Scotland?

Judicial precedent and legislation. Signup and view all the answers

What is the primary source of law enacted by a law-making body?

Legislation Signup and view all the answers

Which body primarily enacts legislation in the UK?

The UK Parliament Signup and view all the answers

What was the effective date and time of the smoking ban in public places in Scotland?

26 March 2006 at 6.00 am Signup and view all the answers

What process is followed to transform a Bill into an Act in the UK Parliament?

The Bill is read three times and then receives Royal Assent. Signup and view all the answers

Which of the following is considered the most authoritative source of law in the UK?

Legislation from the UK Parliament Signup and view all the answers

What happens after Royal Assent is granted to a Bill in the UK?

The Bill becomes an Act of legislation. Signup and view all the answers

What is the second most important source of law after legislation in the UK?

Judicial Precedent Signup and view all the answers

What is one key consideration when determining if a UK Act applies to Scotland?

The 'extent' section of the UK Act. Signup and view all the answers

Which statement about Scottish law is true?

Scotland follows a mixed legal system. Signup and view all the answers

What principle ensures that lower courts must follow higher court decisions?

Stare decisis Signup and view all the answers

In the event of a conflict between legislation and judicial precedent, which has the higher authority?

Legislation Signup and view all the answers

Can a person be charged with murder in Scotland even if there is no Act of Parliament explicitly stating it?

Yes, through common law precedents. Signup and view all the answers

What is the main function of the High Court of Justiciary in Scotland?

To define and interpret case law. Signup and view all the answers

Study Notes

Sources of Law

Sources of law determine how the law is created and where it is found.
There are two major legal systems: Civil Law and Common Law.
Scotland is a "mixed/hybrid" legal system, combining elements of both Civil Law and Common Law.
The UK is a Common Law system.

Formal Sources of Law

Formal sources provide principles and rules that courts must apply to resolve legal issues.
The formal sources of law are:
- Legislation - Laws enacted by a law-making body.
  - UK Parliament (Westminster) - Applies to Scotland since the 1707 Treaty of Union.
  - Scottish Parliament (Holyrood) - Established in 1999.
- Judicial Precedent/Case Law - Prior court decisions which guide lower courts' decisions.
- Institutional Writers - Early legal scholars and their works.
- Custom - Established practices that become legally binding over time.
- Equity - Flexibility to modify or supplement the strict application of existing laws.
- Other Sources - International law, European Union law, and human rights law.

Legislation - UK

UK Parliament is composed of the House of Commons, House of Lords, and the King.
UK Parliament makes primary legislation (Acts or Statutes), the most authoritative source of law within the UK.
UK legislation is enacted through a process that involves multiple readings and Royal Assent from the King.
UK Acts may apply to Scotland or may not, depending on the "extent" section of the Act.
Secondary legislation (Statutory Instruments) is also enacted by UK government bodies.

Legislation - Scotland

The Scottish Parliament is the primary source of legislation specifically for Scotland.
Scottish legislation is passed through a process similar to that of the UK Parliament.

Judicial Precedent

Judicial precedent is the second most important source of law, used when legislation is absent.
The principle of "stare decisis" (the decision stands) dictates that lower courts must follow decisions of higher courts.
The highest court in Scotland for civil cases is the UK Supreme Court; for criminal cases, it is the High Court of Justiciary.
Judicial precedent fosters legal certainty, fairness, and predictable outcomes.
However, it may be a source of "bad law" if a strict application of precedent leads to unjust or outdated legal principles.

Judicial Precedent - Rules of Precedent

Lower courts must follow decisions of the higher courts.
Higher courts can overrule lower court decisions.
Courts can "distinguish" a precedent if the facts of a case are not similar to the precedent.
Courts may cite "obiter dicta" (extra comments) from previous cases, which may be persuasive in later cases, but are not binding.

Civil Law vs. Common Law

Civil Law Systems are based on general principles and use deductive reasoning (general to specific).
Common Law Systems are based on the resolution of specific legal issues in individual cases, building a body of precedent.

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Description

Explore the fundamental concepts of law sources including formal sources like legislation, judicial precedent, and custom. Understand the distinctions between Civil Law, Common Law, and Scotland's hybrid system. This quiz will test your knowledge on how laws are made and applied.