Sources of Law Overview

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• However, it may be a source of "bad law" if a strict application of precedent leads to unjust or outdated legal principles.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.