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legal system lecture 29/9/23 - Coggle Diagram
legal system lecture 29/9/23
other mixed legal systems
South Africa
dutch colony 1652-1795
roman - dutch law
british colony 1795 - 1910
within common law
union (later republic) of south africa
Louisiana
french colony 1699-1762
roman-dutch law
spanish colony 1762-1800
louisiana purchase 1803 - brought with common law
UK As a Legal System
england, wales, northern ireland follow common law
Scotland calls on its civil law roots for sources of private law + when the law is unclear or is gapped
no written code or constitution but share principles of adherance to the european convention of human rights against which laws are measured.
while in the EU adherence to their laws made was required but not anymore since we left EU
the UK share legal content for social, fiscal and instrumental reasons
uk parliament has supremacy on matters that are reserved
Holyrood legislates on devolved matters + can change pre-devolution UK legislation on devolved matters + legislate on non-reserved matters
Case Law
case law from English appellate courts
not binding
but can be persuasive
case law from UK supreme court in Scottish cases
is binding
in Scotland
case law from UK supreme court on human rights issues
is
binding
in Scotland
case law interpreting UK legislation that is also applicable in Scotland
is influential
case law development
early jottings of judges = used by institutional writers such as stair to exemplify their analysis of law
Scotland's legal system - History
earliest scots property law came from Anglo Norman feudal tenure
David 1 invited Anglo-Norman Knights to take lands north of the border in the 12th century
in medival period the central decisions were taken at a local level in feudal courts(regality or barony courts), burgh courts, ecclesiastical courts or by royal sheriffs
early sources of scots customary law = Regiam Majestatem 1548
able to raise plead cases in court
influence of case law in pleading
benefitting from the "auld alliance"
scots studying at french universitys
enduring influence of civil law
benefitting from union (uk + eu)
union of crowns 1603 + parliaments 1707
preservation of scots univeristies, courts and laws
harmonisation of law in europe
influences
loyal and national custom
royal houses
feudal system of land allocation and related rights over individuals with the crown at the pinnicle
religious bodies and ecclesiastical courts
local courts to deal with local matters
struggles of statehood v equal trade
Emergent Elements of Scotland Legal System
lords of council and session
national courts - 1530 first centralised national court was established
the court of session
half of the judges were secular and half were members of the clergy
court of session = 1532
shared judiciary in the main across these courts
high court of justiciary 1672
local justice remained
regality courts = long gone
sheriff courts = survived but reformed
burgh courts = vestiges in justice of the peace courts