The Many Conceptions of a Legal System
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2 Legal System of Scotland
Legal System of 2 Scotland Yvonne McLaren and Josephine Bisacre This chapter discusses the formal sources of Scots law – answering the question of where the law gets its binding authority from. The chapter considers the role played by human rights in the Scottish legal system and their importance both for individuals and for businesses. While most com- mercial contracts are fulfilled and do not end up in court, some do, and sometimes businesses are sued for negligence, and they may also fall foul of the criminal law. Therefore the latter part of the chapter discusses the civil and criminal courts of Scotland and the personnel that work in the justice system. The Scottish legal system is also set in its UK and European context, and the chapter links closely with Chapters 3 and 4, where two rather dif- ferent legal systems – those in Dubai and Malaysia – are explored, in order to provide some international comparisons. The formal sources of Scots Law: from where does the law derive its authority? What is the law and why should we obey it? These are important ques- tions. Rules come in many different guises. There are legal rules and other rules that may appear similar in that they invoke a sense of obligation, such as religious rules, ethical or moral rules, and social rules. People live by religious or moral codes and consider themselves bound by them. People honour social engagements because personal relationships depend on this. However, legal rules are different in that the authority of the state is behind them and if they are not honoured, ultimately the state will step in 20 Commercial Law in a Global Context and enforce them, in the form of civil remedies such as damages, or state- sanctioned punishment for breach of the criminal law. -
Aberdeen Student Law Review
Aberdeen Student Law Review With thanks to our sponsors Stronachs LLP July 2011 Volume 2 www.abdn.ac.uk/law/aslr THE EDITORIAL BOARD 2010 - 2011 Managing Editor Leanne Bain Editors Alice Cannon Ross Douglas Emma Fraser Stuart Lee Bruce Mangeon Fairweather Charlotte Taylor Ryan T. Whelan Jennifer White FOREWORD BY THE HON . LORD WOOLMAN SENATOR OF THE COLLEGE OF JUSTICE Has the ASLR already reached its second volume? I am delighted that the brio of those involved in launching the project has been sustained. That is evident from the table of contents for the new volume. The topics range across legal history, oil and gas law and the law of evidence. In my view, volume two confirms that the ASLR is continuing to make a significant contribution to legal learning in Scotland. Stephen Woolman July 2011 INTRODUCTION TO VOLUME TWO In 1987 Professor Erwin N Griswold, former Dean of Harvard Law School, gave an insight into the history of the Harvard Law Review, the oldest student-led law review in the world. He acknowledged: Some people are concerned that a major legal periodical in the United States is edited and managed by students. It is an unusual situation, but it started that way, and it developed mightily from its own strength.1 I firmly believe in the strength of the student law review, and it is this belief that has shaped the endeavours of the editorial team during the past year The second year of a professional publication can be as difficult as the first, and this year has certainly not been without challenge. -
(2017) Clarifying the Law on Assisted Suicide? Ross V Lord Advocate
Chalmers, J. (2017) Clarifying the law on assisted suicide? Ross v Lord Advocate. Edinburgh Law Review, 21(1), pp. 93-98. (doi:10.3366/elr.2017.0391) This is the author’s final accepted version. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. http://eprints.gla.ac.uk/130144/ Deposited on: 17 October 2016 Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk This article has been accepted for publication by Edinburgh University Press in the Edinburgh Law Review, and is expected to appear in the January 2017 issue. The Review is available online at http://www.euppublishing.com/loi/elr. Clarifying the Law on Assisted Suicide? Ross v Lord Advocate Gordon Ross, who died in January 2016,1 was a retired television producer who prior to his death resided in a care home, living with diabetes, heart problems, Parkinson’s disease and peripheral neuropathy.2 In Ross v Lord Advocate, Lord Carloway outlined the dilemma which Mr Ross faced in the following terms:3 He anticipates that there will come a time when he will not wish to continue living, as he will find his infirmity and consequent dependence on others intolerable. He would require assistance to commit suicide because of his physical state. He is apprehensive that anyone who assisted him would be liable to prosecution. He considers that he may require to take action to end his life himself, sooner than he would otherwise wish to, in order to avoid living on in an undignified and distressing condition. -
For Scotland: a Hollywood Tagline, but a Holyrood Prerogative
"FREEDOM!"' FOR SCOTLAND: A HOLLYWOOD TAGLINE, BUT A HOLYROOD PREROGATIVE Andrew Murdison* TABLE OF CONTENTS I. INTRODUCTION ......................................... 444 II. SCOTFISH LEGAL AND CONSTITUTIONAL HISTORY .............. 445 A. Early Influences and Development ....................... 445 B. The Union with EnglandAct of 1707 ..................... 453 III. RECENT CONSTITUTIONAL REFORM ......................... 462 A. The ScotlandAct of 1998 .............................. 462 B. The U.K. Supreme Court ............................... 465 C. The European Community .............................. 467 IV. ANALYSIS: PATHS TO INDEPENDENCE ......................... 468 V . CONCLUSION ........................................... 472 * J.D., University of Georgia School of Law, 2010; B.A.H., Queen's University, Kingston, Ontario, 2007. BRAVEHEART (Paramount Pictures 1995). 443 444 GA. J. INT'L & COMP. L. [Vol. 38:443 I. INTRODUCTION Scotland is in a relatively new position within the United Kingdom (U.K.) and the global community. Having spent a millennium or more as a sovereign nation-with its own culture, economy, laws, and even monarchy-Scotland joined with England (and Wales) in creating the United Kingdom of Great Britain by ratifying the Articles of Union with the passage of the Union with England Act of 1707 (the Union).' Within a few years of the Union, however, Scots fought to restore their independence.2 For many, the fight continues today. With the U.K.'s massive constitutional overhaul of the past two decades,' including the re-establishment of the Scottish Parliament and the devolution to Scotland of some aspects of national governance and sovereignty (under the Scotland Act of 1998),5 the issue of independence has gained renewed significance.' In the 2007 Scottish parliamentary elections, for instance the Scottish National Party (SNP) made an incredible showing; a "central plank" of the SNP platform is a referendum for independence.7 Parallel developments across the U.K. -
Robert P Merges What Kind of Rights Are Intellectual Property Rights?
Robert P Merges What Kind of Rights Are Intellectual Property Rights? Forthcoming in Rochelle C Dreyfuss & Justine Pila (eds), The Oxford Handbook of Intellectual Property Law © RP Merges 2017 Table of Contents 1. Intellectual Property as a Right 1.1 Intellectual Property Rights Are Property Rights 1.2 The Basic Features of Intellectual Property as Property 1.2.1 The Right to Control Uses 1.2.2 The Right to Transfer 1.2.3 The Special Case of Waiver 1.3 Limitations on Intellectual Property Rights 2. What Kind of Rights? Hohfeld and Intellectual Property 2.1 Claim Right/Duty 2.2 Privilege/No Claim 2.3 Power/Liability 2.4 Immunity/Disability 2.5 Hohfeld: Conclusion 3. Obstacles to Conceiving Intellectual Property as Property 3.1 Intellectual Property Acquisition and Misunderstandings About What it Means to be a Right 3.2 What, No Automatic Injunction? That’s Not Property! 3.3 Why Intellectual Property Rights Are Not ‘Regulation’ 3.3.2 The Second Sense of ‘Regulation’ 3.3.3 Freedom and Permission 3.3.4 Freedoms in Historical Perspective 3.4 Intellectual Property Rights as Property Rights: Summing Up 4. Problems With Conceiving Intellectual Property as Property 4.1 Group Ownership 4.2 Intellectual Property As Constitutional Property: The Takings Problem 5. Conclusion 1. Intellectual Property Rights as Rights Electronic copy available at: https://ssrn.com/abstract=2959073 The phrase is common enough that it rolls off the tongue: intellectual property rights. It even has a well-known acronym, ‘IPRs.’1 But are they really rights? And if so, what kind of rights? Most importantly, what difference does it make that they are rights – what practical import does this carry? These are the questions I take up here. -
The Concept of Law Revisited
Michigan Law Review Volume 94 Issue 6 1996 The Concept of Law Revisited Leslie Green Osgoode Hall Law School, York University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Public Law and Legal Theory Commons Recommended Citation Leslie Green, The Concept of Law Revisited, 94 MICH. L. REV. 1687 (1996). Available at: https://repository.law.umich.edu/mlr/vol94/iss6/15 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. IBE CONCEPT OF LAW REVISITED Leslie Green* THE CONCEPT OF LAW. Second Edition. By H.L.A. Hart. With a Postscript edited by Penelope A. Bulloch and Joseph Raz. Oxford: Clarendon Press. 1994. Pp. xii, 315. $26. Law is a social construction. It is a historically contingent fea ture of certain societies, one whose emergence is signaled by the rise of a systematic form of social control and elite domination. In one way it supersedes custom, in another it rests on it, for law is a system of primary social rules that direct and appraise behavior, together with secondary social rules that identify, change, and en force the primary rules. Law may be beneficial, but only in some contexts and always at a price, at the risk of grave injustice; our appropriate attitude to it is therefore one of caution rather than celebration. -
AJ Aitken a History of Scots
A. J. Aitken A history of Scots (1985)1 Edited by Caroline Macafee Editor’s Introduction In his ‘Sources of the vocabulary of Older Scots’ (1954: n. 7; 2015), AJA had remarked on the distribution of Scandinavian loanwords in Scots, and deduced from this that the language had been influenced by population movements from the North of England. In his ‘History of Scots’ for the introduction to The Concise Scots Dictionary, he follows the historian Geoffrey Barrow (1980) in seeing Scots as descended primarily from the Anglo-Danish of the North of England, with only a marginal role for the Old English introduced earlier into the South-East of Scotland. AJA concludes with some suggestions for further reading: this section has been omitted, as it is now, naturally, out of date. For a much fuller and more detailed history up to 1700, incorporating much of AJA’s own work on the Older Scots period, the reader is referred to Macafee and †Aitken (2002). Two textual anthologies also offer historical treatments of the language: Görlach (2002) and, for Older Scots, Smith (2012). Corbett et al. eds. (2003) gives an accessible overview of the language, and a more detailed linguistic treatment can be found in Jones ed. (1997). How to cite this paper (adapt to the desired style): Aitken, A. J. (1985, 2015) ‘A history of Scots’, in †A. J. Aitken, ed. Caroline Macafee, ‘Collected Writings on the Scots Language’ (2015), [online] Scots Language Centre http://medio.scotslanguage.com/library/document/aitken/A_history_of_Scots_(1985) (accessed DATE). Originally published in the Introduction, The Concise Scots Dictionary, ed.-in-chief Mairi Robinson (Aberdeen University Press, 1985, now published Edinburgh University Press), ix-xvi. -
The Scottish Criminal Justice System
The Scottish Criminal Justice System Background The Act of Union 1707 between Scotland and England permitted Scotland to retain its separate legal system, which continued to be administered in Scotland. This meant that, even prior to devolution; the Scottish justice system had its own court system, its own police forces, its own prosecution service and its own prison and criminal justice social work services. The 1998 Scotland Act devolved a range of powers from Westminster to the reconvened Scottish Parliament, which included legislative powers to administer the Scottish legal system. Legislative powers over some areas, including terrorism and legal safeguards for human rights, remain reserved to the United Kingdom. In addition, the Supreme Court, which was established in October 2009, sits as a Scottish Court to hear appeals from civil cases arising in Scotland, and also hears criminal cases where human rights are at issue. However, in most cases, final appeals relating to criminal cases continue to be heard by Scottish courts (for more detail see Joyce, 2004 - book section available here). The 2008 Act also devolved executive powers to the Scottish Government. The Cabinet Secretary for Justice has overall responsibility for criminal justice in Scotland, which includes “the justice system, security, access to justice, criminal law and procedure, civil law, the police, the legal profession, courts, sentencing, prisons and prisoners, victims and witnesses, reducing reoffending, youth justice, criminal justice social work, community safety, fire and rescue services, anti-social behaviour, drugs policy, violence reduction, anti-sectarianism and liquor licensing” (Scottish Government website.) The Scottish Parliament is responsible for scrutinising the policy and legislative proposals of the Scottish Government, and the Justice Committee fulfils much of the scrutiny in relation to criminal justice. -
Finlay Scots Lawyers Stairsoc
This is a publication of The Stair Society. This publication is licensed by John Finlay and The Stair Society under Creative Commons license CC-BY-NC-ND and may be freely shared for non-commercial purposes so long as the creators are credited. John Finlay, ‘Scots Lawyers, England, and the Union of 1707’, in: Stair Society 62 [Miscellany VII] (2015) 243-263 http://doi.org/10.36098/stairsoc/9781872517292.4 The Stair Society was founded in 1934 to encourage the study and advance the knowledge of the history of Scots Law, by the publication of original works, and by the reprinting and editing of works of rarity or importance. As a member of the Society, you will receive a copy of every volume published during your membership. Volumes are bound in hardcover and produced to a high quality. We also offer the opportunity to purchase past volumes in stock at substantially discounted prices; pre-publication access to material in press; and free access to the complete electronic versions of Stair Soci- ety publications on HeinOnline. Membership of the society is open to all with an interest in the history of Scots law, whether based in the UK or abroad. Indivi- dual members include practising lawyers, legal academics, law students and others. Corporate members include a wide range of academic and professional institutions, libraries and law firms. Membership rates are modest, and we offer concessionary rates for students, recently qualified and called solicitors and advocates, and those undertaking training for these qualifica- tions. Please visit: http://stairsociety.org/membership/apply SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707 JOHN FINLAY I Support from the legal profession in Scotland was important in securing parliamentary union in 1707.1 At this time, the membership of the Faculty of Advocates in Edinburgh was greater than it had ever been, therefore their support, and that of the judges in the Court of Session, was worth gaining. -
Warranties; Insurers' Remedies for Fraudulent Claims; and Late
09/07/2014 12:41 353 / Scot Law Com No 238 Law Com No Insurance Contract Law: Business Disclosure; Warranties; Insurers' Remedies for Fraudulent Claims; and Late Payment Law Commission Insurance Contract Law: Business Disclosure; Warranties; Joint Report Scottish Law Commission Insurers’ Remedies for Fraudulent Claims; and Late Payment LC 353 / SLC 238 41872 Cm 8898 Law LC353 Cover.indd 1 The Law Commission and The Scottish Law Commission (LAW COM No 353) (SCOT LAW COM No 238) INSURANCE CONTRACT LAW: BUSINESS DISCLOSURE; WARRANTIES; INSURERS’ REMEDIES FOR FRAUDULENT CLAIMS; AND LATE PAYMENT Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty Laid before the Scottish Parliament by the Scottish Ministers July 2014 Cm 8898 SG/2014/131 © Crown copyright 2014 You may re-use this information (excludi ng logos) free of charge in any format or medium, under the terms of the Open Government Licence v.2. To view this licence visit www.nationalarchi ves.gov.uk/doc/open-government-licence/version/2/ or email [email protected] Where third party material has been identified, permission from the respective copyright holder must be sought. This publication is available at www.gov. uk/government/publications Print ISBN 9781474109178 Web ISBN 9781474109185 Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty’s Stationery Office ID 04071405 07/14 41872 19585 Printed on paper containing 75% recycled fibre content minimum ii THE LAW COMMISSION AND THE SCOTTISH LAW COMMISSION The Law Commission and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. -
The Scottish Bar: the Evolution of the Faculty of Advocates in Its Historical Setting, 28 La
Louisiana Law Review Volume 28 | Number 2 February 1968 The cottS ish Bar: The volutE ion of the Faculty of Advocates in Its Historical Setting Nan Wilson Repository Citation Nan Wilson, The Scottish Bar: The Evolution of the Faculty of Advocates in Its Historical Setting, 28 La. L. Rev. (1968) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol28/iss2/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. THE SCOTTISH BAR: THE EVOLUTION OF THE FACULTY OF ADVOCATES IN ITS HISTORICAL SOCIAL SETTING Nan Wilson* Although the expression "advocate" is used in early Scottish statutes such as the Act of 1424, c. 45, which provided for legal aid to the indigent, the Faculty of Advocates as such dates from 1532 when the Court of Session was constituted as a College of Justice. Before this time, though friends of litigants could appear as unpaid amateurs, there had, of course, been professional lawyers, lay and ecclesiastical, variously described as "fore- speakers," procurators and prolocutors. The functions of advo- cate and solicitor had not yet been differentiated, though the notary had been for historical reasons. The law teacher was then essentially an ecclesiastic. As early as 1455, a distinctive costume (a green tabard) for pleaders was prescribed by Act of Parliament.' Between 1496 and 1501, at least a dozen pleaders can be identified as in extensive practice before the highest courts, and procurators appeared regularly in the Sheriff Courts.2 The position of notary also flourished in Scotland as on the Continent, though from 1469 the King asserted the exclusive right to appoint candidates for that branch of legal practice. -
On Neil Maccormick's ‘Universalisable Particular Thesis’ Jingjing Wu
Document generated on 09/25/2021 10:28 p.m. Informal Logic Justifying Particular Reasoning in a Legal Context On Neil MacCormick's ‘Universalisable Particular Thesis’ Jingjing Wu Volume 40, Number 3, 2020 Article abstract Particular reasoning is arguably the most common type of legal reasoning. Neil URI: https://id.erudit.org/iderudit/1071501ar MacCormick proposed that, in a legal context, justifiable particular reasoning DOI: https://doi.org/10.22329/il.v40i30.5994 has to be universalizable. This paper aims to: (1) investigate MacCormick’s thesis; (2) explain how a particular can ever be universal by drawing See table of contents inspiration from Scott Brewer’s formula on reasoning by analogy; (3) further comprehend MacCormick’s thesis by considering some of the arguments advanced by its opponents; (4) use the ‘pilot-judgement procedure’ developed Publisher(s) by the European Court of Human Rights as an example to illustrate the relevance of the universalizable particular thesis in today’s legal practices. Informal Logic ISSN 0824-2577 (print) 2293-734X (digital) Explore this journal Cite this article Wu, J. (2020). Justifying Particular Reasoning in a Legal Context: On Neil MacCormick's ‘Universalisable Particular Thesis’. Informal Logic, 40(3), 423–441. https://doi.org/10.22329/il.v40i30.5994 Copyright (c), 2020 Jingjing Wu This document is protected by copyright law. Use of the services of Érudit (including reproduction) is subject to its terms and conditions, which can be viewed online. https://apropos.erudit.org/en/users/policy-on-use/ This article is disseminated and preserved by Érudit. Érudit is a non-profit inter-university consortium of the Université de Montréal, Université Laval, and the Université du Québec à Montréal.