INTRODUCTION 2.
Civil law: deals with disputes arising between
Definition of Law
1. White and Willock: words of someone in
authority who has the power to intervene in
other people’s affairs . . . and if they do not
comply something unpleasant is liable to
befall them.
2. Oxford dictionary: body of rules, whether
proceeding from formal enactment or
custom, which a particular state or
community recognizes as binding on its
members or subjects
Purpose of Law
to restrict and regulate certain kinds of behavior
1. Security (from assault, robbery, danger etc.)
2. Retribution (legal consequences for violation
the above)
Categories of Law
Public and private law
Note: No technical reason for these groupings.
It is just useful way of categorizing various
branches of law under separate headings
1. Public law: constitutional law, administrative
law and criminal law.
a. operation of government and the
regulation of the relationship
between government and citizens.
b. regulates other public bodies such as
the courts, the Scottish Parliament,
local government, and even the police
2. Private law: contract law, delict and family
law
a. regulation of relationships between
individual citizens and/or companies
and organizations
Civil and criminal law
Note: main difference between civil and
criminal law is that a different court structure
is used to regulate each.
1. Criminal law: Courts punish criminal behavior
and impose sanctions on individual liberty.
a. Criminal cases for prosecution
brought by officials representing the
state, people, against “accused”.
b. In Scotland, Procurator Fiscal, the Lord
Advocate
c. “beyond reasonable doubt”. If jury
has reasonable doubt based on
evidence on guilt, they are acquitted.
High standards to safeguard liberty of
accused.
two or more parties, where the conduct of
one party has caused unjustified loss to
another
a. Civil cases for litigation brought by
pursuer/petitioner against
“defendant”.
b. Aggrieved party may attempt to sue
the other party before the civil courts
if they have failed to fulfil their
obligations.
c. Courts have no power to interfere
with individual liberty.
d. Financial compensation instead of
punishment or fine.
e. Lower standard of proof.
f. Principle: Balance of probabilities
3. Overlap between civil and criminal law:
happen when a type of behaviour occurs
which is both criminal and civil in nature. Ex.
Assault is criminal act and damages from
which can be recovered.
Sources of Law and Legal Research
Sources of Law
Sources give authority to the rules and principles
within the system. Creating and defining these
sources will differ according to the type of legal
system.
1. Codes (Civil law): Civil law systems are
codified;
a. influenced by roman law
2. Judicial precedent (common law): Legal
principles are derived from written decisions
of judges;
a. influenced by English law
3. Hybrid: Mixed system;
a. Scots law – their crim law is common
law; others on codified Acts of
Parliament.
Legal research
1. Required skills (P Clinch, Teaching legal
research, 2nd ed., 2006):
a. Identifying and analyzing legal
problems or questions
b. Finding appropriate information to
answer the question
c. Communicating results of analysis and
research
2. Finding appropriate info: knowledge of
structure of legal literature
a. make effective use of law library and
online services to find and access info
 b. use and understand legal citation and
abbreviations
c. Check if into is updated
d. Keep updated with legal documents
e. Select appropriate search terms
f. Read, understand, evaluate info
g. Cite sources
Legal Info: Sources of Scots Law
Primary and secondary sources
1. Primary sources: law itself
a. Legislation – law made by/ under
authority of Parliament.
b. Case law – judges, decided in court
c. Institutional works – codifications of
Scots law (17th-19th centuries)
d. Custom – traditions not enshrined in
either legislation or case law
e. Quasi/extra-legal sources – issued by
public and private agencies.
2. Secondary sources:
commentary/interpretation of law
a. Textbooks, monographs, research
publications
b. Journals (periodicals)
c. Encyclopedic works
d. Reference and bibliographic works
(e.g. dictionary, directory, indexes,
legal citators).
3. Other sources:
a. Official publications – part. Those
relating to UK and Scottish
parliaments
b. European union materials – legislation
and case law from EU institutions
c. International and other non-UK
materials
Characteristics of legal information
Importance: no single source where you can
find all of laws needed to solve a legal
problem.
1. Currency
2. Authority – higher authority in “official”
publications.
3. Jurisdiction – to which a source relates. Some
info applicable to UK, but others contain legal
info for England and Wales of Scotland
4. No single source – need several sources to
fully understand the law. You also need to
check if current using citators
Print and online sources
Many law reports are produced as printed volumes
but available via online databases. Some only in print
form. Some easy access and current sources are not
necessarily most authoritative or appropriate. Use
both.
INTRODUCTION TO STATUTORY INTERPRETATION
Traditional approaches
1. Literal rule: can result in absurdities
2. Golden rule: if literal approach makes
absurdities; construe words to give meaning
to actual intention of legislature.
3. Mischief rule: oldest traditional rule; context
of making statute; what was the “mischief”
that the legislature was trying to address?
Modern approaches
1. Purposive approach: ascertain objective of
lawmaker, examine terms of specific section
being interpreted. Look beyond 4 corners of
statute; good for human rights.
2. Modern or unified contextual approach: now
rare to use literal rule on its own. Rules by
Cross, Statutory Interpretation
a. Court must give effect to
grammatical, ordinary, or technical
meaning of words within general
context. Of statute.
b. If giving such effect produces
outcome contrary to purpose of
statute, any secondary meaning may
be used.
c. To prevent statutory provision from
being unintelligible, absurd,
unworkable with rest of statute, we
may read in words which it considers
to be necessarily implied by words
which are already in the statute and
has limited power to add to, alter, or
ignore any other statutory words.
d. In applying above rules, court may
resort to specific aids to construction
and presumptions
e. Must interpret a statute so as to give
effect to directly applicable law; if not
possible, must refrain from applying
the statutory ns which conflict with
that law.
f. Primary and subordinate legislation
must be read and given effect in a
way which is compatible with
convention rights.
Aids to statutory interpretation
Intrinsic aids
1. Interpretation sections: definitions provided
already by statute
2. Long title: contains preamble which gives an
indication as to context of Act itself. Short
title may also be used
3. Preambles: context about mischief
4. Headings/marginal notes
5. Punctuation: for ambiguity
6. Other enacting words: words/parts of a
statute may indicate that a particular
interpretation of that provision will lead to
absurdity when taken with another section
7. Explanatory notes
Linguistic aids
1. Eiusdem generis rule: “words of same genus
or class” are supplied when a series of words
are enumerated, following by “others”.
2. Noscitur a sociis rule: “thing is known from its
associates”. Context clues within the statute.
3. Expression inius est exclusion alterius rule:
“expression of one thing is exclusion of
another”; if specific list of words provided,
that’s it.
Statutory presumptions
Presumptions are used to ascertain intention of a
legislature/ meaning of words.
1. Presumptions of general application: long
established rules (e.g. no retrospective effect,
right to be heard, criminal liability needs mens
rea)
2. Presumptions in doubtful cases – reflect
judicial policies built over years; mainly about
the legislature (parliament)
Extrinsic aids
Things that are not found in the statute.
1. Dictionary
2. earlier statutes dealing with similar areas of
law
3. previous decisions/jurisprudence
4. other statues
5. legislative history: ex. What defect in common
law were they trying to resolve
6. government publications: precede and lead to
passing of statute
7. debates: reported by Hansard.
INTRODUCTION TO CALSE LAW AND JUDICIAL
PRECEDENT
Judicial precedent
1. most important after legislation; becomes
part of the law
2. a.k.a. case law or common law; from decision
of judges.
3. Difficult to find and interpret; must be
extracted from written judgment of cases;
judges’ differing writing styles.
4. Legislation can alter precedent, because leg is
supreme. Leg can also write laws about issues
already discussed in precedents, changing
them.
5. Previous and instant case must be of same
matter of issue, NOT FACTS, using ratio
decidendi (point of law used for decision)
Precedent and court hierarchy
Lower courts bound to follow precedent of higher
courts. Lower court decisions are persuasive.
1. Criminal court: Justice of peace court
sheriff court  high court of justiciary (trial
court)  High court of justiciary (appeal
court). Last is NOT bound by own precedents,
but any precedent questioned are viewed by
larger number of judges
2. Civil court: sheriff court  court of session
(outer house)  Court of session (inner
house)  Supreme court of the united
Kingdom
3. House of Lords: replaced by Supreme Court
Law reporting and sources of case law
Judge must know the precedent jurisdictions for state
decesis. Reports make this possible.
Sources of case law
1. Reported cases
a. Generally, the precedent ideally
introduces a new legal principle or
rule, or modify, interpret, or illustrate
new applications
2. Digests: summary
3. Transcripts: of judgments. Produced by court
or publisher containing opinion of judges, no
add info.
Principal Scottish series
1. Session cases
2. Scots law times
3. Scottish civil law reports
4. Green’s weekly digest
5. Older cases
Principal English series
1. The law reports
 2. The weekly law reports 1. Current law: Use current law case citator,
3. The all England law reports containing the ff:
4. The English reports a. new cases with citations to reports
5. European series b. instances where decision is judicially
6. Specialist series considered in ANOTHER case.

FINDING AND USING CASE LAW Citation of cases (P.Y.V.A.P)

Decisions can become bad laws. 1. P - Parties’ names (case name)
2. Y - Year Reported
Judicial consideration of previous decisions 3. V - Volume (if applicable)
1. Approved 4. A - Abbreviation of law reports series
2. Applied: applying reasoning of a previous case 5. P - Page number
when FACTS ARE DIFFERENT Neutral Citation:
3. Followed: Material facts are the SAME Names  Year  Abbreviation of Court 
4. Distinguished: not follow precedent due to number # of case.
difference in facts. Previous case remains
good law 1. Finding Cases by Citation
5. Disapproved: lower court wrongly decided; a. Identifying abbreviations
precedent MAY not be good law i. Traditional
6. Doubted: reasons why it may be wrongly ii. Online
decided. 2. Finding cases by party names
7. Overruled: expressly overrule ratio decidendi 3. Finding cases by subject
in ANOTHER case. 4. Checking case status
8. Affirmed: SAME case correctly decided.
9. Reversed: SAME case wrongly decided. Bad
law.

Structure of law report

1. Parties’ names
2. Court
3. Date of hearing
4. Name of judge who heard case
5. Subject matter of case
6. Headnote (rubric - summary of case outlining
material facts, legal issues, decision)
7. Judicial history (in inferior courts)
8. Opinion
9. Outcome
10. Representation (advocates who represent
parties

Where to find case law

1. Library
2. online subscription services (westlaw, lexis
library, justis, lawtel, HeinOnline)
3. Online public access services (Scottish court
service, UK Supreme Court, BAILII, Curie,
Hudoc)

How to find and check case law

1. Citation
2. Party name
Aids to Finding and checking case law