Abstract
How, then, does Zweigert and Kötz’s fourth aspect of style — the kind of legal sources acknowledged and the way they are handled — operate in Scotland? Here something needs to be said about what is meant by a source of law. Sometimes the term “source” is used in a historical sense, referring to the different elements that have contributed to the development of the law, as with canon law and feudal law. Sometimes it is used to refer to the bodies that are regarded as generating the law, such as Parliament, the courts and, on some accounts, the people. Sometimes it is used to refer to the places one needs to look in order to find out what the law is, such as statutes, reports of judicial decisions, institutional writings. Sometimes it is used to refer to the factors that may legitimately be considered in establishing the law on a given matter, such as rules of statute law, judicial precedents, authoritative statements, principles, equity and custom, even policies.
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References
For an argument concerning the proper limits of such consequentialist reasoning, see MacCormick, Legal Reasoning and Legal Theory (cit. ch IV, n. 56) especially chs V and VI.
See further, on this issue, the distinction made by Joseph Raz between a theory of law and a theory of legal adjudication, ‘The Problem about the Nature of Law’ in 1982 Contemporary Philosophy, vol 3.
For example, industrial tribunals were originally set up under the Industrial Training Act 1964.
Justices of the Peace in the District Courts apart.
At present the majority of the Reporters, who bring the cases to the Panel, also lack legal qualification. This, though, particularly now traineeships can be done through the Reporters’ Department, seems to be changing.
Industrial Tribunals in Scotland — Fact Sheet 1994/5.
Coined by Lord McLuskey in ‘Law, Justice and Democracy’ The Reith Lectures 1986 (London, 1987).
Although the greater participation of women, particularly within the Children’s Hearing System, should be noted.
Contributory negligence is one such exception.
s. 25.
See Jeremy Rowan-Robinson and Eric Young, Planning by Agreement in Scotland (Edinburgh: W Green & Son, 1989).
e.g. Agricultural Holdings (Scotland) Act 1949 s. 68.
Consumer Arbitration Agreements Act 1988. For a comprehensive account of arbitration in Scotland see R Hunter, Law of Arbitration in Scotland (Edinburgh: T & T Clark, 1987)
Although, as mentioned in the text, recourse may still be needed to the courts for enforcement purposes.
Respectively, the Parliamentary Commissioner Act 1967 and the Local Government (Scotland) Act 1975 Part II.
Sex Discrimination Act 1965 s. 71; Race Relations Act 1976 s. 62.
Even if some of the “fallout” is accounted for by failure of nerve, taking the line of least resistance and so on. See Cosmo Graham and Norman Lewis, ‘The Role of ACAS in Equal Pay and Sex Discrimination Cases’ EOC, June 1985.
Rules 170B(15) and 260D(10) in the Court of Session and Rule 132F in the Sheriff Court. It should be noted that while reference to the service may be thought of as compulsory, a conciliated outcome cannot be so. Further, even where the conciliation does work, the agreement still has to be endorsed by the Sheriff.
See later in this chapter.
Stewart Macaulay, ‘Non-Contractual Relations in Business: A Preliminary Study’ (1963) 28 American Sociological Review 55.
Britt-Mari Blegvad, ‘Commercial Relations, Contract and Litigation in Denmark: A Discussion of Macaulay’s Theories’ (1990) 24 Law and Society Review 397 at p 409.
For example, there has been recent criticism of the degree of formality with which, in some courts at least, the small claims procedure has been conducted. See Alan A Paterson and T St John Bates, The Legal System of Scotland: Cases and Materials (Edinburgh: W.Green/Sweet & Maxwell, 1993) pp 13–20 and also Kulinski y Hassell 1993 SLT (Sh Ct) 23.
See Brown v The Magistrates of Edinburgh 1931 SLT 456.
Burmah Oil Company v Lord Advocate 1964 SC (HL) 117.
Even if, initially at least, largely consolidatory of the existing common law.
See e.g. ‘Precedent’ in the The Laws of Scotland: Stair Memorial Encyclopaedia (cit. ch IV, n. 2) Vol 22, p 92.
Grant y Australian Knitting Mills [1936] AC 85.
Donoghue y Stevenson 1932 SC (HL) 31 at p 44, although with the exclusion of causing pure economic loss.
This would seem to be an example of what Ronald Dworkin calls ‘weak discretion’ — see Taking Rights Seriously (cit. ch IV, n. 57) p 31 ff.
So a Sheriff is neither bound by the decision of any other Sheriff (except those of his own Sheriff Principal) nor, it is argued, by that of a Lord Ordinary in the Outer House of the Court of Session.
See Jessop y Stevenson 1988 SLT 223 and, subsequent to it, Farrell y Farrell 1990 SCLR 717; Chalmers y Trustees ofPeterhead Harbour 1990 SCLR 387; Cromarty Leasing y Turnbull 1988 SLT (Sh Ct) 62; Wright y Frame 1992 GWD 8–447. Also T B Smith, ‘Precedent in the Sheriff Court’ 1988 SLT (News) 137; G Maher, ‘Precedent, the Sheriff Court, and Colleges of Justice’ 1988 SLT (News) 209; S C Styles, ‘Jessop’ 1990 Juridical Review 110.
This is mainly an appeal court, although it does have a limited jurisdiction at first instance, for example to hear certain petitions.
From the case of London Street Tramways [1898] AC 375 until the Practice Direction by the then Lord Chancellor, Lord Gardiner [1966] WLR 1234.
Although it will only overturn them following consideration by a full court. See, for an example, Morgan Guaranty Trust Co of New York y Lothian Regional Council 1995 SLT 299.
See e.g. Beith’s Trustees y Beith 1950 SC 66. Also on the maxim cessante ratione legis cessat ipsa lex, see Commerzbank AG y Large 1977 SC 375; 1977 SLT 219.
See previous chapter.
Stair, Institutions I i 16; Erskine, Institute I i 44.
F K von Savigny, Traité de droit romain trans Ch. Guenoux (Paris: Firmin Didot Frères, 1840)
Here it should be distinguished from custom of trade.
See H L A Hart’s distinction between habits and rules in The Concept of Law 2nd edn (Oxford: Clarendon Press, 1994) esp pp 55–60.
This is a point on which I am unclear about Hart’s ideas. See ibid p 97, where, in discussing the idea of rules of adjudication, he argues that ‘Besides identifying the individuals who are to adjudicate, such rules also define the procedure to be followed’ but it seems far from certain that all of the practices amount to rules of adjudication. Many seem more like aspects of the rule of recognition, the status of which as a legal or social rule itself seems to be uncertain, see ibid pp 109–112.
See Lord Kames, Principles of Equity 3rd edn (Edinburgh: Bell & Creech, 1778) p 26.
e.g. audi alteram partem (both sides of the case should be properly heard); nemo iudex in re sua (noone should be judge in his own cause).
Originally established under the Employment Act 1980, now under the Trade Union and Labour Relations (Consolidation) Act 1992 s. 203. For another example, see the Environmental protection Act 1990 ss. 2, 3& 4.
Respectively, replacing s. 17 of the Industrial Relations Act 1971; under s 17 of the Employment Protection Act 1975; and under s. 199 of the Trade Union and Labour Relations (Consolidation) Act 1992, previously ss. 27–32 of the Employment Protection (Consolidation) Act 1978.
With the consent of the Secretary of State. See Health and Safety at Work Act 1974 s. 16.
s. 124(3).
I am indebted to my colleague David Goldberg for this example.
e.g. the Immigration Rules under the Immigration Act 1971.
The Health and Safety at Work Act 1974 s. 17; the Health and Safety Regulations 1977. Similarly, compliance with the Highway Code operates to help establish the standard of the reasonable defender in delict actions.
Ry Panel on Takeovers and Mergers, ex parte Datafin plc and another (Norton Opax plc and another intervening) [1987] 1 All E R 564.
atp 566.
SI 1984/716.
at p574.
1986.
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Attwooll, E. (1997). The Style of Scots Law Continued. In: The Tapestry of the Law. Law and Philosophy Library, vol 26. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8800-3_5
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