#16454 - Unenacted Law - Scottish Legal System

1. Unenacted Law

1. Institutional Writings

• Generally legal literature is a secondary source of law but some texts are treated as authoritative and as a primary source

• the approach of Institutional writers can be contradicted by legislation, or departed form by the courts.

• The acceptance of the Institutional writers as a source of law is dependent on recognition by the courts (example of judge-made law)

• Although institutional writings were of extreme importance in the past, it would be unusual for modern courts to justify its decision by sole reference to it

• Today, their role is to supply a moral and intellectual anchor for the law, providing stability while not excluding change

• Institutional writers:

Civil law

• Stair

• Bankton

• Erskine

• Bell

Criminal law

• Mackenzie

• Hume

• Alison

2. Judicial Precedents and Case Law:

Ratio decidendi:

• The reason for deciding, rational, principle and cause the judge had in mind to tip case in favour of one party.

• This reason becomes a rule of law, which can bind later cases to it.

• A difference between case law rules and legislation is that the words used in case law are not as precise as legislation.

Stare decisis:

• Judges stand by what has been decided before and do not disturb or unsettle what has been decided before

• Judges to some degree consider themselves bound to what previous judges decreed

• The binding force of cases depends on the place of that court in the court hierarchy

• Further down the hierarchy, the more judges are bound to court decisions on cases.

Court Hierarchy

• Precedence can be thought about vertically as a hierarchy

• Appellant hierarchy: cases from higher courts bind cases in lower courts because higher courts are used for appeal which give them more power to overrule decisions made by lower courts.

• The horizontal relations in this system: what one court decides mostly binds it for future cases in that specific court

• “strength of numbers” principle: often, the same court can overrule one of its past decisions if it assembles a larger number of judges on the bench

• Example: Inner house of Court of Sessions- when there are 3 judges, past rulings are bindings, but when it wants to overrule, it assembles 5 or 7 judges who debate and give a more authoritative decision

• When thinking about precedent, it is important to also consider jurisdictions of England and Whales, and Northern Ireland

• Especially because Scotland is a mixed legal system, so systems of precedent and common law seem to be permeable to other jurisdictions (English, Northern Irish and Australian courts)

Case Law as Reasoned Tradition

• Case law and precedent is always looking to the past for decisions, does this mean that law doesn’t change or progress?

No, this is justified because precedent is a reasoned system of tradition

Precedent as Unenacted and Unwritten Law

• Judicial decisions are unwritten law as there is no definitive form of words in a case which contain the rule

• This is unlike legislation, where the rule has no meaning unless through the words in which it is expressed

• Judges’ statements cannot be extracted and used as a rule of law due to potential lack of clarity, long descriptions, no concise divisions of thoughts, etc.

• Therefore, rules and presumptions of interpretations cannot be applied to judge’s statements like they are applied in legislation

• Instead, case law rule is read in the context of the specific case because case law is grounded in real facts

• But in some cases, rules are not base upon proven facts

• But this doesn’t matter because facts are assumed based on pleas of relevancy

• Parties may agree on facts of the case, so the rule of law is derived from these facts

• It is the judge’s reasoning and rational that is the rule derived from the case (ratio decidendi)

• What judges decide in fact of a specific case is not legally binding, but what they decide in law is

• Case law rules bind in degrees by analogy but legislation either binds fully or not

• Precedent forms “chains” of cases, where earlier cases mean what later judges interpret them as

• The current meaning of a case is what the latest judge interprets it as

• Cases are authoritative by degree based on which court it was held in due to the appellate hierarchy

• Even though there is no appellate link between the Outer House and the Sheriff Court, decisions in the Outer House tend to be more authoritative than those in the Sheriff Court

• Sometimes cases produce general principles not rules

Law Reports

• In the past, law reporting is a matter of private enterprise not the state

• But now the state is taking more of a responsibility to report cases and make them public

• Scottish Council of Law Reporting

• publish official Session Cases reports

• Judges of these cases have a chance to check the final definitive wording fo their speeches before they are reported

• Contain statement of counsel’s arguments to see the exact point of law parties were arguing over, which makes the ratio more accurate

• See all cases that counsels cited

• Scots Law Times (SLT): commercially produced law reports

Why precedents create rules

• Equality before the law: justice requires that similar cases be treated and decided alike

• Efficiency

• Decentralisation of decision making

Hierarchy of Civil Courts and Stare Decisis

The Supreme Court of the United Kingdom

• UKSC was previously known as the House of Lords, but it was set up by the Constitutional Reform Act 2005

• Horizontally: UKSC generally considers itself to be bound by its past decisions

• House of Lord’s Practice Statement (Judicial Precedent) 1966 changed view from the strictly binding precedent of SC to giving it the ability of overruling

• There are cases where binding to past decisions could lead to injustice as well as inhibit the proper development of the law

• But there are concerns with overruling past decisions:

• This is because of retrospectively disturbing the contracts, settlements of property and fiscal arrangements

• People have deliberately planned their affairs on the assumption that a specific UKSC decision is binding

• So if UKSC overrules a decision, the overruling applies retrospectively to past decisions (unlike changing legislation which applies prospectively)

• This is because theoretically, when a judge makes a decision in a case, they are not creating law, they are simply identifying the state that the law has always been

• To overrule a past decision, 7-9 justices would convene instead of the normal amount of 5 and a simple majority would suffice to overrule

• Why decisions get overruled:

• The decision in Dick v Burgh of Falkirk (HL) overruled that of Wood v Gary (HL) because it does not rest upon maintainable support

• The decision in Miliangos v George Frank Textiles Ltd overruled that of United Railways of Havana v Regla Warehouses Ltd because of a fundamental change of economic conditions that makes the basis of a precedent obsolete

• When the rationale leading to a rule does not apply anymore, the rule itself becomes obsolete

• Decisions do not get overruled just because the conditions and rational under which that rule was made merely cease to apply, but needs a court of law to subsequently change that rule of law

• There are complications of overruling across jurisdictions

• UKSC or HL decisions from one jurisdictions affect changes of law in other jurisdictions

• Commerzbank v Large (CSIH)- First Scottish case after the English case Miliangos v George Frank Textiles Ltd in the House of Lords. Application of decision was questioned. There was a Scottish HL decision for this type of case which was similar to the overruled English decision (Havana).

Held: The new HL overruled decision was followed because the old Scots HL case decision was based on the same economic assumption that is no longer true, and it would be more pragmatic as if the parties would appeal to the HL, they would follow their own new decision and have the same result anyway

The Supreme Court (HL) and the Scottish Courts

• The Supreme Court only hears appeals for Scottish civil cases and not Scottish criminal cases

Vertical relations:

• UKSC or HL decision for a Scottish case binds all the way down the Scottish civil court network

Horizontal relations:

• Whether appeals from other jurisdiction to UKSC or HL apply or not

• Victorian View: HL was the pinnacle court for the entire British Empire and could fix the law for all British and UK jurisdictions

• This changed along with the recognition of the separate legal systems, as UKSC decision from one jurisdiction does not bind UKSC decisions in order jurisdictions

Example: Orr Ewing v Orr Ewing’s Trustees (HL)- an HL English decision cannot be conclusive in Scotland

• The subject matter of an appeal also matters when determining the degree to how authoritative a precedent is from another jurisdiction, rather than if it is binding or not

Example: Dalgleish v Glasgow Corporation- This Scottish case is about delict and there are big differences between delict and tort in the English jurisdiction. So it was held that the English HL case on this subject matter is not binding and is not so authoritative

The Court of Session

• Bound by Scottish decisions in UKSC or HL (Dick v Burgh of Falkirk (HL))

• Is made up of the Inner House and the Outer House

• Is a collegiate court

Inner House

• Hears appeals from lower courts

• Has 1^st Division (headed by Lord President) and 2^nd Division (headed by Lord Justice Clark)

• Made up of 5 judges in each division

• 3 judges sit in each case most of the times, but 5 judges can sit, or even 7 (from the other division)

• A court of 7 judges will bind a court of 3 and 5 judges...