The Sources of Legislation That Are Binding in Scots Law

The European Union (EU) is a political economic union of 28 members. The founders are France, Belgium, Luxemburg, Italy, Netherlands, and Germany. The Maastricht treaty established the European Union in 1993. The EU aims to ensure the free movement of people, goods, services and capital and regional development. These 28 member states have successfully integrated because of their similar cultural lifestyles.

The EU was created after the Second World War to unite the neighboring countries of Europe. It was established by six European countries in 1951: France, Belgium, Luxembourg, Italy, Netherlands and West Germany (Briney, 2015). Today it consists of 28 countries united to create an economic and political community (Gov.uk, 2014).

27). By following this doctrine of precedent, stare decisis, judges are bound to follow the ratio decidendi, the reasons given, for the rulings in previous cases from higher up in their jurisdictional hierarchy. Rulings from other jurisdictions can also be used as persuasive force and argument, as can the obiter dicta, the judges’ comments other than those given as the reason for the ruling. In this way Judge made law resolves conflict and injustice by ruling consistently with rulings made in previous, characteristically similar cases. An inconsistent approach to similar situations cannot equate to being fair, just or equitable. In this way the ALS is not biased or prejudice, is applied equally to all, and ensures that the law is based on fairness and justice.

The countries of the European Union today are France, the three Benelux countries, United Kingdom, Cyprus, Germany, Sweden, Greece, Italy, Denmark, Ireland, Spain, Portugal, Finland, Latvia, Austria, the Czech Republic, Estonia, Bulgaria, Hungary, Lithuania, Slovakia, Malta, Poland, Slovenia, Romania.

European Law is very complex law , within EU law there is various different treaties which are in place. Two most significant treaties which have importance to the legislative process are The Treaty on European Union and the Treaty on the functioning of the European Union.

1. Stare Decisis/Precedent - A stare decisis is defined by the Criminal Justice Today textbook as "A legal principle require that, in subsequent cases on similar issues of law and fact, courts be bound by their own earlier decisions and by those of higher courts having jurisdiction between them. The term literally means "standing by decided matters" (Schmalleger 111). It is known as the doctrine that rules or principles of law on which a court rested a previous decisions are authoritative in all future cases in which the facts are substantially the same. It is also known as the doctrine that a trial court is bound by appellate court decisions, which are known as precedents, on a legal question which is raised in the lower court. Reliance on

Writers, lawyers in the 17th and 18th centuries wrote books setting out principles on which Scots law is based, many based on roman Law, lawyers apply the principles to situations, e.g. Stair, Bell, Erskine.

Scots law is an inimitable legal system with an origin from Roman law. It also characterizes elements of common law with some feudal sources. This shows that Scotland has varied or mixed legal system compared to South Africa and to a certain extent it has codified systems of Louisiana and Quebec.

The highest rank court is the European Court of Justice, and the European Court of Human Rights. Below this, yet the highest and most powerful ranked in the United Kingdom, is the House of Lords also recognised as the Supreme Courts since 2009. The decisions of this court are binding on all other courts lower in the hierarchy. Prior to 1966 the House of Lords were too bound by their own decisions to help ensure certainty unless it was seen to be made ‘per incurium’ (by error). This meant the House of Lords could not overrule a previous decision even if it was socially outdated. This was illustrated in London Tramways v London CC where it was held certainty of the law was more important than individual hardship . However, the introduction of the Practice Statement 1966 gave the House of Lords flexibility to amend a law if it is ‘right to do so’. In the appeal documents a material change of circumstances usually has to be shown. The Practice Statement (HL: Judicial Precedent) [1966] 1 W.L.R.1234, per Lord Gardiner, argued for and against a rigid system of binding precedent and highlighted that even though certainty is of importance within the making of Laws, to follow past precedents blindly will lead to injustice. The House of Lords freed itself from a self-imposed restraint by exercising its inherent jurisdiction as a court to change its own practice.

Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the

The rule of law is seen as being one of the most fundamental components of the UK constitution as well as being a principle that is concerned with restricting parliamentary action. Though the rule of law is seen to be a component in the constitution; the actual meaning of the rule of law has been very problematic to interpret. This is considerably down to the fact that it means different things to different people as since the nineteenth century, academics, politicians and judges have proposed diverse definitions and explanations in regards to the rule of law and the role it upholds in the UK constitution.

The doctrine of judicial precedent is based on the principle of stare decisis which means ‘to stand by what has been decided’. It is a common law principle whereby judges are bound to follow previous decisions in cases where the material facts are sufficiently similar and the earlier decision was made in a court above the current one in the court hierarchy. This doctrine of precedent is extremely strong in English law as it ensures fairness and consistency and it highlights the importance of case law in our legal system. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."

The European Union is made of the European parliament, the European commission and the Council of Ministers which equates to around 740 members who represent the 27 member states of the European Union. The E.U has many responsibilities which include:

The European Union is a political community constituted as an international organization whose aim is to promote integration and a common government of the European people and countries. According to the Article 3 of the European Union Treaty, Union’s aim is to promote peace, its values and the well-being of its peoples. It is based on the values of freedom, democracy, equality, law enforcement and respect for human rights and dignity.

Critically assess the different sources and characteristics of the English Legal System. To what extents have external influences affected its development.