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Flashcards in Sources of Scots Law Deck (18)
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what is a crime?

'a situation forbidden by law under threat of punishment'


what is positive conduct?

the defendant must be proved to have committed a guilty act whilst having a guilty state of mind


what is a conduct which has a result

the action might not have been criminal but the result is


what is negative conduct (omissions)

the legal duty to act but fail to do so


what is negative conduct which has a result

failing to carry out a loyal duty which leads to a result


what is a 'state of affiars'

when an individual is charged of being in a particular state of affairs or for being in a particular situation


what are the five criminal situations contemplated in this course

positive conduct
conduct which has a result
negative conduct (omissions)
negative conduct which has a result
a state of affairs


what are the reasons for a particular scenario being a crime

because they involve harm, offence to others , contrary to morality and they harm the offender himself


what are the four main sources of scots law

common law, legislation, human rights and legal writings


what is 'common law'

the term used to describe the rules of criminal law which are traditional or judge-made


what does it mean by a system of precedent?

a rule or principle created by an authority within the legal system. Common law is founded as a collection of precedents established in previous legal cases.


what are the advantages of implementing a 'common law' legal system?

Flexibility. Allows the law to develop parallel to the evolving of society


what is the declaratory power of the High Court

The high court historically had the power to create new crimes in a quasi-legislative fashion. However, in modern day terms this would be on the contrary to the principles of clarity, accessibility and non-retro-activity expressed in the European Convention on Human Rights


why is legislation a source of law

it contains the rules and regulations of our society and is needed to prosecute those who have done wrong


why is human rights a particularly important source of law

following the enactment of the Human Rights Act 1998, it comprises most of the rights and freedoms that human beings are entitled to


why do human rights legislation have an impact on law making

the Scottish parliament has no power to enact legislation which is incompatible with the convention


what are two types of legal writings

institutional writers and other texts


what is meant by an institutional writer

in the absence of any statutory rule or judicial precedent the views of such writers will be accepted by the courts as determining the law. Only Baron David Hume 'the commentaries on the law of Scotland respecting crimes, is regarded as an legal authority in Scots criminal law