Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

1 What is law?

Before considering how law is interpreted and the role it plays on society we need to be clear about what we mean when we refer to ‘law’. What is ‘law’, how do we know it exists and how is it defined? By asking you to think about what you mean when you use the word ‘law’, we are asking you to draw upon your own knowledge, views and experience.

The ‘law’ is rarely out of the news and is often the focus for fictional drama. It is something that touches our lives on a daily basis, it governs what we can and cannot do, it is used to settle disputes, to punish and to govern. There are laws which are widely accepted and laws which generate controversy. Laws play a central role in social, political and economic life.

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Figure 1 Picture of the words ‘The Law’

Many people think they know what the law is when they see it and your individual viewpoint will affect how you define law. Many lawyers feel that a society cannot be properly understood or explained without an understanding of its law and legal culture.

There are many definitions of law and Activity 1 asks you to think about how law affects us all and how it can be defined in more detail.

Activity 1 Thinking about law

(Allow 15 minutes)

Part 1

Take a few moments to think about situations in which you have had contact with the law during the past 24 hours; for example, buying something, driving or walking across a road. In the box make notes on the contact you have had.

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Comment

There is no one correct way in which to answer this question as there are a number of ways in which you could have come into contact with the law in the last 24 hours. It will depend on your personal circumstances and what activities you have undertaken in that time. For example, did you go to the supermarket, school or to work? How did you travel? Did you go out with friends? Did you visit family? Did you visit your doctor? Did you go away? Have you visited an exhibition? Did you take part in sport? Did you buy a coffee or take-away meal? Did you use the internet to search for information or contact friends? Have you watched catch-up TV?

Have a look at the suggestions that follow, as some of these contacts with the law may also appear on your list.

  • Travel: if you have driven a car then you will have had to drive in an appropriate manner to comply with the law, taking reasonable care for the safety of other road users, obeying the speed limit and ensuring that the car is roadworthy and that you have appropriate insurance to allow you to drive. If you have travelled by public transport, such as a bus, tram or train, then a fare would have been payable or a bus pass or rail card shown.
  • Employment: if you work then you have a contract with your employer. A number of laws have to be complied with. One example is the contract of employment which sets out certain rights and duties of both the employer and the employee.
  • Leisure activities: you may have gone to the cinema or to a restaurant or had a takeaway meal. Here you have entered into a contract to pay for the services you receive (the film or the meal). The owners of the premises have to comply with laws that ensure your safety, and places that sell food have to comply with strict food and hygiene laws.

These represent just a few examples and they do not include direct contact with people involved with the law, for example police officers, solicitors, advocates and other personnel of the Scottish legal system.

Part 2

Having thought about how you may have had contact with laws in the last 24 hours try to identify what you think the particular laws have in common. If you want to use other examples try to think about what the laws on speeding vehicles (such as cars or motorbikes) may share in common with the laws on buying and selling goods (such as coffee, clothes, a kettle, car or fridge) and how these differ from an agreement to meet up with a friend or family member. What may happen if those laws/ agreements are broken?

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Comment

Again, there was no one way in which to approach this question. The examples provided were designed to encourage you to think about the difference between the laws and other systems of rules such as informal agreements to meet friends or that you don’t step off a moving tram. We thought about the following:

  • Both the laws and agreements represent some form of rule. The laws are an example of a particular type of rule. An agreement to meet up with friends is a form of social rule. The consequences of breaking the law differ from those of breaking the social rule.
  • The rules in relation to vehicles speeding and buying and selling goods had the status of law (they weren’t something we had agreed with a friend or family member).
  • The rules were created in different ways. The laws were created by different processes to the agreement. The processes to create law are determined by the legal system which has the authority of the state.
  • What sanctions (penalties) exist and how they are applied differs. The rules which were laws had clear sanctions which were widely known about and applied across society. For speeding, penalties include points on your driving licence and a fine. If you fail to honour a contract, you may be asked to pay monetary compensation. A failure to turn up for a meeting with a friend or family member breaches the agreement but the consequences are less clear and would not apply across society.
  • In order for the sanctions to be applied, someone or somebody had to do something. In relation to the laws these would be applied through enforcement mechanisms developed by the state.

This brings us to the definition of law that is used throughout this course. Law is a set of rules created by state institutions which make laws through the authority of the state. The laws have sanctions which are recognised by the state and enforced by state-authorised bodies. This is quite a wordy definition but it highlights some of the important factors in law-making:

  • the authority of the state is needed
  • only certain institutions can make law
  • the institutions that make law have been given the authority to do so
  • sanctions exist for breaking the law
  • the sanctions are imposed by those given state authority to do so.
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