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Scottish courts and the law
Scottish courts and the law

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1 What are courts?

Law permeates every aspect of society and our daily lives whether we are at home, during leisure time, travelling, at work, viewing films, using social media, having a meal, shopping in the local supermarket, driving, going to school, attending university or going on holiday. Laws are created in different ways but to be effective, mechanisms for the enforcement of law and for resolving disputes involving law need to exist. This is why over the past 1000 years a system for resolving disputes, the courts, evolved. The role of the courts is now to enforce and declare the law.

Nowadays we tend to take the existence of the court system for granted. But while aspects of the court system such as judicial decisions (judgments made by the judges), court costs, the role and appointment of judges, reform of the justice system and televising proceedings are discussed in the media and in parliament it is rarer for questions to be asked about the function of courts, why they exist and their role in contemporary society.

Courts are formally constituted bodies through which legal disputes can be dealt with. They are an adjudication mechanism provided by the state. These legal disputes can be disputes between individuals or organisations such as companies, local authorities or government bodies. They may be disputes between states or between a state and a member of the public. There will also be times when a member of the public is unable to take advantage of their legal rights, and requires the state to enforce them on their behalf.

Sometimes the actions of a member of the public or organisation create a situation where the state is required to prosecute. The most obvious example of this is when they are accused of committing criminal activity (an offence), for example, theft, criminal damage, environmental pollution or fraud. It is necessary for the state to determine whether the activity (offence) has been committed and, if so, to apply appropriate sanctions. The court is the independent body through which the state carries out this role.

You have probably encountered a range of fictional film or television representations of courts, have seen or heard media reports about particular court cases or heard reference to ’legal’ terms such as pursuer, delict, custody, contempt of court, damages, litigation, prosecution, class actions, interdict and compensation. These will have created an impression of the work of courts and why they exist. Activity 1 asks you to consider what you may have already heard about the role and structure of courts.

Activity 1 Thinking about courts

Timing: Allow about 5 minutes

Take a few moments to think about what you have heard or seen about courts and court proceedings. Make a note of any key points you recall and then note down your thoughts on the following questions:

Why do we have courts?
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Why do you think courts are important?
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Do you think courts are accessible?
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Who would you expect to see in a court room?
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Words: 0
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You may have thought about some of the portrayals of courtrooms you have seen in films or the appearance of a court building you may have walked past recently. Or you may have thought about a reporter discussing the fine imposed on someone, the damages awarded to someone injured in an accident, a prison sentence reported in the media, or the reported trial of an individual in an international court. Courts and the decisions of courts are frequently in the news but these news reports tend to focus on the outcomes of cases and rarely on the personnel, procedure, reasoning and role of the court.

There are no ‘right’ answers to this activity and its purpose was to get you to think about what existing knowledge you have and what your views and impressions may be. At the end of the course you will return to the notes you have made here to aid reflection on the course as a whole.