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Scottish courts and the law
Scottish courts and the law

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2 Why have courts?

The statements in Box 1 help to highlight some of the reasons why courts are regarded as important, the role they play and functions they perform.

Box 1 Why do courts exist?

  1. Courts are important because they help protect our constitutional rights to equal protection and due process under the law.
  2. Both criminal and civil courts provide the opportunity for the parties to have their cases heard by neutral judges and/or juries. This process ensures that all cases are decided in a fair and consistent manner.
  3. Courts provide a forum to resolve disputes and to test and enforce laws in a fair and rational manner.
  4. Courts are an impartial forum, and judges are free to apply the law without regard to the states wishes or the weight of public opinion but in line with human rights.
  5. Court decisions are based on what the law says and what the evidence proves; there is no place in the courts for suspicion, bias or favouritism. The procedures and decisions must be accessible and transparent and apply the rights found in the European Convention on Human Rights (ECHR). This is why justice is often symbolised as a blindfolded figure balancing a set of scales, oblivious to anything that could detract from the pursuit of an outcome that is just and fair.
  6. Courts exist to do justice, to guarantee liberty, to enhance social order, to resolve disputes, to maintain the rule of law, to provide for equal protection to all regardless of background and to ensure the due process of law.
  7. Courts exist so that the equality of individuals and the state is reality rather than empty rhetoric and to ensure that the rights enshrined in the ECHR are applied in its decisions and complied with by legislation.

From these statements it can be seen that courts are regarded as playing an important role in protecting and enforcing the rights of individuals. Those rights may come from (be derived from) statutes, treaties (for example, the ECHR) or common law.

The courts’ function is to adjudicate legal disputes between parties and carry out the administration of justice in accordance with the rule of law. The courts’ role is to determine disputes in the form of cases which are brought before them. As mentioned earlier these disputes may be between the state and individuals, between individuals, between individuals and organisations, between organisations, between organisations and governments etc. In order to resolve the dispute the courts hear the evidence presented by the parties in a case before making a decision based on what facts have been proved and the applicable law. A judgment is made on which party is liable, or not, and then a decision is made on the appropriate remedy or sanction and costs.

The parties to a case are those involved in either bringing the case or defending the case, or those who have been joined into the case by those bringing or defending the case.

‘Judgment’ (rather than ‘judgement’) isn’t a misspelling; it refers to legal decisions or verdicts.