3 How is law reformed?
The one certainty in the study of any area of law is that it will be characterised by change. There is a continuous conflict between the need to acknowledge pre-established laws and the need to facilitate change in view of changing social and economic conditions. The law must be both static and dynamic: it must change, yet at the same time continue on its old path.
If the law was ever changing, it could not fulfil its basic function, namely to answer to the need for certainty, predictability, order and safety. An ever-changing law would increase practical uncertainty, social instability and economic insecurity.
Activity 2 Reflecting on why law changes?
Do you think the law should always change as an immediate response to changes in society? Or do you think that changes to the law should be gradual, taking into account previous laws and with a process of full consultation?
There is no one answer to this question. Your viewpoint will depend on your own views and experiences. Often, during debates about the law, there are few clear or obvious answers. One of the skills law students and lawyers develop is to create a persuasive argument using examples and information to lead their audience to the conclusion they wish to be drawn. This usually involves outlining the law, acknowledging strengths and weaknesses, considering other viewpoints, putting forward suggestions and creating a narrative. A narrative can be likened to a story with a beginning, middle and an end.
Law in Scotland can be changed in a number of ways:
- through the Scottish Parliament on devolved matters
- through the UK Parliament on reserved matters (or on devolved matters if there is a legislative consent motion)
- through the judiciary in the Scottish legal system
- through treaty obligations as enforced by the European Court of Human Rights.