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Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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1.1 Thinking about law

Law affects us all on a daily basis. It is inextricably linked with our lives. It is seldom out of the news and is often portrayed in film and drama. Listen to the following audio in which one of the course authors, Carol Howells, shares some thoughts on law and legal systems.

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Transcript

INSTRUCTOR:
Law plays an important role in our society, and before you embark on your studies of this boc, we wanted to share some thoughts and observations with you. The Scottish legal system is unique and has a long and rich history. It draws upon the traditions of both civil and common law, and at its core are a number of key principles. For example, that no person is above the law, and that no person can act as a judge in their own case.
As you start your studies, it is important to understand that there is no one source of law making. Legislation is created by parliaments-- both Scottish and the UK at Westminster, case law through the court system. In addition, over the past 70 years, international treaties and membership of international organisations such as the Council of Europe and the European Court of Rights have also had an influence.
But why is law so important, and what role does it play? What would happen without it? Would we descend into chaos or simply create a new system? Law emerged from rules. As society developed, we developed rules, for example about who could own what, what we could wear, where we could travel, rules about trade, and rules about crimes. As these rules developed, so did remedies and punishments for those who had breached them. A legal system emerged, and laws became part of everyday life.
There are many differing opinions about law and the purpose of legal systems. We'll take just a few examples here, and we'd like you to think about these as you progress through your studies. Aristotle is often quoted as saying that "law is reason free from passion," but he went on to say that "whereas law is passionless, passion must ever sway the heart of man." The law, however, is made by individuals who have a reason for making that law. We can contrast this with other opinions. For example that of Otto von Bismarck, who said that "laws are like sausages, it is better not to see them being made."
Law and legal systems are however fascinating. They affect every aspect of our lives and the society in which we live. We'd like to share some of reflections made by a former colleague, Professor Gary Slapper, who had a passionate belief in social justice and the opening up of access to law. He said, "Although law is sometimes portrayed as a dull discipline pursued by ethically dubious practitioners, it is a spellbinding vivid and varied subject which affects every part of human life. Law governs everything, from the embryo to exhumation. Law regulates the air we breathe, the food and drink that we consume, our travel, sexuality, family relationships, our property, sport, science, employment, education, health, everything in fact from neighbour disputes to war."
11 UK prime ministers have had legal qualifications, most recently Tony Blair, and many world leaders are lawyers, including Barack Obama. Other law graduates include Gandhi, Nelson Mandela, Derren Brown, Gabby Logan, and Gerard Butler. Law changes organically in line with social needs. Today areas of study and practise like sports law, media law, immigration law, human rights, and international criminal justice are important, though they did not even exist as recently as 70 years ago.
Law reports themselves are brimming with interesting and unusual human dramas. The courts showcase a constant run of extraordinary bizarre cases spanning the centuries, and there are many colourful decisions from other jurisdictions. Recent examples have included whether you can sell your soul on the internet, a court order which forbade a man from laughing in public, a lawyer who tried to use quotations from the film The Hangover in arguing for his drunken client, and another lawyer who was caught using Wikipedia for his arguments.
Knowing the law and how laws are made is empowering. The American comedian Jerry Seinfeld said that a lawyer is "the person who knows the rules of the country." He said, "We are all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem, the lawyer is the only person who has read the inside of the top of the box."
We hope that these thoughts have provided you with some observations to reflect upon. Law has featured in many great novels and historical works and governs every aspect of our lives. Law, however, is not constant. It changes over time, and those changes are often driven by the passionate beliefs of individuals seeking to remedy inequalities to create a better and more equal society, and who might be seeking a remedy for the wrong they or others have suffered.
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Before moving on to the next section you should attempt Activity 1 which asks you to think about words you associate with law making.

Activity 1 Words associated with law making

Timing: Allow about 5 minutes

Take a look at Figure 2 and identify the words that you associate with law making. Make a brief note of the reasons why you choose those words.

Figure 2 contains words that are commonly associated with law making.
Figure 2 Words associated with law making
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Figure 2 contains words that are commonly associated with law making.

Figure 2 Words associated with law making
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Comment

There is no one answer to this activity. Words (and images) we associate with law making are affected by our own individual experiences. Law can be seen as very traditional and associated with expensive costs, lengthy delays and arguments. It is often associated with negative perceptions and its history does little to assist this.

Law, however, can be used as a driver or tool for change. It can be used to make a difference. For example, think about how law has been used to change the law on our right to vote in parliamentary elections and how this has been used to promote democracy. In 1831 Scotland had a population of around 2.3 million and 4,500 men were entitled to vote in parliamentary elections. In 2017 out of a population of 5.4 million people, more than 4 million have the right to vote in parliamentary elections. The change was achieved through Acts of Parliament (the Parliament of Great Britain, the UK Parliament and Scottish Parliament).

Acts of Parliament:

  • gradually extended the right to vote in parliamentary elections to the male population (and not based solely on property ownership)
  • created the secret ballot vote
  • extended the right to vote to the female population
  • more recently, altered the age at which you can vote in parliamentary elections from the age of 18 to 16 (in elections for the Scottish Parliament).

These changes in turn reflected changes in society and were driven by individuals passionate about the need for change, for fairness and equality.

In Section 2 you look at the institutions to which the state has given law making powers within the current legal system.