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

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4 Common law

Following the Acts of Union (the Scottish Parliament’s Union with England Act 1707 and the English Parliament’s Union with Scotland Act 1706 which created the Parliament of Great Britain) common law became an integral part of the legal system in Scotland. Precedent forms the basis of the common law and the doctrine of binding precedent is also known as the doctrine of stare decisis, which is Latin meaning ‘to stand by/adhere to decided cases’, i.e. to follow precedent. In other words, once a legal principle is decided in one case it should be followed in similar future cases.

The doctrine of binding precedent refers to the fact that, within the hierarchical structure of the courts, the decision of a higher court will be binding on a lower court. In general terms, this means that when judges try cases they will check to see if a similar situation has come before a court previously. If a precedent from a similar situation exists and it was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the legal principle established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow but will certainly consider it. You will consider a famous Scottish case which has set a precedent across the globe in Week 4.