bluuebunny/crossref_metadata_2025 huggingface dataset:
Composition Of The Government
Authors: Brazier Rodney
Published: November 2023

Countries which have had the advantage of introducing new constitutions have had to construct new departments of state to fulfill governmental functions. They have invariably given the political heads of those departments rather prosaic titles. such as Minister of Finance, Minister of Foreign Affairs. and so on. The British sys tem of government, however, is very much older than most, and has never been subjected to comprehensive reform. It is not surprising, therefore, that every British Government contains certain individuals who hold offices which are of great antiquity. Some of those offices are of less importance than they once were; others have come to be of central political importance. The object here is to provide a sketch of the development of those offices, followed by consideration of the development of the modem Cabinet.
Preparing For Office
Authors: Brazier Rodney
Published: November 2023

Before a politician can become a Minister his party must be in government or win power from the government. Accordingly, this Chapter is concerned with the ways in which a political party while in opposition prepares itself for office. In doing so it will examine the collective structures through which an opposition party resists the government of the day, and in doing so hopes to hasten its demise.1 By contrast the next chapter will be centred on the personal position of individual politicians who may be candidates for ministerial office, and will look at qualifications which are either necessary or helpful, and at disqualifications which may thwart them.
Conflicts Of Interest
Authors: Brazier Rodney
Published: November 2023

It was noted in an earlier chapter that some private financial interests possessed by Ministers (or potential Ministers) can disqualify them from ministerial office. This Chapter investigates much more fully the rules which seek to prevent Ministers being faced with conflicts of financial or other interests. There has been much public disquiet over the past decade or so that standards of conduct in public life have fallen sharply, and that some members of the Government, some MPs, and some others in public service have allowed a climate of sleaze to develop. In so far as those worries have been about ministerial misconduct of a sexual or political nature, they will be looked at in a later chapter. 2 This Chapter is concerned with financial interests a d the ways in which Ministers are enjoined to keep separate their private financial affairs and their public duties. The Chapter will begin with a brief look at the attempts which have been made over the years to maintain the propriety of Ministers’ financial conduct. It will then consider the general principles which Ministers are required to follow to that end, and will go on to examine in detail the main areas of potential conflict of financial interests which may face them, It would be unfair to expect a new Minister on joining the Government to sell all his investments so that his decisions in office would be taken without thoughts of personal gain; but Ministers cannot avoid making decisions which affect industry, commerce, and occasionally the financial markets, which in tum will affect their personal finances.
Ministers And The Law
Authors: Brazier Rodney
Published: November 2023

One way or another the law impinges daily on the work of Ministers. Their con tact with legal matters is crucially important to the constitutional position of Ministers, and four chapters will be devoted to analysing it. To put matters at their lowest, judges limit-quite properly, as part of their constitutional functions-what Ministers can achieve across the whole range of public policy, and the rights and duties of Ministers in relation to the law are accordingly of overarching practical significance for Ministers. Some Ministers have a direct departmental responsibility for aspects of the law or the legal system all Ministers are concerned with the constitutional relationship between the Government and the judges: those matters will be considered in this Chapter.1 Ministers have to oversee the translation of their policies into legislation, a process which will form the basis of Chapter 11. The legal powers enjoyed by the Government by virtue of the royal prerogative are analysed in Chapter 12.
Ministers And Legislation
Authors: Brazier Rodney
Published: November 2023

All departmental Ministers will want to take, and indeed will have to take. legislation through Parliament. To put things at their lowest, an Act initiated by a particular Minister will leave his mark on the statute book which may remain long after he has left office. And a Government can look back on its corpus of legislation as the main means through which it had sought to impress on the nation its version of the proper order of things. Some departments are responsible for more laws than others: in purely numerical terms, the Departments of Trade and Industry, Health, the Environment, Social Security, and the Home Office are usually near the top of the league in new legislation each session.2 A Minister who introduces a Bill into Parliament knows that, in all probability, it will be enacted thanks to the Government’s homogeneous majority in the House of Commons and the Government’s ability to get its legislative way in the end in the House of Lords.
Ministers’ Prerogative Powers
Authors: Brazier Rodney
Published: November 2023

The royal prerogative is of major significance in British constitutional law and practice. From the prerogative flow several of the most important powers possessed by Ministers. Decisions on peace and war; the deployment of the armed forces within the United Kingdom and around the world; the diminution of national sovereignty through the conclusion of treaties; the Prime Minister’s ability to appoint. reshuffle. and discard Ministers, to nominate members of the House of Lords, and to precipitate a general elcction2-all of those things are achieved through acts of the prerogative. More routine matters are also governed by it, such as the regulation of the civil service, the issue of passports, the grant of royal pardons, and many others. Statute law is, of course, of critical importance in the government of the United Kingdom. For more than a century governments have derived most of their powers from Parliament. Royal prerogative powers, however, have survived the encroachments of statute-not for the benefit of the Sovereign, but because they are essential if government is to be carried on.
After Office
Authors: Brazier Rodney
Published: November 2023

This Chapter analyses the position of former Ministers. It concentrates on their financial position on losing office, how they may deal with official papers which are in their possession on resignation (especially for memoir-writing purposes), what honours they may receive, and the prospects for ex-Ministers returning to government.
Council of Europe Human Rights Conventions and European Community Law: A Comprehensive Framework for Protecting the Rights of Migrants in Europe?
Authors: Cholewinski Ryszard
Published: November 2023

The international protection of the economic, social, cultural, political, and residence rights of migrant workers and their families in Europe is discernible on a number of levels, and it is necessary to distinguish the different regimes, organizations, and multilateral instruments which play a part in the protection of this vulnerable group.The European Community (EC), consisting of 15 member states,1 is the most advanced international regime applicable to migrant workers and their families. Free movement of labour within EC countries is a reality and brings with it a plethora of elaborate provisions aimed at the realization of full equality between nationals of member states.
Who Is a ‘Migrant Worker ‘ In Europe?
Authors: Cholewinski Ryszard
Published: November 2023

The question-‘who is a migrant worker? ‘-is given a broad interpretation by universal instruments specifically concerned with the protection of the rights of migrant workers and their families. Although some categories of migrant workers are not always covered, such as self-employed workers, students, trainees, and seafarers, what is significant about these instruments is that states parties are obliged to afford protection to allmigrants within their territories regardless of ratification by the country from which these persons originate. The principle of reciprocity, however, is dominant in European arrangements for the protection of migrant workers and their families and is evidenced by the narrower personal scope of the relevant COE conventions and the free movement regimes, such as the EC. Migrant workers and their families from non-European countries and in particular from the developing world as well as illegal migrants, who are legitimate subjects of protection under the ILO and UN conventions, are especially at risk from exploitation and abuse in a continent which is becoming increasingly anxious about their presence.
The Right to Equal Treatment and Non-Discrimination
Authors: Cholewinski Ryszard
Published: November 2023

The extent to which equality is realized between migrants and nationals is pro foundly connected to the protection of the rights outlined in the following chapter. Discrimination against migrant workers and their families manifests itself in all parts of Europe.1 This discrimination also takes on many forms. Two distinct seams are distinguishable: ‘systematic institutionalized discrimination ‘ ,2officially sanctioned by the State, and discrimination suffered by migrants at the hands of the general host population. The first vein of discrimination is interwoven into the fabric of the temporary migration system.
Conclusion: Towords Inclusion or Exclusion?
Authors: Cholewinski Ryszard
Published: November 2023

As the hypothetical situation described indicates, the gulf between these two groups of migrants is considerable and is a profound aberration in the continent which can best provide for the fulfilment of the rights discussed in this study. The powerful unifying forces at play in the European arena that aim to integrate national economic and political systems must not lose sight of the human factor. For it is the people and workers of Europe, regardless of their nationality or social status, who contribute to its development.
Relationship of the Hague Convention with Other International Instruments
Authors: Beaumont Paul R , Mceleavy Peter E
Published: November 2023

This study has shown how the 1980 Hague Convention stands alone in the realm of international family law. It eschews traditional private international law remedies and consciously avoids making any determination on the merits of any custody issue. At most one could say that it introduces an indirect jurisdictional rule by seeking to have wrongfully removed or retained children sent back to their place of habitual residence, but as has been seen, this is not an absolute rule.
Liability for Foreign Branch Deposits in English Law
Authors: Blair William
Published: November 2023

In the introduction to his classic series of lectures entitled Payment Obliga tions in Commercial and Financial Transactions,2 Professor Goode points out that of all contractual obligations, the duty to pay money is the most fundamental. In this essay, one aspect of that duty is considered, namely the liability of a bank at the place of its head office to repay deposits held at a branch abroad. The issue is considered from the perspective of liability, ignoring any jurisdictional problems: in other words, jurisdiction in the courts of the place of the head office is assumed. It is an issue on which there is little direct English authority, but a considerable body of American case law and academic writing.
Juggling with Norms: the Conflict Between Collective and Individual Rights Under Insolvency Law
Authors: Fletcher Ian F
Published: November 2023

The dedicatee of this volume is one of those rare figures in the world of the law whose reputation places them at the pinnacle of esteem among both academics and practitioners alike. In both communities, the name of Roy Goode and the subject of Commercial Law are virtually synonymous, to the extent that it is impossible to utter the one without immediately thinking of the other. Of the many illustrious achievements in a lifetime devoted to the forging of links between all constituencies who in some way involve them selves in the commercial aspects of law, special mention must be made of the unique vision and innovative daring which led him to conceive and establish the Centre for Commercial Law Studies at what was then, in 1980, Queen Mary College in the University of London.
Some Observations on the Law Relating To Preferences
Authors: Prentice D D
Published: November 2023

Creditors of a debtor are under no obligation to look after the interests of their fellow creditors. A creditor is entitled to pursue its own economic self interest and in a situation where the debtor has more than one creditor (the norm rather than the exception), the race goes to the swiftest. Although a debtor has an obligation to seek out its creditor, inevitably when a debtor is in financial difficulties, it will repay its debts in a strategic manner, since, if it wishes to survive, it will not be in its interests to adopt an even-handed approach in effecting repayment of its debts. Survival dictates that the importunate creditor, creditors threatening liquidation, or those with a commercial stranglehold over a company’s affairs,2 will be repaid before their passive, dilatory, or commercially weak brethren. There is nothing legally wrong in pursuing this policy of survival and indeed if the strategy succeeds it will probably be for the benefit of all creditors since at the end of the day they will be repaid. But once the debtor goes into insolvent liquidation, the picture changes and the law precludes the debtor from diluting the pool of assets available for creditors by paying off the debts of a selected creditor or a selected group of creditors.
Commercial Morality and Public Policy as ‘Principles’ of Corporate Insolvency Law
Authors: Tomasic Roman
Published: November 2023

This article seeks to grapple with a number of basic principles of insolvency law which are applicable to attempts to manipulate such laws through such devices as so-called ‘phoenix companies’ and ‘strategic insolvency’. That it is important to take a principled approach to corporate insolvency is clear, although this is not always evident from the ad hoc nature of the corporate insolvency law reform process. The need for a principled approach has been well illustrated by Professor R. M. Goode in his masterly text, Principles of Corporate Insolvency Law. In his Preface to that work, Goode noted that corporate insolvency law ‘encompasses a wide range of complex, not to say controversial, policy issues which are only now beginning to receive in this country the attention they deserve’.
Environmental Justification for National Restrictions
Authors: Ziegler Andreas R
Published: November 2023

As has been shown, the Community principle of free movement of goods, in particular through the Court’s broad interpretation of Article 30 under the Dassonville formula, sets very important restraints on national measures for the protection of the environment. A great number of domestic measures risk being incompatible with Community law even if they are applied in a nondiscriminatory way. The Treaty itself, however, contains an exception from the prohibitions in Articles 30 and 34. Under Article 36 national measures for the protection of the life and health of humans, animals, and plants, as well as for other selected reasons, are justified in spite of their infringement of the free movement of goods principle.
Liturgy, Order and the Law
Authors: Bursell Rupert D H
Published: November 2023

Liturgy is concerned with the worship of God. Yet in spite of that - some might say because of that - it is necessary to have rules. It is sometimes mistakenly thought that these rules are archaic and therefore irrevelant; in fact the rules and their interpretation have changed considerably in recent years, so much so that there is now widespread concern among the clergy and church administrators about the degree to which Liturgical Law is being correctly understood and applied. This book has a straight forward aim which is to describe and analyse a wide range of Ecclesiastical Law topics which are scarcely dealt with in other books on Church Law and Ecclesiastical Law. As such it provides not merely a statement of legal principles but also a discussion in-depth of the relevant law and its developments. The style is precise and easy to read. The authorities and foot-notes are comprehensive. Arguably it presents the most comprehensive coverage of Ecclesiastical Law published in modern times.
Services in General
Authors: Bursell Rupert D H
Published: November 2023

Other than in relation to occasional services, the choice of service and lectionary is primarily one for the minister of the parish and the parochial church council. Toe choice of occasional office is for the officiating minister, save that appeal may be made to the diocesan bishop. Particular versions of the Bible are authorised for use.

The diocesan bishop may give directions in relation to what services are to be celebrated.

All worship must glorify God and edify the congregation; the congregation must participate reverently. Many ceremonies that were illegal are now lawful, such as processions, anointing with oil, the ceremonial use of candles, incense and holy water and the ceremonial ringing of bells.
Morning and Evening Prayer and A Service of the Word
Authors: Bursell Rupert D H
Published: November 2023

By the end of the last century doubts had arisen as to whether the services of Morning Prayer, the Litany and Holy Communion according to the Book of Common Prayer might be used separately. These doubts were resolved by the Act of Uniformity Amendment Act 1872, and, in spite of its repeal, it is clear that they may still be used separately. Indeed, this is indirectly confirmed by rule 2 of the Rules to Order the Service in the Alternative Service Book.
Occasional Services
Authors: Bursell Rupert D H
Published: November 2023

As has been seen it is not entirely clear what services are known as the ‘occasional offices’ but The Oxford Dictionary of the Christian Church gives the following definition:

Occasional Offices. In the [Book of Common Prayer], the services which in distinction from the constant offices of the Church (viz. Mattins and Evensong and the Holy Communion), are used only as occasion demand. They include Baptism, Confirmation, Matrimony, Visitation of the Sick, Communion of the Sick, Burial of the Dead, and the Commination.
The New Trust: Obligations without Rights?
Authors: Matthews Paul
Published: November 2023

In the beginning, there were people. Trusts did not come into existence because animals, or trees in California, complained to the Chancellor that property given to trustees for their benefit was being mis-applied. They were called into existence because people complained, because people presented petitions, because people pleaded for justice before the Chancellor as the keeper of the King’s conscience. Animals and trees could not do that. Nor can they still, at any rate not in English law.
Self-dealing Trustees
Authors: Justice Hon. MR , Mcpherson B H
Published: November 2023

In Tito v. Waddell (No 2), Sir Robert Megarry V-C distinguished between two rules applicable to trustees. The first, which he called the ‘selfdealing rule’, is that ‘if a trustee purchases trust property from himself, any beneficiary may have the sale set aside ex debito justitiae, however fair the transaction.’ The second, labelled the ‘fair-dealing rule’, is that ‘if a trustee purchases his beneficiary’s beneficial interest, the beneficiary may have the sale set aside unless the trustee can establish the propriety of the transaction, showing that he had taken no advantage of his position and that the beneficiary was fully informed and received full value.’
Moulding the Content of Fiduciary Duties
Authors: Austin R P
Published: November 2023

In 1991 P. D. Finn J began his essay on the commercial application of fiduciary principles by remarking that there were five questions of moment in contemporary fiduciary law.1 They were: first, what are the criteria for finding that a fiduciary relationship exists; secondly, how and to what extent do fiduciary principles apply in commerce; thirdly, how does fiduciary law regulate multi-function business and professional enterprises; fourthly, what kinds of monetary compensation are available for breach of fiduciary duty; and fifthly, what role does fiduciary law have in regulating the actions of government?
Equity’s Reaction to Modern Domestic Relationships
Authors: Morris Anthony J H
Published: November 2023

The evolution of equity, particularly over the last two centuries, has predictably responded to the social and economic circumstances which prevailed in England-and subsequently in other common law jurisdictions-for the greater part of that period. Of individual litigants, and particularly of those litigating in courts of equity, the great preponderance were persons of financial substance. Whatever may have been the situation amongst the less advantaged members of the community, traditional social orders were firmly rooted amongst the wealthy and privileged.
Professionals as Competing Monopolists
Authors: getzler Joshua
Published: November 2023

Professional services are provided on a contractual basis; but the common law ascribes non-contractual duties sounding in tort and trust to augment these contractual relationships. In a world increasingly predicated on free contract as an organizing idea, the gnawing problem bothering our writers on professional negligence is how to justify the continuation and even extension of tort duties to highly contractual professional-client relationships. Even wider: judges and jurists find they must justify how the law can impose communal norms on professionals outside any patent contract with their clients, especially where the terms of those professional duties go beyond anything the parties actively considered—or could have considered—when designing and forming the relationship. White v Jones is a stark modern example of the conundrum: a solicitor was made the guarantor of an inheritance for intended heirs with whom he had never treated. The disappointed heirs fell within the range or ‘proximity’ of the solicitor’s professional duties because it was reasonable for them to depend on him as a responsible expert, despite the absence of contractual nexus, The ‘privity fallacy’ which was demolished in Donoghue v Stevenson is only the most celebrated example of perennial troubles on the contract-tort border. There is constant insurgency on those borderlands, and professional negligence is but one example.
Introduction
Authors: Carruthers Bruce G , Halliday Terence C
Published: November 2023

The goal of rescuing business courses through both the British and American reforms. From the outset of reforms to their enactment, politicians and professionals repeat the refrain that a new bankruptcy law should help “save business,” give companies a “second chance,” rehabilitate companies unfortunate enough to be caught by an economic downturn or sudden cash-squeeze, and reorganize companies whose finances or debt-structure have become unmanageable.
Retribution, Proportionality, and Moral Luck in Tort Law
Authors: Cane* Peter
Published: November 2023

According to traditional wisdom, tort law is about compensation, not punishment. Even as applied to the assessment of damages, this pithy shibboleth misses an important part of the truth, if only because tort law recognizes disgorgement damages and punitive damages as well as compensatory damages. But applied more generally, the dictum is positively misleading. Tort law compensates people for harm, but only if some other person can be said to be responsible for that harm in one of the senses of ‘responsible’ recognized by tort law in its heads of liability. Every cause of action in tort is a two-sided affair concerned with the interests of the plaintiff on the one side and with the conduct of the defendant on the other.
The Collateral Source Rule Thirty Years On
Authors: Luntz* Harold
Published: November 2023

In 1966 John Fleming published ‘The Collateral Source Rule and Loss Allocation in Tort’. He later refined his analysis of the issue and extended the jurisdictions which he encomrassed in a chapter of the International Encyclopaedia of Comparative Law. One aspect, recovery from a tortfeasor which is insufficient to reimburse both the victim and the collateral source in full, was elaborated in a case note which he wrote in 1974.
States of Emergency in the Inter-American Human Rights System
Authors: Fitzpatrick Joan
Published: November 2023

Among the members of the Organization of American States (OAS), the association between human rights abuse and states of emergency has been strong. Several characteristics of the legal and political culture contribute to this phenomenon-periodic seizures of power by the military from civilian authorities, formalistic legal systems with weak traditions of separation of powers, and economically and racially polarized societies producing insurgent or terrorist groups. Human rights catastrophes occurred so frequently that the very concept of a ‘state of siege’ took on a Latin American countenance during the 1970s and 1980s.
Policing as Risk Communications
Authors: Ericson Richard V , Haggerty Kevin D
Published: November 2023

As was discussed in the introduction, this book analyses how the police are organized in terms of risk communications to and from other institutions such as insurance companies, regulatory agencies, financial institutions, health and welfare agencies, and motor vehicle agencies. Policing is a matter of responding not only to individual demands for service but also to institutional demands for knowledge about risk. The police are part of interinstitutional networks in which claims to expertise pertaining to a given type of risk and the need for knowledge about that type of risk among the relevant institutions determine the police jurisdiction in the given field.
Policing, Risk, and Law
Authors: Ericson Richard V , Haggerty Kevin D
Published: November 2023

Sociology has been centrally concerned with the problem of order. This concern entails a focus on whether behaviour is deviant and how deviance is controlled. Deviance is defined as a straying from the normal, which encompasses not only serious forms of abnormal behaviour such as criminal acts but also violations of organizational procedures and common sense knowledge. There traditionally has been a strong moral element in designations of deviance: deviance is wicked, bad, sinful, a violation of moral order.
Submarines
Authors: Roosevelt President Franklin D
Published: November 2023

This chapter analyses the law that regulates the use of submarines in armed conflict. It does not focus on the particular weapons carried on submarines, such as deck guns or torpedoes, but concentrates on the submarine itself as a weapons system. The submarine has long been recognized, and regulated, as a weapons system per se. This is due in part to the submarine’s ability to approach by stealth which allows the most efficient use of whatever particular weapons are available. Holistic regulation also exists because weapons deployed from submarines tend to be under human control for a longer period of time than when deployed from other naval platforms.
Comparing Legal Aid Spending: The Promise and Perils of a Jurisdiction-Centred Approach to (International) Legal Aid Research*
Authors: Tata Cyrus
Published: November 2023

Public expenditure has become the key battleground where legal aid policy is contested (see e.g. Goriely, 1997b; Moorhead, 1998). Research examining current and projected costs of policy (both within and between jurisdictions) inevitably commands attention in government circles. Although the promise of comparing costs within and between jurisdictions seems immense, care needs to be taken in interpreting what the comparisons actually mean; and it is imperative that attention is paid to issues underlying comparative methodology. This Chapter reflects on some of the key issues in comparing criminal legal aid expenditure. It arises from a research study which compared criminal legal aid expenditure in three European jurisdictions. This paper first describes the origins, background and objectives of the study before reporting some of the main findings. The Chapter proceeds to examine key issues in comparative research of this nature. It uses the inter-jurisdictional study and its findings as a means of discussing the methodological issues underlying ‘comparative’ research.
Quality Legal Services: The Dog That Did Not Bark
Authors: Paterson Alan , Sherr Avrom
Published: November 2023

One of the most striking developments in the international arena of legal services in the past decade relates to the quality of work done by legal aid lawyers and how this has become a topic of central concern. It is a curious phenomenon, not simply because the concern for quality has been such a latecomer to the legal services arena, nor again because its global manifestation has varied so widely between jurisdictions with similarly developed legal aid programmes, but also because for much of the time the enthusiasm for the quality pursuit has come from without the profession.
Minors ‘ Privacy The Courts And Limits On Freedom of Expression
Authors: Cram* Ian
Published: November 2023

This article takes as its subject the conflict between free-speech claims advanced by the media and claims to privacy advanced on behalf of minors who find themselves coming under the glare of media atten-tion. It will be argued that, at important times, the courts have failed to probe the validity of free-speech justifications offered by the media with the result that weak free-speech claims involving conduct which has been extremely intrusive of children ‘s privacy interests have prevailed. It would be wrong however to characterize English law as wholly unwilling to recognize the validity of children ‘s privacy interests. Sometimes the law does recognize the overriding nature of a child/young person ‘s privacy claim. The first part of this article examines some current privacy protection for minors, including those found in the law relating to reporting restrictions in youth court and adult court proceedings. Also considered are codes of practice regulating the conduct of broadcasters and journalists which offer in the main forms of extra-legal protection from intrusive conduct by members of the media. At the level of international law, the UN Convention on the Rights of the Child which was ratified by the UK Government in 1991 has placed additional obligations on signatory states to uphold the privacy rights of children. The second part concerns itself with judicial attitudes towards minors ‘ privacy as revealed in some recent rulings.
Preparing For The Information Society: Lessons from Canada
Authors: Hitchens* L P
Published: November 2023

Writing of plans for the information society, Melody has commented that national governments and international organizations have been producing policy statements and reports of a visionary but often un realistic nature. Certainly the European Community could fit this description. In its commitment to the information society, it fore sees the outcome as producing enhanced competitiveness, increased employment opportunities, and improved living conditions.2 As Rasaiah and Newell have written: the ‘information society ‘ has become a convenient peg on which ‘... a host of European initiatives which will affect the press and broadcasters ‘ can be hung.3 Canada too might be added to Melody ‘s list. It has recently engaged in a lengthy policy-making process into the implementation of the information society (or information highway, the term adopted in Canada) for Canada. In the resulting documentation and policy statements, Canada also refers to the promise of the information society in grand and optimistic terms.
Basic Obligations
Authors: Penner J E
Published: November 2023

The law, and therefore legal practice, is shaped by the way that lawyers categorise the world. As with understanding and employing any system of thought, to understand law requires understanding the basic categorical dis tinctions which organise it. Being able to ‘think like a lawyer’ is, in part, being able to characterise situations of social conflict as legal problems in the right way, as a ‘tort’ problem, for instance, or as a problem raising ‘property’ or ‘contractual’ issues. It is therefore to adopt a particular perspective which divides cases of social conflict into a limited number of well-known kinds. This conceptual apparatus also determines in large part the teaching of law. The subject matter of law is traditionally carved up for study along the lines of the recognised substantive branches of law, such as contract law, and these subjects are generally taught as quasi-independent realms of the legal system.
Social Policy Toward Intellectual Disabilities in the Nineteenth and Twentieth Centuries
Authors: Braddock David L , Parish Susan L
Published: November 2023

The purpose of this chapter is to describe the rise over the past two centuries of the asylum model of care for people with intellectual disabilities and the substantial replacement of that model with contemporary family, community, and rights-based models of support. Although the emphasis in this chapter is primarily on developments in North America and Europe, we will also review the recent and widespread adoption of international disability rights initiatives by the United Nations and numerous countries throughout the world. This chapter is based on a more comprehensive history of disability by the present authors, which focused on social policy toward disability generally from antiquity to the enactment of the Americans with Disabilities Act.
The Shaping Of Charity Law
Authors: Luxton Peter , Hill Judith
Published: November 2023

Good works that would today fall within the popular meaning of charity are 1.01 recorded in many societies in the past. Some acts of charity —particularly those which are spontaneous and direct —are manifestations of the better side of human nature and are no doubt as old as mankind itself With such acts the law need not concern itself; indeed, such acts of benevolence may take place even before any form of society, let alone any recognizable legal system, has evolved. No legal machinery is needed to enable a donor, moved perhaps by compassion, to put alms into the hand of the beggar; no law has to be passed in order that a Good Samaritan may come to the aid of the injured traveller lying by the roadside. Such gifts or acts are by their nature transient and in themselves complete: they give rise to no continuing rights or obligations:
Disclaimer Of Property And Ex GratiaPayments
Authors: Luxton Peter , Hill Judith
Published: November 2023

A charity cannot as a general rule apply its property other than for its wholly and 18.01 exclusively charitable objects. A charity is permitted to apply its funds in ways which are not themselves charitable if this is ancillary to the attainment of its charitable objects; and the court or the Charity Commissioners may authorize the charity to make payments which are expedient in the interests of the charity.1 A charity might be justified in making a voluntary payment which is reasonably incidental to the carrying on of its charitable purposes: it may, for instance, be good business for a charity to give a member of its staff on retirement a pension in excess of that to which heor she is contractually entitled. Where the charity trustees are unsure as to whether a proposed payment may lawfully be made within the terms of the charity’s governing instrument, they may apply in writing to the Charity Commissioners for their opinion or advice.
Towards a Systems-Based Approach: Voluntarism, Legislation, or Incentives?
Authors: Gunningham Neil , Johnstone Richard
Published: November 2023

Accepting that a systems-based approach to health and safety improvement is desirable, then how might it best be achieved? In broad terms, policy makers wishing to encourage such an approach are faced with three options: leave it to the market (i.e. rely on the enlightened self interest of enterprises in voluntarily implementing management systems); require by law that all or some enterprises implement SMSs (or at least make it optional for them to do so); or provide incentives (including subsidies) to enterprises to implement SMSs but with no element of compulsion. Each of these options will now be examined.
‘Philosophical Foundations of the Common Law’: Social not Metaphysical
Authors: Lacey Nicola
Published: November 2023

In The Concept of Law, H.L.A. Hart claimed to provide a theory of law based on two distinct methodologies: analytical jurisprudence and descriptive sociology. Yet little more than a decade later, Tony Honore, in his contribution to the Second Series of the Oxford Essays in jurisprudence, was able to portray the jurisprudential scene as a contest between positivists and natural lawyers, with sociologists of law merely watching from the sidelines. In Honore’s ironic observation, legal theory was a game the rules of which the sociologists had never managed to learn. This conception of the sociology of law as engaged in a fundamentally different – external rather than internal – form of legal theory now commands a wide consensus among legal theorists. Just as Honore’s sociologists watch the game from the spectators’ gallery, Dworkin’s social scientists observe law’s empire from beyond its frontiers. What is more controversial is the implication of such metaphors-and a claim which might be thought to be implicit in Hans Kelsen’s assertion that the sociology of law inevitably presupposes normative jurisprudence – that analytical legal philosophy enjoys a certain intellectual priority. In the image of the sports stadium it is, after all, the spectators who have an interest in watching the players: while the players may enjoy the applause or wince at the jeers of the spectators, they do not need to pay close attention to them. In Dworkin’s imperial vision, it seems not unduly tendentious to suggest that sociologists of law are implicitly represented as inhabitants of underdeveloped colonies.
Towards a Theory of Contract
Authors: Smith Stephen A
Published: November 2023

A complete theory of contract law should answer two questions. The first is an analytic question about the nature of contractual obligation. What sorts of events give rise to a contractual obligation and what is the content of the obligations thus created? In particular, how are those events and obligations similar or dissimilar to the events and obligations that are the focus of tort law, unjust enrichment law, or equity? Where, in other words, should contract be situated on the map of private law? The second question is a normative or justificatory question: how, if at all, can contract law be justified? What is the moral basis, if any, for enforcing contractual obligations? Do rights, utility, or something else-or nothing else-underpin contract law? The analytic and normative questions are related. The justification for contractual obligation turns in part on what sort of a thing a contractual obligation is. And-though the point is more complex and controversial-our understanding of the nature of contractual obligations is determined in part by our views on what sorts of obligations are, or at least might conceivably be, legitimately enforced.
Objectivity, Subjectivity, and Incomplete Agreements
Authors: Endicott Timothy A O
Published: November 2023

What is a court’s role in adjudicating contract disputes? I will approach that question in two sections that deal with objectivity and incompleteness in agreements. I will assume that the central purpose of the law of contract is to enable people to enter into certain sorts of legally binding agreements. That assumption leads to the puzzles which I will address. It might seem that the court’s role in resolving a contract dispute is just to hold the parties to the resolution that they intended. The court should ask, ‘what outcome to a dispute like this did the parties intend?’ Where the parties had no intention, or had different intentions, the court’s task is either to find that there is no contract (if the issue is fundamental) or to imagine some counterfactual intention (if the issue is subsidiary to a set of shared intentions that is substantially complete).
The History Of The Equitable Doctrine Of Marshalling Of Securities
Authors: Ali Paul A U
Published: November 2023

The purpose of this chapter is to provide the foundations for the discussion, later in this text, of the competing juridical views as to how marshalling should preserve the priority-rankingof junior creditors, and the conditions and limitations which presently govern the application of marshalling. In contrast to the other cases discussed in the body of this chapter, Titley v Davies ‘1 was not concerned with the marshalling rights of a junior creditor. It was, instead, concerned with the ability of a junior creditor, having taken an assignment of the senior security, to ‘consolidate ‘ the senior and junior securities.12 On the debtor tendering payment of the senior debt, the doctrine of consolidation permitted the junior creditor to refuse to release the asset that was encumbered by only the senior security; instead the junior creditor was entitled to decline redemption of the senior security until the debts secured by both the senior and junior securities had been discharged.
Marshalling Of Securities And The Common Debtor Rule
Authors: Ali Paul A U
Published: November 2023

A junior creditor cannot marshall the security held by a senior creditor, simply because its security ranks behind, and is narrower than, the senior security. Should the senior creditor enforce its security to the detriment of the junior creditor, the junior creditor will as a general rule only be entitled to marshall the senior creditor if the requirements of the ‘common debtor rule ‘ have been satisfied.
Exceptions To The Common Debtor Rule
Authors: Ali Paul A U
Published: November 2023

This chapter is concerned with the sole situation in which it is recognised that English law will not insist upon strict compliance with the requirements of the common debtor rule, viz. where the assets subject to the senior security are separately owned by the debtor and a surety of the senior debt.1 This is the ‘surety exception ‘ to the common debtor rule.
Marshalling Of Securities And The Requirement Of Proprietary Securities
Authors: Ali Paul A U
Published: November 2023

This chapter is concerned with the nature of interests that are required for a marshalling claim and that may be the subject of such a claim. Two cases, in particular, are relevant to a determination of these issues. The first, Webb v Smith, is said to establish the requirement that, in order for marshalling to be available, both the senior and junior creditors must hold securities which confer upon them proprietary interests in the common debtor ‘s assets.
Marshalling Of Securities And Third Parties
Authors: Ali Paul A U
Published: November 2023

As a general rule, under English law, a junior creditor ‘s right to marshall the senior security is capable of being enforced not only against the debtor1 but also againsi: the majority of third parties claiming under the debtor. The junior creditor ‘s marshalling rights will prevail over secured creditors who rank behind the junior creditor* 2 and all unsecured creditors.3 Those rights will also prevail over the trustee in bankruptcy, receiver or liquidator of the debtor4 and the debtor ‘s real and personal representatives.5
Covenants Against Marshalling And Other Contractual Constraints
Authors: Ali Paul A U
Published: November 2023

The terms on which a senior creditor provides finance to a debtor are likely to include, as a ‘boilerplate ‘ clause, a covenant that purports to oust the right of other creditors to marshall the senior security. Such covenants are, however, based on a misconception as to how marshalling operates under English law.
Regulation And Deregulation
Authors: McCrudden Christopher
Published: November 2023

The chapters of this book are revised versions of papers presented at the Oxford Law Colloquium, held at St John ‘s College, Oxford in March 1998. The theme of the conference was regulation and deregulation. The Colloquium, organised by the Faculty of Law of the University of Oxford and the Norton Rose MS Group, was intended to be a meeting place for academics and practitioners (both legal and policy) interested in regulation, and we were fortunate that so many of those taking part were distinguished in the area of regulation. Some of the rich discussion which these papers generated is reflected in the revised papers and in the introductory chapter.

The 1998 Colloquium was the last one which Professor Roy Goode attended as the Norton Rose Professor of English Law. He was instrumental in the establishment of these colloquia, and this seems an appropriate occasion on which to mark his retirement from the Chair but not, we hope, from academic life, to which he has so singularly contributed. His scholarship, teaching, guidance, inspiration and plain good sense would be sorely missed if he were to retire in any but a purely formal sense.
The New Lease
Authors: Haley Michael
Published: November 2023

The most significant aspect of Part II of the Landlord and Tenant Act 1954 is, 9.01 arguably, that which deals with the new lease and the form it will adopt. It is on renewal that the delicate balance between interventionism and the free market is attempted. Nevertheless, the primary purpose of the Act is to encourage agree-ment between the landlord and the tenant as to the grant and the terms of the new lease. This agreement may be comprehensive or might be limited to terms, with- out acknowledgment of the tenant’s right to a new lease.1 The statutory rights afforded to the tenant are, thereby, designed to ensure that the parties negotiate upon a more equal footing.
Individual Action, Collective Action and Workers’ Strategy
Authors: Birnbaum Pierre
Published: November 2023

Paradoxically, Lenin and Olson, proceeding from diametrically opposed theoretical positions, reach the same conclusion concerning the working class’s disinclination to commit itself to a movement of collective mobilization. This identical finding is explained in opposing ways. For Lenin, it is the dominant ideology in the service of the bourgeoisie which encourages workers to prefer automatically the raising of their standard of living, and which, by alienating them, deflects them from any true consciousness. This situation thus necessitates the creation (in capitalist countries too) of a party of professional revolutionaries who ‘from the outside’ will detonate this collective mobilization of the working class, which otherwise would be extremely improbable.