bluuebunny/crossref_metadata_2025 huggingface dataset:
More mileage in disclaimers
Authors: Bragg R. J.
Published: April 2006

It is thirteen years since the passing of the Trade Descriptions Act 1968 and case law has now largely determined the effect of the major provisions of the Act. There is little doubt statistically that the Act has had its primary impact upon the motor trade, and that the most prosecuted offence is that of the ‘clocked’ car. There is a lot of additional money to be made if a car is sold with a low mileage rather than with a high one. A high proportion of new cars are supplied to companies who keep these fleet vehicles for about two years and then sell them, often through the large motor auctions, whereby they come into the hands of the motor trade. These fleet cars will invariably have travelled in excess of sixty thousand miles. Too many of these cars are handled by several dealers and then are displayed for sale to the public with a mileage shown in the region of twenty to thirty thousand. All that can be said in such a case is that someone, somewhere along the chain of distributors, has fraudulently turned back the vehicle odometer but it is usually very difficult to prove who did it.
The Newspapers, Printers and Reading Rooms Repeal Act 1869: a case for repeal?
Authors: Manchester Colin
Published: April 2006

If the reader cares to look at the foot of the back inside cover of this journal he will observe the statement ‘Printed by Kent Paper Company Ltd., London and Ashford, Kent’. He should also find if he looks at any other book or periodical that this too will contain the name of the printer, sometimes as with Legal Studies on the back page and sometimes as, for example, with the Law Quarterly Review and Smith's The Law of Theft on one of the front pages. Why is it that the name of the printer appears thus on publications? The answer is not, as perhaps one may expect, self-advertisement by the printer but because the law so requires.
The changing face of private law: doctrinal categories and the regulatory state
Authors: Simmonds N. E.
Published: April 2006

Legal scholars over the last 25 years or so have experienced a growing sense of dissatisfaction with the traditional classifications that segment university curricula and legal textbooks. Contract and tort, for instance, are felt to be not so different after all. The intimate historical links between the tort of negligence and the action of assumpsit may be seen as reflecting the realitics more truly than the later doctrinal separation of voluntarily and involuntarily incurred obligations. The growing impact of public law on the exercise of privatc rights, and the interweaving of public and private law that runs through an evcn greater portion of the legal system, cause still more fundamental doubts.
The nature of legal reasoning: a commentary with special reference to Professor MacCormick's theory
Authors: Wilson Alida
Published: April 2006

‘Legal reasoning’ and its character have been under discussion for some time: the character, that is, of the reasoning which judges, advocates, solicitors, and others engaged in matters of legal practice and decision must pursue if their conclusions are to claim validity. Do they – or should they – reason on lines dictated by the laws of formal logic, i.e. deductively in the strict sense of that term? Or must we say that judges, and lawyers in general, cannot reach or justify conclusions on deductive lines, and that in fact – and quite legitimately – they use, in establishing and justifying conclusions, a mode of reasoning which is not deductive but has a quite different determinate character of its own? If so, what is that determinate character? Does it provide criteria whereby we may appriase legal argumentation in particular instances as valid or invalid or, at least, as rational or failing in rationality?
The nature of legal reasoning: a brief reply to Dr Wilson
Authors: MacCormick Neil
Published: April 2006

Both Dr Wilson and Dr Patricia White in another review have made sound and telling criticisms of my efforts in Chapter 2 of Legal Reasoning and Legal Theory at translating legal argument into the technical forms of logic. At the time of writing the book, I was apprehensive about the likely resistance at least of lawyers and law-students to any excessive resort to technicalities of symbolism; it therefore seemed wise to simplify matters by ignoring differenees between propositional logic and the logic of predicates and of relations, thc latter being at least ostensibly the more complex and difficult, albeit more rigorously fitted to the subject matter. I hoped that my perhaps unduly cryptic footnote 5 on page 28 (noted by Dr Wilson at her footnote 29) was a sufficient acknowledgment of the technical difficulties which I was thus sweeping under the carpet. Like Dr White, but unlike Dr Wilson, I took the view that my main point about the deductive character of the arguments I had in view was unaffected by the technical infelicity from a logician's point of view of my resort to the symbolic forms of propositional logic.
The demise of drunkenness
Authors: Stannard John E.
Published: April 2006

In this article I hope to be able to demolish a number of false assumptions that are to be found in textbooks on Criminal Law. These are the assumption that intoxication (whether voluntary or involuntary) is a ‘defence’; the assumption that, when D raises in evidence that he was intoxicated, special rules come into play; and the assumption that there is a difference between the legal effect of voluntary and involuntary intoxication. Whereas these assumptions may have been justified in the nineteenth century or even a few years ago, it will be shown that recent cases have tended more and more to assimilate the rules on intoxication to the general law, so that by now the differences have virtually vanished. If this is so, it might even be possible to eliminate a chapter from future editions of Criminal Law textbooks, and to save students a very troublesome week of study.
‘Salaries’ in the Apportionment Act 1870
Authors: Matthews Paul
Published: April 2006

Where a contract of employment is brought to an end during, rather than at the end of, a working period, the question arises of the employee's right to be paid for the part-period worked. If the termination has come about because of the employer's breach of contract, it is not difficult to see that the employee will at least have a claim for damages for breach, which must take into account what the employee has lost by not being allowed to work up to the end of the period in question.
Freewill, determinism and criminal justice
Authors: Norrie Alan
Published: April 2006

‘Supposing, then, that determinism is true – and surely many intelligent and well-informed people believe that it is – how can we any longer uphold the notion of responsibility in our courts of law?’

A. Kenny.

The substance of this article revolves around Kenny's rhetorical question. It is a widely held view among lawyers and legal philosophers that the idea of criminal justice involves the presupposition of the freedom of the will, but there are good grounds for accepting some version of determinism as a working hypothesis to explain criminal behaviour. Judges themselves on occasion do this. Unless it can be shown, therefore, that determinism is either compatible with free will, or is itself an incoherent doctrine, the whole rationale of the criminal law as a form of social control stands exposed to criticism.
Forum non conveniens - now we are ten?
Authors: Briggs Adrian
Published: April 2006

Ten years ago, the House of Lords decided the case of The Atlantic Star. Hitherto it had been clear beyond argument that English law denied the idea that an action brought in English courts could be stayed on the ground (however the criteria be formulated) that a foreign court was more suitable for the case to be adjudicated in. That case, however, touched off the process of reconsideration: a process which continues today, and which shows no clear signs of settling down to a coherent and well-founded body of law applicable to motions for stays. It is the purpose of this paper to examine the progress which has been made so far, and to demonstrate that it does contain the raw material from which an entirely satisfactory restatement of English law could be made.
Strict liability in Commonwealth criminal law
Authors: Peiris G. L.
Published: April 2006

It has been observed justly that few legal doctrines have given rise to so vigorous and sustained a conflict of judicial attitudes as the concept of strict penal responsibility. The theory of mens rea which preceded the origins of the common law, is ingrained in English criminal jurisprudence. An English court has asserted that ‘It is contrary to the whole established law of England (unless the legislation on the subject has clearly enacted it) to say that a person can be guilty of a crime in England without a wrongful intent’. In circumstances involving technical guilt bereft of moral blame English judges have looked askance at invocation of the criminal process. The American Law Institute has recently declared that ‘No principle is more broadly accepted than that the criminal law, involving as it does both punishment and condemnation, should be concerned with conduct that is morally reprehensible or culpable’.
The Society of Public Teachers of Law – the first seventy-five years
Authors: Pettit Philip H.
Published: April 2006

I shall not attempt to give more than the briefest summary of the founding of the Society, for the story has already been ably told by someone with first-hand knowledge, namely, A. D. Bowers, Emeritus Member, Extraordinary, of the Society, whose account appears in the June 1959 issue of the Journal. It is not clear whether the originator of the idea of the Society's foundation was Edward Jenks, then Principal and Director of Legal Studies to The Law Society and later first holder of the Chair of English Law at the London School of Economics, or Henry Goudy, Regius Professor of the University of Oxford. What is clear, however, is that Jenks was the one who really got things moving. Indeed in the early days the Society was apparently sometimes referred to as ‘Jenks’ Trade Union’, to Jenks’ disgust.
Frustration and the question of foresight
Authors: Hall Clifford G.
Published: April 2006

The purpose of this paper is to explore further some remarks of Professor Treitel, in his Law of Contract, in relation to the extent to which a foreseen or foreseeable event may preclude the operation of the doctrine of frustration and to offer an alternative role to foresight than is suggested by Trietel's analysis. A consideration of foresight is of more than passing interest since it touches upon the foundation of the doctrine, the object of which, it is said, is ‘to find a satisfactory way of allocating the risk of supervening events.’
Claims in tort by owners or purchasers of defective property
Authors: Todd Stephen
Published: April 2006

The well known dictum of Lord MacMillan in Donoghue v Stevenson that ‘the categories of negligence are never closed’ is illustrated in striking fashion by a series of recent cases concerned with the liability of a builder or manufacturer for financial loss suffered by an owner or purchaser of defective property. Junior Books Ltd v Veitchi Co Ltd, a decision of the House of lords, is the latest and arguably the most significant of these cases. The effect of the decision, at least in England, has been to assimilate to a large extent the principles governing liability for negligent words with those governing negligent conduct.
Philosophy, ideology and rights
Authors: Campbell T. D.
Published: April 2006

It would be the height of naivety to suppose that philosophical analysis of contested concepts could, of itself, result in the reconciliation of competing ideologies or achieve anything very much by way of removing the underlying divergencies of vested interests which express themselves in social and international conflict. The ‘correct’ analysis of the concept of rights is not a panacea for world peace.’ On the other hand, conceptual confusion can generate unnecessary misunderstandings and lead to misplaced disputes which are hardly conducive to the search for such common ground as exists between conflicting groups and nations and it is surely a stage on the way to such agreement as is possible to identify the genuine as opposed to the merely linguistic areas of disagreement, even if this may produce nothing beyond the agreement to differ.
Historical jurisprudence
Authors: MacCormack Geoffrey
Published: April 2006

While it is no doubt possible to subsume many kinds of inquiry under the head of historical jurisprudence one should certainly distinguish between two rather different kinds. First there is the kind that takes a particular legal notion or idea as it becomes crystallised at some point in a country’s legal history and traces its subsequent history in legal thought, investigating its diffusion and influence and assessing its continuing utility. Such an inquiry is concerned only with the facts in the sense of the ascertainment of what has actually happened. It is in no degree speculative; nor does it seek to investigate the relationship between social conditions and legal notions or rely upon any particular theory of social evolution.
Judges, juries and the meaning of words
Authors: Briggs Adrian
Published: April 2006

Twelve years ago, in Brutus u Cozens, the House of Lords held that the meaning of an ordinary word of the English language was not a matter of law for the judge, but a question off act for the jury. The way was opened to the argument that in the definition of criminal offences, the metes and bounds of criminal liability were themselves no longer matters of law, but matters off act for the jury. This would allow a judge, when giving his direction, to read a short sentence or two, and leave the jurors to form a largely untutored view of whether an offence had been committed. No matter that different juries would reach different conclusions on the same facts. No matter that there would be little opportunity for an appellate court to correct what it perceived to be an incorrect verdict.
The girl they named Manhattan: the law of forenames in France and England
Authors: Munday Roderick
Published: April 2006

On 20 February 1982 a baby girl was born in France to Jean-Pierre and Marie-Hélène C. They determined to call their child Manhattan, after an eponymous popular song that had enjoyed currency in the year they were married. The registrar (officier de l’état civil), however, declined to register the child under that name and, when the parents subsequently refused to select any others, the procureur de la République applied to the French civil courts to give the child a forename. The tribunal de grande instance gave the infant its parents’ forenames, refusing to grant the latters’ request to register the child under the name of Manhattan.
The teaching of jurisprudence and legal theory in British universities and polytechnics
Authors: Barnett Hilaire A. , Yach Dianna M.
Published: April 2006

‘Whatever the future of the subject, the content of the present courses suggests that jurisprudence has a capacity for self-renewal and an elasticity which enables it to interpret ideas from philosophy and the social sciences to law students in a way which stresses their modern relevance to the social and theoretical problems which an intelligent and critical study of law should suggest.’ So concludes the last survey of jurisprudence teaching in British universities carried out in 1972/73 by Cotterrell and Woodliffe. To what extent could their sentiments be echoed in 1983/84?

Ten years have elapsed since the previous survey was completed during which time important changes have occurred in legal education and its environment.
Positivism, empiricism and criminological theory
Authors: Weatherburn Don , Findlay Mark
Published: April 2006

The discipline of criminology has been dominated since the turn of the century by an explanatory paradigm known as ‘positivism’. The distinctive features of that paradigm have been both substantive and methodological. On the substantive side ‘positivist criminology’ has been marked by a commitment to the explanation of criminal behaviour (and deviance generally) in terms of characteristics of the individual. Thus positivist criminology has been notable for its explanations of criminal behaviour in terms of gross bodily features, patterns of child-rearing, genetic defect, and idiosyncratic personality traits. On the methodological side positivist criminology has been marked by a preference for scientific method in the evaluation of theory and scientific ideas in the formulation of that theory. By and large these methodological predilections have meant assigning a primacy both to the role of systematic observation in the evaluation of theory and to the avoidance of theoretical assumptions whose validity could not be checked by recourse to observation.
Family courts or family law reform — which should come first?
Authors: Hoggett Brenda
Published: April 2006

Why should a Law Commissioner be interested in family courts? Family courts were an item in the Commission’s first programme but the Commission has made no proposals on the subject. A working party was set up in 1971 and seemed on the point of producing a working paper when it was learnt that the Finer Committee intended, not merely to make some general observations, but to lay down broad principles and work them out in some detail. The Commission therefore suspended operations indefinitely. Since then, it has taken the view that the issue must be left to the responsible government departments, who have recently begun their own consideration of the subject.
Traditions of interpretation and the status of the legal text
Authors: Goodrich Peter
Published: April 2006

The legal tradition is a written tradition and is consequently centred upon the study of textual meanings. From the earliest times law, both religious and secular, has been inscribed and codified, be it chiselled in stone, carved in wood, scratched on vellum or written in books. While the law codes and law books are certainly not the only forms of law they are in historical terms the dominant ones. The law is ideally promulgated in books and is found in books, it being of the historical essence of sacred and secular legal power to take a written form.
Reckless language and Majewski
Authors: Macdonald Elizabeth
Published: April 2006

It is the purpose of this article to consider the recent case law on the Majewski rule and to show the problems which can be created by an undisciplined use of language. The first section is concerned with the inaptness of the language used in one of those cases to confine the Mujewski rule to its proper sphere of operation. The second part deals with the somewhat reckless use of the term ‘recklessness’ and its potential impact upon that rule.
Commitment and contradiction in immigration law
Authors: Marrington D. K.
Published: April 2006

UK immigration law is changing rapidly. There have been four major revisions of the immigration rules since 1979, interspersed with numerous minor, but none the less significant, amendments. Moreover, in an increasingly complex field, litigation has flourished. Applications for judicial review have been lodged at a rate which has recently prompted the Court of Appeal to severely restrict access to the court - in all but the most exceptional cases - until the statutory appeal process has been thoroughly exhausted. One consequence of this level of activity has been that the provisions under which family members may join their relatives in the United Kingdom have changed radically during the short life of the Immigration Act 1971.
The Administrative Appeals Tribunal of Australia: the first decade
Authors: Peiris G. L.
Published: April 2006

A legislative package which transformed the landscape of Australian administrative law during the last decade by invigorating prosaic models of judicial review, has attracted attention throughout the Commonwealth as ‘an awesome leap’. A burgeoning bureaucracy, whose commitment to legal norms is all too often diluted by excessive zeal in the pursuit of administrative goals, and the perceived inadequacy of conventional restraints including legislative scrutiny, the supervisory jurisdiction of regular courts and internal checks operating at different levels of the executive hierarchy, have heralded bold, innovative approaches.
Human rights in Europe
Authors: Schemers Henry G.
Published: April 2006

Through the ages many common legal values have developed in western Europe. Notwithstanding the differences in legal systems there is a remarkable uniformity in the basic concepts of legal thinking. All western European states are democracies with constitutional restrictions to the power of the government. They all have similar defences against absolutism and one of these defences is the protection of fundamental human rights against government interference. The existence of such legal restrictions is a distinguishing feature of western European politico-legal development.
Public nuisance and particular damage in the modern law
Authors: Kodilinye Gilbert
Published: April 2006

It is an established principle that an individual who is adversely affected by a public nuisance may not sue in tort unless he can show that he has suffered ‘particular damage’ over and above that suffered by the general public. Traditionally the principle has been justified on the ground of prevention of multiplicity of suits. It is argued that unless the complainant's injury is in some way distinguishable from that suffered by the general public, the proper plaintiff is the Attorney General as the public's representative; otherwise the wrongdoer could be punished ‘a hundred times for the same cause’.
Transferability and sale of goods
Authors: Davies Iwan
Published: April 2006

In any system of property law a complete specification of rights and duties raises at least two questions. First, allocation of rights and duties inter se between the parties to the transaction; secondly, the rights and duties of the parties to the original transaction against the rest of the world. The traditional common law analysis where a third party wishes to acquire an indefeasible interest in a chattel is to direct the latter to the ‘owner’ and indeed the prerequisite for the enjoyment of most property rights depends upon our ability to acquire it from someone else. Furthermore, inherent in the idea of acquiring an absolute right in property (title) is exclusivity of possession ie superiority over the transferor and third parties.
What should the Code do about omissions?
Authors: Williams Glanville
Published: April 2006

I yield to none in my admiration of the draft Criminal Code produced by the Law Commission's academic team, but everyone who studies it will have what he regards as improvements to suggest. So here is my item, relating to the team's proposals for omissions. I think the draft provides too great scope for offences of omission, particularly for serious offences of omission.

This article is concerned with pure omissions. I call them ‘pure’ since omissions combined with action are counted as acts - largely because they are not subject to the peculiar difficulties of penalising omissions.
Making up for the missing element — a sideways look at attempts
Authors: Stannard John E.
Published: April 2006

Why does the mens rea of attempt require intention even though some lesser state of mind will suffice for the completed offence? What is the meaning of ‘intention’ in this context? Is intention required for all elements of the crime attempted or only for some? Can one draw a distinction between circumstances and consequences in this connection? Can crimes of negligence or of strict liability be attempted? Why do ‘impossiblc’ attempts cause such difficulty? Is there any meaningful distinction to be drawn between Anderton v Ryan and Shivpuri, or was Shivpuri the last word on the matter? It would be presumptuous to suggest that this article was the answer to all these questions: nevertheless it is suggested that light can be thrown on them by standing back and looking at the nature of a criminal attempt. The key to these and other puzzles, it is suggested, can be found in two concepts, the analysis of attempt as a crime with a missing element, and the notion ofintention as distinct from knowledge or foresight of consequences as stressed in Moloney and more recently by the House of Lords in Hancock and Shankland.
Justifying private property rights: a message from Hegel's jurisprudential writings
Authors: Salter Michael
Published: April 2006

This article seeks to unfold the character, scope and trajectory of justifiable property rights within Hegel’s jurisprudential writings. It does so in order to try to make this reputedly ‘difficult’ and much neglected theorist fit for undergraduate consumption on private law courses.

If we accept the need for an intelligible social theory of private law, why should lawyers consider that of Hegel? Hegel devoted his last book to a ‘Philosophy of Right. This text is, however, barely mentioned by even the more comprehensive of modern textbooks on jurisprudence. There could be little ground for complaint if such neglect of Hegel’s legal writings were based upon a fully reasoned consideration and then subsequent rejection due to certain vital and demonstrable flaws within them.
Continuing departures from Woolmington: a South Asian perspective
Authors: Peiris G. L.
Published: April 2006

Recent trends in England represent a dramatic erosion of the sanctity of the rule in Woolmington. These developments are of particular significance today, in the light of the virtually open-ended character of some of the contemporary departures from Woolmington’s case.

A decade ago, in Edwards, the Court of Appeal purported to identify in the common law a line of authority which established, as a result of experience and the need to ensure that justice is done both to the community and to the defendants, an exception to the fundamental rule of the criminal law that the prosecution must prove every element of the offence charged. The effect of this exception, which the court sought to extract from rules of pleading, is that where an enactment, on its true construction, prohibits the doing of acts subject to provisos, exceptions and the like, the prosecution is entitled to rely on the exception, with the result that the burden shifts to the defendant to prove that it was lawful for him to do the prohibited act in the circumstances.
Resiling from the Anns principle: the variable nature of proximity in negligence
Authors: Kidner Richard
Published: April 2006

For a number of years there has been considerable criticism of both Donoghue v Stevenson and Anns v London Borough of Merton on the grounds that the prima facie duty doctrine which some believe those cases established is so wide as to be meaningless and obscures more than it reveals. This article seeks to show how the courts have come to accept this criticism and to indicate how the concept of duty should now be viewed. In particular the point is that there are now different levels of proximity required to establish a duty in different situations and that while this means that the various categories of duty must be distinguished from each other, this does not involve ossification of the law, but rather development of the law may be made easier by a pragmatic rather than a conceptual approach. The principle that 'the categories of negligence are never closed’ means both that existing duties may be refined and extended, and also that new duties may be created. How that can be done depends on our understanding of the nature of the concept of duty and how each step should be taken.
Does a third party beneficiary have a right in English law?
Authors: Andrews N. H.
Published: April 2006

The doctrine of privity has two main aspects. The first is that a third party is not to be burdened or prejudiced by a contract. This appears sound and wil not be examined further. The second aspect of the doctrine is controversial. A third party cannot take advantage ofa contract made by A and B for his benefit. The potential benefit to C can take two forms. A positive benefit is the right to some material advantage, such as money, property or services. A negative benefit consists in the conferring of an immunity. there is authority for the denial of both kinds of benefit to C. Tweddle u Atkinson and Dunlop u Selfridge established clearly that a third party does not have an ius quaesitum, tertio or active right. The House of Lords in Scruttons u Midland Silicones extended the privity rule so as to deny that C can take advantage of a negative benefit.
Some favourite fallacies about similar facts
Authors: Allan T.R.S.
Published: April 2006

There can be few passages ofjudicial exegesis which have claimed more attention, analysis and controversy than Lord Herschell’s famous, or infamous, statement of principle in Makin u A-G for New South Wales. His Lordship had appeared to assert an absolute rule against adducing evidence of bad character in order to prove the defendant’s guilt on the basis ofhis criminal disposition; and in Boardman v DPP Lord Hailsham expressly approved this prohibition on use of the ‘forbidden chain of reasoning’. A recent judgment by Gibbs CJ in the High Court of Australia contains a lucid modern restatement of Lord Herschell’s principle:

‘The prosecution cannot adduce evidence tending to show that the accused has been guilty ofcriminal acts other than those with which he is charged if the evidence shows only that he had a propensity to commit crime, or crime of a particular kind, or that he was the sort of person likely to have committed the crime charged.
Incorporation of contract terms by a ‘consistent course of dealing’
Authors: MacDonald Elizabeth
Published: April 2006

What little empirical work there has been in the field of contract law has revealed that the parties do not always regard the legal enforceability of their agreements as a high priority. Problems arise when this attitude is combined with the use of standard terms by one or both parties. Perhaps the best known example ofthis is the ‘battle ofthe forms standard forms are exchanged with no attention being given to their inconsistencies and it then becomes very difficult to determine which set of terms actually form the basis of the contract. Another problem occurs where the parties have carefully negotiated some part of their contract only to discover, when a dispute arises, that it is inconsistent with the standard terms which were incorporated into the contract and to which neither party had paid much attention. This article is concerned with the problem which occurs when one party has a set ofstandard terms but has introduced them into the transaction after the contract has been concluded.
Exploring legal tradition: psychoanalytical theory and Roman law in modern continental jurisprudence
Authors: Duxbury Neil
Published: April 2006

The idea that psychoanalysis might be of use in the study oflaw and legal activity is by no means anything new. At the beginning of this century, the Russo-Polish jurist Leon Petrazycki proposed a theory of legal psychology, arguing that law, as an intuitively intelligible component of the human mental process, is in essence constituted by individual feelings of moral obligation and responsibility. Around the same time, psychoanalytical theory was beginning to make a slight impact on American and European jurisprudential thinking. This impact was to become all the more significant when, in the 1930s, Thurman Arnold and Jerome Frank presented arguments about the nature oflegal reasoning, and the roles of both academic lawyers and judges, which were very clearly founded upon broad interpretations of psychoanalytic ideas and concepts. In the continental tradition, Hans Kelsen, though in his early work drawing a distinction ‘between pure legal theory and psychological-sociological speculation,’ nevertheless attempted on occasion to conceive of the sovereignty of the state in Freudian psychoanalytic terms
The role and place of theory in legal education: reflections on foundationalism
Authors: Hunt Alan
Published: April 2006

This paper discusses the role of theory in legal education. It builds on an exchange between the author and Neil MacCormick and upon the discussion of the place of theory in legal education in William Twining’s symposium. The paper will move from some fairly concrete issues about the place of jurisprudence in the law curriculum towards some wider problems about the place of theory in legal studies and, finally, will consider some issues about the relationship between theory and jurisprudence. On the way it discusses the relationship between theory and philosophy in a manner which focuses upon the controversy about the foundational claims and pretensions of the theoretical and philosophical enterprise.
The summoning and meeting of new Parliaments in the United Kingdom
Authors: Blackburn Robert
Published: April 2006

Parliamentary election law in the United Kingdom has been the subject of much review in Westminster and Whitehall over the past few years. The last Parliament, 1983-87, extended the franchise to British citizens temporarily resident overseas, and allowed for a greater use of postal and proxy voting. The amount of a parliamentary candidate's deposit was increased from the 1918 figure of £l50 to £500, and the threshold below which it is forfeited was reduced from 121/2% to 5% of valid votes cast. The law relating to the work of the Boundary Commissions was consolidated, and most recently the House of Commons Home Affairs Committee has reported its recommendations upon redistribution of seats, including among them a proposal for a stabilisation in the number of constituencies at its present level of 650.
Foundations of legal tradition: the case of ancient Greece
Authors: Duxbury Neil
Published: April 2006

Much has often been made of Maine's striking opening sentence to his Ancient Law, in which he states that the most celebrated system of jurisprudence in the world, the Roman law system, ‘begins, as it ends, with a code.’ It is a remark which serves well those who argue that law has evolved as a predominantly written culture. Yet, as Maine points out, the publication of the Twelve Tables (these traditionally being regarded as the foundation of Roman law) ‘is not the earliest point at which we can take up the history of law.’
Standing to sue in private nuisance
Authors: Kodilinye Gilbert
Published: April 2006

The traditional view of the scope of the tort of private nuisance is that the action protects a person's right to the use and enjoyment of land, and therefore only a person who can show that he has an interest in land is entitled to sue. What is a sufficient interest in the land affected, however, has never been free from doubt. Whilst freeholders and lessees in possession may certainly sue, there is doubt as to the entitlement of certain licensees, such as members of the family of a freeholder or lessee. In the recent case of Deuon Lumber Co Ltd u MacNeill, the New Brunswick Court of Appeal held, by a majority, that the children of a freeholder who had been adversely affected by dust from the defendant's adjacent cedar mill were entitled to sue in private nuisance, for ‘even though the children lacked any legal title to the property, they had a right of occupation sufficient to support an action on their behalf for damages for any unreasonable and substantial interference with their lawful use or enjoyment of the family residence’.
Must retiring trustees be replaced?
Authors: Tan Y. L.
Published: April 2006

A trustee who has accepted trust obligations can retire from his trusteeship in four ways: (i) by virtue of the trust instrument which expressly or impliedly authorises him to do so; (ii) under s 36 of the Trustee Act 1925; (iii) under s 39 of the Trustee Act 1925 and (iv) under s 41 of the Trustee Act 1925, ie by permission of the court.

In regard to retirement under s 36 which provides for non-judicial appointment of new trustees, it is widely accepted that a trustee may so retire only by the valid appointment of another trustee in his place; retirement without replacement is only possible under s 39 and that would require consent to the retirement. An examination of the relevant case law reveals that it assumes rather than establishes the widely accepted view; but more importantly the effect of legislative changes culminating in the present s 36 removes the most probable reason for the view so that the formulation for it has, so to speak, disappeared.
Marriage in England: favouring the lex fori
Authors: Clarkson C. M. V.
Published: April 2006

The orthodox rules on validity of marriage at common law are that formal validity of marriage is governed by the lex loci celebrationis and essential validity of marriage (or capacity to marry) is governed by the personal law, ie the law of domicile. Neither the lex loci celebrationis nor the lex fori ought to have any interest in such questions of essential validity.

According to such orthodoxy there are two rules of English law that are suspect and in need of reconsideration. First, there is (arguably) the rule that the parties to a marriage do not need to have capacity to marry by the lex loci celebrationis when they marry abroad but do need such capacity when the marriage takes place in England. The second rule subject to attack is the notorious ‘exception’ based on Sottomayer v de Barros (No 2)2 which allows a foreign incapacity to be ignored when an English domiciliary marries in England, but not when the marriage takes place abroad.
Some thoughts on jury secrecy
Authors: Jaconelli Joseph
Published: April 2006

Should those who have served as members of the jury in a newsworthy trial be restrained by the criminal law from recounting what transpired in the jury room?

The issues surrounding the legitimacy or otherwise of jury room disclosures pose peculiar problems in the administration of justice. They do so because such disclosures are made, not by journalists assigned to cover the trial (as at present), nor via the medium of televising the event (as may shortly be the case), nor simply by those most intimately involved in the conduct and outcome ofthe trial (such as the accused or counsel). The special feature which sets jury room disclosures apart is the fact that they emanate from those who are directly responsible for the verdict in the case. Viewed in this way, the accounts given by ex-jurors should perhaps be considered in broadly the same light as the recollections of the person less directly responsible for the outcome, namely the trial judge. And, indeed, we do have a wellknown instance of the latter type of account in Lord Devlin's Easing the Passing , the story of the trial for murder in 1957 of Dr John Bodkin Adams.
Contract law and distributive justice revisited
Authors: Richardson Megan
Published: April 2006

This article is a response to a series of articles on contract law and distributive justice. In the first article, published in the Yale Law Journal, Professor A. T. Kronman put forward the thesis that the law of contract is necessarily concerned with distributive justice – that is, with the ‘fair division of wealth among the members of society’. In the second article, published in the Oxford Journal of Legal Studies, W. N. R. Lucy rejected that thesis and argued that limits on contracting are based on freedom rather than distributive justice. In this article I argue that contract law is and should be concerned both with freedom and with the substantive fairness of the distribution effected between the parties.
Informal dealings with land after section 2
Authors: Bently Lionel , Coughlan Paul
Published: April 2006

The Law of Property (Miscellaneous Provisions) Act 1989 has radically altered the law relating to the formalities required in respect of a contract for the sale of land. It has repealed s 40 of the Law of Property Act 1925 and in its place s 2( 1) of the 1989 Act provides:

‘A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.’
On the theory of interpretation
Authors: Kelsen Hans
Published: April 2006

The legal system is not a system of co-ordinate norms, found at one and the same level. Rather, it is a hierarchical structure of superordinate and subordinate legal norms, whose reciprocal relations are illuminated by the structural analysis undertaken by the Pure Theory of Law. The enquiry into the hierarchical structure of the legal system has significant consequences for the problem of interpretation. Interpretation is an intellectual activity accompanying the law-creating process as it moves from a higher level of the hierarchical structure to the lower level governed by this higher level. In the standard case, that of interpreting statutes, the question to be answered is how, in applying the general norm (the statute) to a concrete material fact, one is to arrive at a corresponding individual norm (a judicial decision or an administrative act).
‘Can I help you?’ accessorial liability and the intention to assist
Authors: Duff R. A.
Published: April 2006

Aiding and abetting requires an ‘intention’ to assist the commission of the relevant offence. But what should ‘intention’ mean in this context? Does D have that intention just so long as she acts in a way which she knows will facilitate the commission of the offence which P intends to commit, or must she act in order to assist the commission of that offence?

On one view knowledge is sufficient, since D need only have ‘intended to do the acts which he knew to be capable of assisting or encouraging the commission of the crime’. A brewer who knowingly sells beer to someone who intends to resell it without a licence is guilty of aiding and abetting, as is a person who lends her car to someone who intends, she knows, to use it for a criminal venture.
Restitution within contract?
Authors: Mead Geoffrey
Published: April 2006

If an employee, as part of a programme of industrial action, refuses to work normally, what is the legal position when he performs only a part of his duties? This question has been the subject of much litigation in recent years, and raises issues of fundamental importance. At a practical level, it has to be determined whether and when the employee is entitled to any remuneration, and if so, how much? Related to this are the options open to the employer in the light of such action. At a theoretical level, questions arise concerning the proper scope of the law of contract, and its relationship to the law of restitution. This paper will explore these issues, and suggest an approach which can adequately deal with both questions.
Reforming the French legal profession; towards increased competitiveness in the single market
Authors: West Andrew
Published: April 2006

It may be of some comfort to English and Welsh lawyers to know that they are not alone in having to face up to the challenge of the reform of the traditional basis on which they have practiced. The implications of the impending single market are resulting in moves in other EC member states towards a more competition oriented framework for the provision of legal services. During December 1990 the French National Assembly passed a law introducing major reforms to the legal profession. The rationale behind the reforms is the modernisation of the French legal profession in an endeavour to make it more competitive in the single market, as was made clear by M. Arpaillange, the then Minister of Justice when he said that, ‘there is no longer any need to underline the obsolete character of the separation of the legal profession in the light of the approaching single market’.
Enforceability of leasehold covenants: more questions than answers
Authors: Thornton Rosy
Published: April 2006

The enforceability of the convenants in a lease after an assignment, whether by the landlord or the tenant or both, is a matter of considerable practical importance. In the case of long leases, assignments of the leasehold estate and of the reversion are a common occurrence; both will often change hands many times before the end of the term, creating a welter of potential parties to any action on the covenants. In addition, there may be sureties who have undertaken to guarantee performance of the tenant's covenants. The basic principles governing the parties' rights and liabilities in this field under the present law are well known, centring upon privity of contract, privity of estate and upon statutory rules found in ss 141 and 142 of the Law of Property Act 1925. The area is one of vital commercial significance to landlords, and which potentially affects the residential security and amenity enjoyed by tenants (in the case, for example, of landlords' covenants to renew or to repair). It is also a field in which many of the issues and concepts have been the subject of judicial and academic consideration for more than a century, yet a surprising number of uncertainties remain. The law consists of a complex set of rules, which together form something resembling an intellectual jigsaw puzzle, and one from which several pieces are still missing. The aim of the first part of this article is to highlight some of these gaps.
Inquests, inquiries and indictments: the official reception of death by disaster
Authors: Wells Celia
Published: April 2006

In this essay I consider the reception, perception and construction of deaths by disaster. Catastrophies such as those at Aberfan, Zeebrugge and Hillsborough present a challenge to legal and political systems. They prompt immediate and long-term responses. Some of these are concerned with establishing the cause, some with preventing their recurrence and others with blame allocation. There have been public and not so public inquiries into them. In some cases there have been criminal prosecutions with suggestions of scapegoating, but all these disasters have one thing in common. They have been the subject of an inquest. To be more precise, each death has been the subject of an inquest, as are the 18,000 deaths from external causes, injuries or poisoning, which occur every year. Here I focus in particular on the role of the coroner's inquest and its relationship with other forms of public investigation in shaping public perceptions of disasters.
Regulatory law: some lessons from the past
Authors: Ogus A. I.
Published: April 2006

Regulation as a legal form of social engineering has been subjected to much analysis in the last decade or so. The importance of the topic to contemporary law cannot be overstated: on the one hand, it has been the avowed aim of government to ‘deregulate’ industry; on the other hand, and paradoxically, both the concomitant policy of privatisation and the evolution towards a Single European Market have increased the need for regulation in appropriate areas. The efforts to explore the strengths and weaknesses of different regulatory forms have brought together scholars from a wide range of disciplines. Administrative lawyers have been concerned with how the power of decision-making is allocated between institutions and the general problems of accountability and control of discretion to which this gives rise. Socio-legal researchers have critically examined the practices of regulatory agencies as regards rule formulation and enforcement.
The meaning of indecency
Authors: Williams Glanville
Published: April 2006

No statute defines indecency, yet this is the element that makes the difference between common assault (a summary offence, maximum six months) and indecent assault (maximum now ten years). In gross cases no question arises; the trouble is with the marginals. The courts solve them, as they solve so many problems on jury trial, by leaving the question of indecency pretty well at large to the jury. This long-established rule was reaffirmed by the lords in Court. Lord Ackner, with the concurrence on this point of all the other lords, said ‘The prosecution must prove & that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent’.