bluuebunny/crossref_metadata_2025 huggingface dataset:
Legal doctrine in crisis: towards a European legal science
Authors: Van Hoecke Mark , Ost François
Published: April 2006

Legal doctrine has two aims: describing and systematising the law. The description of currently valid law within a given legal system is the most visible and, from a quantitative point of view, the most important task for legal doctrine. From a qualitative point of view, however, systematisation of the law is by far its most important task. Systematisation is the construction of a conceptual framework of the law, which is a necessary basis for any legal rule and for any legal reasoning. Systematisation presupposes a description of the rules, principles, concepts, etc, which are to be systematised. But description of the rules is impossible without the conceptual framework that the systematisation of the law offers. Even the law itself is based on this conceptual framework. Codifications, such as theCode Napoléonor the GermanBürgerliches Gesetzbuch,were made possible because of the centuries-long preparatory work of legal doctrine.
Are civilians educable?
Authors: Legrand Pierre
Published: April 2006

All the efforts of human reason tend to the elimination of [the other]. The other does not exist: such is rational faith, the incurable belief of human reason. Identity = reality, as if, in the end, everything must absolutely and necessarily be one and the same. But, the other refuses to disappear: it subsists, it persists; it is the hard bone on which reason breaks its teeth. [There is] what might be called the incurable otherness from which oneness must always suffer.
Reliance and expectation in estoppel remedies
Authors: Robertson Andrew
Published: April 2006

The word ‘estoppel’ had its origins in the old French word ‘estoup’, meaning plug or stopper. The principle of estoppel by representation of fact operates in a manner which is consistent with those origins. Where a representation of fact is relied upon by a representee, the effect of the estoppel is to stop up the mouth of the representor, and prevent him or her from asserting facts contrary to his or her own representation. The rights of the parties are then determined by reference to the represented or assumed state of affairs. An estoppel by representation of fact can be used defensively, where an action which would otherwise be available to the plaintiff is not available on the assumed state of affairs. It can also be used aggressively, to establish a state of affairs in which a cause of action exists, where that cause of action would not be available on the true state of affairs.
Pubic authorities – negligence actions – control devices
Authors: Brodie Douglas
Published: April 2006

X (minors) v Bedfordshire County Council is by far the most important decision on the liability in negligence of public authorities since Anns v Merton London Borough Council. These two authorities, along with Dorset Yacht Co v Home Office, furnish the ground rules for such actions. The leading judgment in X v Bedfordshire CC, in which all his brethren concur, is given by Lord Browne- Wilkinson; the only other judgment being given by Lord Jauncey. The common thread running through this trilogy of cases is the emphasis on the significance of the element of discretion in the exercise of the statutory functions of a public authority: ‘Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed’.
Negligently inflicted psychiatric damage: a medical diagnosis and prognosis
Authors: Sprince Alan
Published: April 2006

In 1970, when commenting on the law's progress in dealing with negligently inflicted psychiatric damage that does not result from physical injury (hereinafter ‘psychiatric damage’), Windeyer J delivered a famous ‘backhanded’ compliment, by observing ‘[l]aw, marching with medicine but in the rear and limping a little’. At the risk of straining that metaphor by re-casting it into a medical perspective, the purpose of this article is to provide a diagnosis and prognosis as to the current state of that legal limp. It would conclude: ‘legal patient now seems docile and uncharacteristically compliant, makes right noises but limp no better. Query whether symptomatic of more serious problem requiring radical surgery?’

This rather negative assessment is acknowledged to be somewhat at odds with a more optimistic prognosis that could be derived from recent trends that seem generally to signify a growing ditente between law and medicine.
Hate-speech laws: consistency with national and international human rights law
Authors: McGoldrick Dominic , O'Donnell Thérèse
Published: April 2006

Racism has climbed the political agenda at national, European and international levels. Reports from national and international non-governmental organisations (NGO’s) and inter-governmental organisations have focused considerable attention on racism and xenophobia and document an increase in racism, xenophobia, anti-Semitism and race-related activities. As racism has climbed the political agendas, so there has been a substantial increase in the number of national, European and international legal instruments devoted to it. In particular, race-related restrictions on freedom of expression (‘hate-speech’) are increasing and seem likely to continue to do so. Such restrictions give rise to controversy in terms of constitutionality, legal policy and consistency with European and international human rights law. There are also differences of views between the policies of NGO's on restrictions on racist speech.
Negative easements — a crumb of analysis
Authors: Dawson Ian , Dunn Alison
Published: April 2006

History, as much as logic, has shaped the English real property law of today. The richness of that history is one of its strengths, but is also a potential source of weakness, as where the boundaries between similar, but distinct rights are neither theoretically nor logically distinguished. Whilst this may often not be of practical concern, none the less a lack of logic may lead to inconsistency or uncertainty in the law (or indeed both). Particularly is this so where social pressures require protection for new situations, as for example where a flat owner requires the certainty that his right to park his car is a proprietary right.

That provides one justification for seeking a strong and consistent theoretical framework. Another is that as we integrate more closely with our European partners, we may be compelled to accept into our thinking concepts which are at present alien to us.
Relatively universal: globalisation, rights discourse, and the evolution of Australian sexual and national identities
Authors: Stychin Carl F.
Published: April 2006

Successful law reform campaigns leave behind a rich history; a story of engagement between activists seeking legal change, opponents who attempt to maintain the status quo, legislators, and the judiciary. The repeal of the provisions of the Tasmanian Criminal Code which prohibited certain private, consensual sexual relations between adults, and which were aimed primarily at male samesex sexual acts, by the state legislature in May 1997, signaled the end of a particularly arduous campaign which lasted several years. What makes this struggle worthy of academic treatment, first, is the simple fact that the gay activist campaign was waged over a plurality of legal and political sites at the state, national, and international levels.
The valuer's liability for negligent valuation - toward a more principled allocation of the risk of market decline
Authors: Loke Alexander
Published: April 2006

The scope of duty of care concept developed by Lord Hoffmann in South Australia Asset Management v York Montagu (1997) AC 191 seeks to limit a valuer's responsibility for a lender's losses arising from his negligent valuation report. The limitation device stems from a laudable motivation. As the valuer provides only one of the considerations on which the lender relies to assess the loan proposal, it is intuitively unappealing to thrust the full loss onto the valuer. However, this limitation technique operates in a mechanical manner and does not deal with the loss attributable to the market fall in a cogent and principled manner. This article suggests that the key to a principled restriction on the valuer's responsibility lies in identifying the kinds of risks the parties were willing to assume. The author develops two techniques - the Constructive Alternative Transaction Discount and the Constructive Actualised Risk Discount - for reducing the valuer's extent of responsibility in a principled and cogent manner.
The statutory regulation of business tenancies: private property, public interest and political compromise
Authors: Haley Michael
Published: April 2006

The need for the statutory regulation of business tenancies was officially recognised towards the end of the nineteenth century. The mischief complained of was that some landlords held their tenants to ransom by demanding an inflated rent as a condition of a lease renewal. This was particularly harsh for the tenant who had built up business goodwill and carried out improvements to the premises. Despite the organisation of commercial tenants and the growth of political lobbying, it was not until Landlord and Tenant Act 1927 that controls emerged which provided compensation for loss of goodwill and improvements. The inadequacy of these provisions, however, entailed that tenant discontent and lobbying persisted until the enactment of the Landlord and Tenant Act 1954. This paper charts the social and political change which brought about this significant retreat from market forces and the gradual recognition that security of tenure, as opposed to financial safeguards, was the necessary response. The controls established in 1954 have, remarkably, survived almost intact and, subject to some fine tuning, will continue to do so. This paper addresses the issue why the commercial code has, in marked distinction to its residential and agricultural counterparts, remained immune to shifts in political policy during a sustained period of deregulation in landlord and tenant law.
When surfers start to shop: Internet commerce and contract law
Authors: Brownsword Roger , Howells Geraint
Published: April 2006

Given that the modern law of contract is geared to the protection of reasonable expectation, is this approach capable of extension to contracting in electronic environments, particularly to mass consumer contracting via the Internet? The position taken in this paper is that the gearing of the modern law is largely appropriate. Applying such a modern approach to the provision of dedicated legal regimes for electronic commerce, the principle of ‘medium neutrality’ puts electronic environments on the same footing as traditional contracting environments; and the principles of fair dealing developed for traditional consumer marketplaces are copied across to virtual shopping sites. Whilst we contend that a revolution in the technology of contracting does not imply a revolution in contractual principles, we accept that it will not always be straightforward for the law to implement or respond to the reasonable expectations of Internet contractors (particularly so where, as is increasingly the case, contractors from radically different cultures are connected by the Internet).
Jews and other uncertainties: race, faith and English law
Authors: Cooper Davina , Herman Didi
Published: April 2006

This paper is intended to contribute to an understanding of how Jews and Judaism have been constructed in English case law. Using an analysis of law as ‘racialised’, the paper observes not just ‘the Jews’ of English law, but also the complex production of ‘Englishness’ (and English law) itself: The specific focus of the paper is upon the law of trusts; in particular, legal judgments adjudicating testamentary dispositions where the Jewish settlor has insisted upon progeny ‘marrying in’ in order to inherit. Jewishness is constructed as both ‘faith’ and ‘race’, and the paper considers these categories and their interaction. While the judges tend to find the wills in question uncertain, it is argued that it is in fact ‘Jews’ and ‘Judaism’ with which the courts are unable to come to terms.
Terrorism and human rights: a case study in impending legal realities
Authors: Gearty Conor
Published: April 2006

This article critically appraises the UK government's recently published Consultation Paper on the future of the anti-terrorism laws. The author considers the likely effect of the Human Rights Act 1998 on the impact of any legislation that might flow from the government's proposals. The interaction between human rights law and anti-terrorism legislation provides a useful case study of the likely effects of incorporating the European Convention on Human Rights into domestic law. The author argues that many of these effects have not been anticipated by the drafters of the anti-terrorism proposals, with the result that many of their suggested changes to the law will be vulnerable to legal challenge if not sharply modified before enactment. The author concludes by considering the likelihood that, over time, successive governments will learn to tailor their legislation to the requirements of the Convention, even in the anti-terrorism field, but that in the short-term a period of legislative instability is to be expected.
Pedagogy and ideology: teaching law as if it matters
Authors: Sam Banks N K
Published: April 2006

Considering whether law students receive a legal education that is meaningful and relevant to them raises interesting questions about what education is, what it's for, how we teach, how we learn and, essentially, how we know what we know. This article examines ideology and the law lecturer and student, and how these intersect, interact and conflict to inform the teaching, learning and understanding of law. These are not inconsequential questions considering the range of diversity among students now studying law. These issues are explored by examining the purposes of legal education in light of the overall objectives of higher education. The article then looks at the impact of ideology on our understanding of the world in general and of law in particular, and how ideology influences how we learn and what we learn. The manner in which ideology influences a particular interpretation of information, and especially legal information, is explored, as are the consequences to those outside that ideological and interpretive commonality. Thus, it is argued that some groups of students are excluded from a legal education that is meaningful and relevant to them. Lastly, the article considers ways in which law may be understood and taught otherwise to reflect both our students' reality and the social context in which law operates.
Joint tortfeasance and assistance liability
Authors: Catty Hazel
Published: April 2006

There is a real need to clarify the scope of the doctrine of joint tortfeasance, in view of the constant attempts by plaintifs to widen liability in the search, for the deepest pockets. Part of this clarification involves a reaction to the growing use of ‘accessory liability’ terminology in the civil IUMI generally. There Lire those who argue that whatever the limits of joint tortfeasance liability, the law implicitly accepts liability for ‘facilitators’ us secondary parties to all civil wrongs. The aim of this paper is to clarify the doctrine of joint tortfeasance, to distinguish the liability of those who cause or conspire from those who merely facilitate, and to deny the existence of a wide concept of secondary civil liability.
A reasonable woman standard in sexual harassment litigation
Authors: Monti Giorgio
Published: April 2006

Sexual harassment litigation may be thwarted by judges failing to address the acts in question from the perspective of the victim, thus legitimising behaviour acceptable to men but unacceptable to women. This paper shows how this problem may be overcome by adopting a ‘reasonable woman’ standard to decide if: (i) objectively, the acts in question constitute harassment; and (ii) subjectively, whether the victim suffered injury. Using US case law the paper shows how the reasonable woman standard, which has been accepted in some courts, can allow women's perspectives to be heard. The paper suggests that a reasonable woman standard should be adopted in UK tort law, specifically in litigation under the Sex Discrimination Act, but also for litigation under trespass torts and under the Protection from Harassment Act. Doctrinally, the proposed standard fits within the fabric of tort la; and does not challenge the principle of corrective justice. From a feminist perspective, the reasonable woman standard can successfully redirect tort law to address gender-specific harms.
Practical reasoning and intentional action
Authors: Tadros Victor
Published: April 2006

In the criminal law it is common to distinguish between motive and intention. One of the main reasons for so doing is that in criminal law we are concerned with the wrongfulness of an action in itself and not the agent's own moral evaluation of that action. For this reason, intention has become central to assessing criminal liability. But a similar problem arises with regard to the term intention. This is because whether or not an agent intends a particular consequence depends upon whether or not it was one of the reasons (that is, explanatory reasons) for which she acted. However, we ought to be interested in the reasons that actually applied to those actions (guiding reasons). Hence, the concept of oblique intention applies where the agent realised that a harmful consequence of her action was virtually certain even though it was not a reason for her action. Some writers suggest that this problem can be solved by including consequences brought about intentionally as well as intended consequences within the concept of intention. And this, they argue, is because the use of the adverb is (either conceptually or causally) related to our moral evaluation of an action. In this essay I show that this is not so. The concept of intention is wholly descriptive. Consequently, we require a suitable supplement or alternative to the concept of intention to reflect the highest degree of moral responsibility for the harmful consequences of our actions.
As ‘cold as charity’? : poverty, equity and the charitable trust
Authors: Dunn Alison
Published: April 2006

It has often been assumed that the notion of altruism indicative in the ordinary use of the term ‘charity’ penetrates the rationale for equity's enforcement of charitable trusts for the relief of the poor. This article questions whether in the area of poor relief equity acts out of a humanitarian regard for those whose relief is the purpose of the trust, or whether there is a more pragmatic rationale for action. Examination through case law of equity's reasoning is placed against a backdrop of socio-historical development, and of present day political concerns with resource allocation and professional accountability. This article concludes that whilst the potential for humanitarian relief in charitable trusts for the poor is clear, the operation of equity's jurisdiction in this area has a more prosaic disposition, placing poverty within the practical context of broader economic, social, commercial and industrial political policies.
Environmental monitoring of government — the case for an environmental auditor
Authors: Hollingsworth Kathryn
Published: April 2006

In November 1997 the Environmental Audit Committee of the House of Commons (EAC) was established. The Committee is modelled in some ways on the Public Accounts Committee of the House of Commons (PAC) but, unlike the PAC, the EAC is not supported by an independent auditor. This article argues that, despite the limitations of audit made in accountancy literature, audit can be a useful mechanism by which to hold government to account for the impact of its policies and operations on the environment. However, as a model of accountability, the current system of environmental audit is inadequate. In making this argument, the article draws on two existing audit models. First, because the government has chosen to model the EAC on the PAC, the mechanisms in place for securing financial and value for money accountability in UK central government will be considered. Second, the article looks to the arrangements in Canada, where a more developed system of environmental audit exists.
Noise law in the United Kingdom — a very British solution?
Authors: McManus Francis
Published: April 2006

Until recently environmental noise pollution has attracted relatively little attention from Parliament. However, currently, noise is rapidly moving up the political agenda both in the United Kingdom and in the European Union. This article focuses on neighbourhood noise and examines the efficacy of the substantive law as an instrument of environmental control. Potential difficulties in employing nuisance-based environmental standards for noise are also discussed. The article concludes with the author's suggestion that the law is in need of reform. However, there is no single solution to the problem. Regulation, whatever form it takes, will not, of itself provide the complete solution to noise pollution.
D(en)ying narratives: death, identity and the body politic
Authors: Hanafin Patrick
Published: April 2006

One of the enduring features in Irish legal discourse in the postcolonial period is the manner in which the individual body has become a receptacle of contested meaning. In Ireland, with its birth out of a violent trauma based on a philosophy of blood sacrifice, the heroic patriot who dies in the service of his imagined nation is invested with particular symbolic capital and casts a traumatic shadow over discourses on death in Irish society. The nation is always already in the shadow of death, of the deathly apparition of the new nation, made hauntingly manifest in the photos of the dead body of the nationalist hunger striker Terence MacSwiney, as his corpse lay in state in 1920. This body being dead also signals the hope that, in the sacrifice of the individual for the national cause, liberation will one day come. This theme of the primacy of community over individual prefigured the manner in which in postcolonial Irish society the individual body of the citizen was relegated to a secondary position. The attempt to deny or repress death may be analogised with the similar attempt on the part of political elites to create a notion of political identity which is rigid and attempts to keep all those others associated with death and degeneration outside the body politic.
Racing populations, sexing environments: the challenges of a feminist politics in international law
Authors: Buss Doris
Published: April 2006

In 1994, feminist activists made headlines at the United Nations Cairo Conference on Population and Development for their highly organised and influential lobbying. The final agreement negotiated at Cairo reflected this involvement by specifically referring to women's reproductive rights, and by recognising the complex relationship between population policy, environmental security and economic growth. International population policy, defined broadly as the array of international projects and actors involved in efforts to curb population growth, is an increasingly important arena for the contestation of social values and the meaning of global community. In this paper, I offer a re-reading of the 1994 Cairo agreement, and population policy more generally, in the context of colonial discourses around race and gender, which articulate with constructions of the population ‘problem’. Focusing on the language of environment and economic growth, I examine how racialised conceptions of ‘dangerous’ fertility are reinforced rather than challenged by the Cairo agreement. Through this analysis, I attempt to first, make explicit the international inequality that structures international law and policy, and secondly, outline some of the challenges facing feminist engagement with international law.
Sentencing in cases of marital rape: towards changing the male imagination
Authors: Warner Kate
Published: April 2006

The failure of rape law to convict more men and to protect more women appears to be attributable to the fact that underlying, and assumed by, the law is a male dominated conception of aggressive and possessive male sexuality and a misunderstanding of the real wrong of rape. The sentencing stage of criminal proceedings offers courts the opportunity to challenge these attitudes. Court of Appeal sentencing decisions in cases of marital and relationship rape are analysed and sentencing principles and practice which endorse and reinforce a male dominated conception of sexuality and the wrong of rape are criticised. So, it is argued, an intimate relationship between the offender and the victim should not be a mitigating factor. Nor should forgiveness be a special mitigating factor in cases of marital rape. And attempts to mitigate rape by explaining it in terms of emotional stress, an excess of seductive zeal or other ways that treat aggressive male sexual behaviour and female passivity as the norm, should not be countenanced. Instead, sentencing guidance should foster attitudes which conceive of sexuality as an expression of equal and sharing relationships.
Ram, Rab and the civil servants: a lawyer and the making of the ‘Great Education Act 1944’
Authors: Cocks Ray
Published: April 2006

By common consent, the Education Act of 1944 was the most important educational reform of the century for England and Wales. This article seeks to reveal the role of a lawyer in the making of the legislation and thereby to reassess past interpretations of how the Act was put together. It is clear that the person who drafted the Act, Sir Granville Ram, had an impact on the content of certain sections. The article begins with an outline of the Act and competing interpretations of how it came to be made. It explores the context within which Ram, as a Parliamentary Counsel, did his drafting during the war years. It then turns to the making of clauses in four specific areas of reform. First, local education authorities were given the power to create new types of secondary schools, including comprehensive schools. Secondly, there was a new structure for regulating private education. Thirdly, the Minister of Education was given important new powers. Fourthly, women were no longer required to resign from teaching when they married. These four areas provide examples of how Ram could influence the shape of the statute, and they also reveal that on each occasion his influence was felt in a different way.
Working out women in law schools
Authors: Wells Celia
Published: April 2006

Although well over half of law undergraduates are women, in nearly all law schools they are likely to encounter more male lecturers than women. Few of them will meet a woman law professor and even fewer will see a female head of department. Compared with their male counterparts fewer women students and academic staff will go on to the top of their profession. There is clear evidence that women of all ranks in universities are paid less than their male counterparts. The university sector as a whole is only slowly coming to recognise that some proactive policies might he needed before equal opportunities for women and other groups traditionally excluded from the portals are assured. This paper explores some of the explanations for the position of women in UK law schools.
The Authentic Consent Model: contractarianism, Creditors’ Bargain, and corporate liquidation
Authors: Mokal Rizwaan Jameel
Published: April 2006

The first part of this paper asks if the Creditors' Bargain Model, long employed by insolvency scholars as the starting point for many an analysis, can explain or justify even the most distinctive and fundamental feature of insolvency law. After examining the defining features of the model's construction, the role of self-interest and consent in it, and its ex ante position, it is concluded that the Bargain model can neither explain nor legitimate the coercive collective liquidation regime. The second part of the paper develops an alternative model to analyse and justify insolvency law. The starting premise is that all (but only) those affected by issues peculiarly governed by insolvency law are to be given a choice in selecting the principles which would determine their rights and obligations. Once these parties have been identified, they are to be given equal weight in the selection process, since their legal status (whether they are employees, secured or unsecured creditors, etc), wealth, cognitive abilities, and bargaining strength are all morally irrelevant in framing rules of justice. This part of the paper introduces the notion of a constructive attribute, characteristics this society accepts its citizens should have in their role as legislators. So all parties affected by insolvency issues are regarded as free, equal, and reasonable. The model sketched out in this part of the article requires all principles to be selected from its choice position. Here, all the parties are deprived of any knowledge of personal attributes, and must reason rationally. It is shown that parties in the choice position would in fact choose the principles laying down the automatic stay on unsecured claims. The paper concludes with the demonstration that because of the construction of the choice position and the constructive attributes of the parties bargaining in it, the principles chosen are fair and just, and chosen in exercise of the parties' autonomy. As it happens, they are also efficient.
‘Sperm bandits’, birth control fraud and the battle of the sexes
Authors: Sheldon Sally
Published: April 2006

This paper briefly reviews the US case law dealing with the issue of birth control fraud and speculates on the possibility of a similar action succeeding in the UK. It then focuses on newspaper reporting of one such case. A common media reading of this case, and one which can also be detected in some academic commentary of similar cases, is to contextualise it as part of an ongoing ‘battle of the sexes’, where historic poles of inequality have become reversed and women have gained unfair (legal) advantage in procreative matters. It is argued that such an understanding is flawed and misleading, serving to distract attention from the legal structuring of these kinds of disputes. The paper concludes that the operation of the law can here be better understood as seeking to support the nuclear family in a way which can impact negatively on both individual men and individual women. The birth control fraud cases invite us to rethink the way that parental obligations are imposed and to justify more rigorously the choices which we make in this regard.
To belong or not to belong: the Roma, state violence and the new Europe in the House of Lords
Authors: Fraser David
Published: April 2006

Issues of national sovereignty and membership in the body politic are central to many current political and legal debates surrounding ‘New Britain’ and Europe. Traditional understandings of citizenship and belonging are grounded in the ideal of a territorially limited and defined nation state. In this article, I explore a series of judicial and political decisions surrounding the fate of Roma or Gypsies, both as claimants to refugee status in Britain, or as subjects of domestic legal controls. I argue that these decisions construct this nomadic Other as a fundamental danger and challenge to the coherence of the legally protected body politic of the nation state ‘Britain’. I argue that the deconstructive excess found in the construction of the Roma as dangerous nomads, without allegiance to a fixed and geographically delimited nation state, might contain the kernel for a possible re-imagining of the basis of our understandings of citizenship and belonging.
Fairly Bland: an alternative view of a supposed new ‘Death Ethic’ and the BMA guidelines
Authors: Price David
Published: April 2006

Recently in this journal John Keown attacked the BMA Guidance published on ‘Withholding and Withdrawing Life-prolonging Medical Treatment’, arguing that it was, fundamentally at odds with the sanctity of life doctrine as properly understood, condemning the intentional termination of individuals' lives. In riposte it is asserted that even this modified version of the doctrine cannot support a defensible moral or legal standard for decision-making here, being founded upon an excessive emphasis on the mental state of the clinician and an inappropriately narrow focus on the effects of the proposed treatment on the ‘health’ of the patient, as opposed to being primarily driven by the (best) interests of the patient. The attempt to divorce treatment decisions from broader evaluations of the net benefit or other otherwise able to be attained by the patient from such treatment, including the taking into account of the individual's handicapped state, accordingly fails. Acceptance of such reality is, at the least, the first step toward a common language for further dialogue even between those with polar opposite opinions in this sphere.
Orientalism and legal education in the Middle East: reading Frederic Goadby'sIntroduction to the Study of Law
Authors: Strawson John
Published: April 2006

Frederic Goadby'sIntroduction to the Study of Law, written for law students in British occupied Egypt and later Palestine, provides a significant record of colonial attitudes about Western law and the legal cultures encountered in the Middle East. Edward Said'sOrientalismoffers a deconstructive methodology which reveals the legal narrative of Goadby's work as offering an invitation to the students to become spectators, along with the colonists of their own legal culture. Once imbued with the spirit of English law, Egyptian and Palestinian students passed the test of civilisation. Goadby's book reminds us that while colonial occupation of territory may have ceased the impact of cultural occupations continue. For both coloniser and colonised this discourse becomes part of their legal inheritance, which creates much work for contemporary legal scholars.
Character merchandising: aspects of legal protection
Authors: McGee Andrew , Gale Sarah , Scanlan Gary
Published: April 2006

The article considers the present state of the law of character merchandising. It questions whether the law relating to character merchandising should be further developed and extended so as to give an individual a comprehensive right to prevent the unauthorised use of aspects of his personality by third parties in connection with the promotion or sale of goods or services. In this context the article rejects the creation of new comprehensive remedies such as a tort of appropriation of personality as being undesirable and impractical. The article maintains that unauthorised acts of personality appropriation or use are already subject to adequate legal control through the law of trade marks and passing off. In this regard the article further suggests that tortious remedies such as defamation, malicious falsehood, and, in restricted circumstances copyright, provide effective sanctions against the unauthorised use of an individual's persona in commercial enterprises in particular and special circumstances. These remedies supplement and complement the principal remedies provided by trade mark protection and passing off.
History's living legacy: an outline of ‘modern’ historiography of the common law
Authors: Smith K J M , McLaren J P S
Published: April 2006

This essay offers a survey and analysis of the principal methodologies adopted and the aims pursued by ‘modern’ historians of the common law in England, Canada, and America, from Blackstone's time to the opening of the twenty-first century. From the beginning of this period through to the 1950s, the analysis reveals a steady current of contention amongst legal historians in respect of what legal history could do and just how these aims might be realised. The post-1950s era is characterised by the accelerating influence of the methodologies and objectives of extra-legal disciplines. These include, most especially, the work and techniques of social and political historians, and, eventually, the various manifestations of the postmodernist challenge to the segregation of ‘objective’ historical interpretation from the polemical and creative reconstruction of the past. It is argued that the infusion of this methodological new blood has been largely beneficial, enhancing the reach and subtlety of legal historiography, and boosting its overall capacity to act as an intellectually enriching discipline.
Questioning the ‘true effect’ of the Human Rights Act
Authors: Morgan Jonathan
Published: April 2006

One of the most important issues arising from the Human Rights Act 1998 is the degree of its applicability, if any, to relations between private individuals. While the wording of the Act itself provides no clear guidance on the matter, and a wide-ranging spectrum of potential outcomes has been identified, there is an emerging academic consensus that the Act will have some horizontal effect – but limited to enabling development of the existing common law, and not extending to provision of new actions and remedies. This paper seeks to challenge that consensus. Fidelity to the jurisprudence of the European Court of Human Rights requires that the effect of the Act go beyond mere incremental development. There is clear authority that the legal systems of signatory states must provide remedies for infringement of individual rights by other individuals. Nothing in the Human Rights Act 1998 obstructs this interpretation. Further, the paper seeks to identify certain fatal errors in the arguments of the ‘developmental consensus’ .
Clause 106 of the Adoption and Children Bill: legislation for the ‘good’ father?
Authors: Wallbank Julie
Published: April 2006

This paper critically evaluates clause 106 of the Adoption and Children Bill that permits for unmarried fathers to acquire parental responsibility on joint registration of the child's birth. I will argue that there are two factors influencing the proposed expansion of the ways in which fathers may acquire parental responsibility. First, current law recognises the automatic parental responsibility of mothers but only of married fathers, and so is said to contain an imbalance in favour of mothers. Secondly, there is a perceived need to recognise the father's commitment to the child, which is allegedly demonstrated through the act of registration. This paper examines these two themes by reviewing recent case law relating to section 4 applications. It will show that the current law does at least place an emphasis on fathers showing some merit to the court and will argue that the reform in itself will do little to enhance and promote the relationships between children and fathers. However, as a result considerable incursion will be made into the control that women, as primary carers, have in relation to their children.
Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention
Authors: Elliott Mark
Published: April 2006

Although the constitutional reform programme undertaken by the Blair administration is formally consistent with the doctrine of parliamentary sovereignty, it is clear that the human rights and devolution legislation, in particular, significantly alter the political and constitutional environment within which Parliament's legislative powers are exercised. This paper considers whether it is meaningfiul, within this new constitutional setting, to adhere to the traditional notion of sovereignty. It is argued that the disparity between a Parliament whose powers are formally unlimited yet increasingly constrained, in political terms, by norms based on fundamental rights and devolved governance may be accommodated, in the short term, by means of constitutional conventions which trace the constitutionally acceptable limits of legislative action by Parliament. However, following examination of the nature of convention and its relationship with law and constitutional principle, it is argued that the possibility arises, in the long term, that conventional limits upon legislative freedom may ultimately evolve into legal limiis, thus ensuring that the fundamental values embraced by the legal order are acknowledged not merely in pragmatic or conventional terms, but as a matter of constitutional law.
Sanctity of life — are some lives more sacred than others?
Authors: Michalowski Sabine
Published: April 2006

Court decisions concerning the life and death of patients become more and more frequent in the context of medical practice. One of the most controversial decisions in this area in recent years has been the decision of the Court of Appeal in Re A (Conjoined Twins: Medical Treatment), authorising the separation of conjoined twins. This paper will argue that the decision was flawed both on legal and moral grounds and that its potential implications for future cases are more far-reaching than the judgment itself suggests.
Tort, regulation and environmental liability
Authors: Lee Maria
Published: April 2006

This paper considers certain proposals made by the European Commission on environmental liability, particularly in itsWhite Paper on Environmental Liability. Civil liability has made a relatively minor contribution to environmental policy in recent decades, given its many well-known shortcomings when applied to environmental problems. Its usefulness, however, is being reassessed, given something of a consensus that traditional forms of regulation are reaching the limits of their effectiveness and that new approaches to environmental law are necessary. This paper will consider how the White Paper would move beyond the limitations of existing civil liability frameworks, in particular the fundamental incompatibility between the interests recognised in English tort law and the interests at stake in environmental protection. The Commission's recent retreat from the more ambitious elements of the White Paper may be a matter of concern.
In praise of legal feminism
Authors: Naffine Ngaire
Published: April 2006

This paper reflects on the achievements of feminism within the legal academy. Rather than offer an encyclopaedic account of feminist legal scholarship, it seeks instead to define, in broad terms, the aims, the spirit and the methods of legal feminism, identifying the commonalities among feminist scholars. It suggests that it is the critical study of law as ‘a form of life’, to borrow from Wittgenstein, which perhaps best characterises the shared endeavour of legal feminists. The paper identifies the major intellectual and political difficulties encountered, and also engendered, by feminists in the course of their work, and it assesses the impact of feminism on mainstream jurisprudence.
Proprietary rights in human bodies, body parts and tissue: regulatory contexts and proposals for new laws
Authors: Skene Loane
Published: April 2006

This paper examines the law on the proprietary rights of people in respect of their bodies, body parts and tissue. Proprietary rights include rights of ownership and control, The paper argues that the context in which judicial decisions are made and policy recommendations are developed sometimes results in a patchwork of legal principles. Being aware of the context in which different aspects of the law have been developed enables us to understand why principles have been developed, what is needed to reconcile them and how we can establish a coherent regulatory regime. The paper then proposes such a scheme to deal with property and control rights in this area. It argues that people (or the personal representatives of people who have died) should have a personal autonomy right to be consulted about the use of their corpse or their excised body parts or tissue in teaching, research and commercialisation of biological inventions, and to refuse or to impose conditions. They should not, however, have a right of ultimate ownership in their corpse, body parts or tissue, except for the limited right of personal representatives to gain possession of bodies and body parts of people who have died for burial or cremation if they so wish. That right should not extend to tissue preserved on slides, in paraffin wax or similar format. That tissue should be subject to proprietary interests in favour only of the hospital, research institute, its staff or the people to whom they transfer it. The same rule should apply to bodies or body parts held by a hospital or research institute with the consent of the person concerned, though the bodies or body parts may ultimately have to be returned for burial or cremation. Tissue removed under a statutory requirement without consent, such as for coronial investigation or forensic tests, should be used only for the purposes prescribed by the relevant legislation.
Racism and police investigations: individual redress, public interests and collective change after the Race Relations (Amendment) Act 2000
Authors: Field Stewart , Roberts Pauline
Published: April 2006

This paper considers the impact of the Race Relations (Amendment) Act 2000. It focuses on the kind of situation presented by the Stephen Lawrence murder investigation where racist stereotypes and assumptions infect both police inquiries into serious violent crime and the treatment of victims or their families. It first demonstrates the limited scope of individual redress available prior to the Act in such situations (examining police complaints mechanisms, private prosecutions, misfeasance in public office, judicial review and negligence). It links limitations in the scope of individual redress to a traditional priority accorded to public interests. The Race Relations (Amendment) Act 2000 gives individuals a general right to sue the police for racial discrimination in investigations. It is argued that a similar right probably now exists – at least in the context of life-threatening violence – under the Human Rights Act 1998. These developments seem to signal a shift in the balance between individual rights and the limiting claims of public interests. But the singularity of the 2000 Act is that, in introducing the mechanisms and logic of anti-discrimination law into the criminal process, it creates the potential for a more interactive relationship between individual complaint and the public interest in the collective promotion of change.
Efficiency, disgorgement and reliance in contract: a comment on Campbell and Harris
Authors: Jaffey Peter
Published: April 2006

In a recent article in this journal, David Campbell and Donald Harris criticise the House of Lords decision in A-G v Blake, which held that in some circumstances there can be a liability to surrender the profits of a breach of contract to the other contracting party, ie a liability for disgorgement, as it will be referred to here. The criticism invokes what is sometimes referred to as the economic theory of efficient breach, which can be expressed briefly as follows. The performance of contracts generally increases aggregate wealth – ie is efficient – because parties will contract only on terms that provide them with a benefit that exceeds their costs of performance. But sometimes the circumstances will change after contracting, such that overall wealth will be maximised if the contract is not performed as agreed. For example, the defendant contracting party may discover an opportunity that he or she can take up only by abandoning the contract, and this opportunity may generate enough money to leave a profit, even after the claimant has been compensated for breach.