bluuebunny/crossref_metadata_2025 huggingface dataset:
Socialist mountains out of capitalist molehills: ownership and use of land in the German Democratic Republic
Authors: Forder Caroline
Published: April 2006

To understand the rights in land of a person in the GDR the first task of an English lawyer is to consider the rules being applied in terms of concepts and institutions in operation in England. The GDR have opted for a ‘mixed’ property system, retaining ‘pure’ personal ownership (similar to the rights given to landowners under English law) alongside the socialist creatures: contractual rights (use-contracts) and the hybrid use-rights in public land. Property law has long provided for the creation of rights which provide at the outset for the conditions under which the right will end; this is one of the principal attributes of leasehold tenure in England. It is indeed striking how many of the characteristics of use rights can be discovered among the provisions and decisions upon the security of tenure of tenancies in England.
The recognition of extra-judicial divorces in the United Kingdom
Authors: Young James
Published: April 2006

Extra-judicial divorces obtainable under some systems of family law are now very familiar to private international lawyers. The most familiar is the Muslim talak, by which a husband may unilaterally divorce his wife, but there are others including other forms of religious divorces and secular divorces obtained by administrative process or simply by mutual agreement. Some of these divorces may be hedged around by legal procedures; others may be extremely informal.
The ideologies of contract
Authors: Adams John N , Brownsword Roger
Published: April 2006

The immediate problem of Plato’s prisoners in the cave, it will be recalled, was understanding what was going on in the cave (for they could see only the shadows on the wall). In our contention, the situation of those who try to operate consistently within the constraints imposed by the traditional exposition of contract (sometimes pejoratively referred to as the ‘black-letter’ approach), is somewhat akin to that of Plato’s prisoners. They may perceive shadows, but they are unable to interpret them from the confines of their position. The purpose of this article is to sketch a framework for the law of contract, which we hope will assist in this interpretive exercise.
The myth of subjectivity
Authors: Goddard David
Published: April 2006

Lawyers place great stress on the ‘objectivity’ of the law’s approach to agreements. Humpty-Dumpty may claim that ‘when I use a word it means just what I want it to mean, no more and no less’, but a lawyer would advise Humpty that the law, should it interest itself in any promise he made, would be interested not in what he meant by what he said, but in how a reasonable man would understand that which was said. This, the lawyer would explain, is the dichotomy between the subjective and the objective interpretation of words, and it is a dichotomy which has considerable influence on lawyers’ and judges’ thought. Treitel discusses it on the first page of his text, and the very title of one of the chapters of Cheshire, Fifoot and Furmston, ‘The Phenomena of Agreement’, is derived from the law’s concern ‘not with the presence of an inward and mental assent but with its outward and visible signs.
An exercise on the internal logic of legal systems
Authors: Örücü Esin
Published: April 2006

At the outset, an exploration of the terms exercise, legal system, and internal logic used in the title of this paper may be useful. The assumption that a legal system has an intrrnal logic, also needs accounting for.

I call this an exercise because it is but a preliminary search for an all-embracing explanation for various specific and isolated observations related to legal systems; an attempt to prove that legal systems unfold in a way predetermined by their internal logic and that every step in this unfolding is a sine qua non of the one before and after. This is also called an exercise, because it is an attempt at analysing only three of the legal families or cultures.
Testamentary promises
Authors: Davey Martin
Published: April 2006

This article deals with what must be a common domestic scenario. It concerns the entitlement, if any, of a claimant (C) to the property of a deceased person (D) where D, during his lifetime, had promised C that he (C) would obtain certain property on D’s death, but where, on D’s death, C is not able to establish either a valid will in his favour or entitlement under the intestacy laws.

Of course if C simply relies on a a gratuitous promise by D without any more, then any claim will fail. The promise is not an enforceable contract, or a perfect gift or an effective testamentary disposition, but there are circumstances where C could obtain aremedy foundedonsuch apromise.
Judicial review where the Attorney General refuses to act: time for a change
Authors: Hough Barry
Published: April 2006

‘Today, therefore, the controlling factor in determining whether the exercise of a prerogative power is subject to judicial review is not its source but its subject matter.’ So uttered Lord Scarman, expressing the view of the majority of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case). The Attorney General, in deciding whether to institute proceedings for the enforcement ofa public right, exercises a power vested in him by virtue of the royal prerogative. This power, it was previously held, was ‘absolute and non-reviewable’. The question now arises as to whether the Attorney General’s discretionary powers are embraced within that category of prerogative powers whose subject matter renders them amenable to judicial review, or whether they remain beyond judicial scrutiny.
Keeping promises: the moral and legal obligation
Authors: Stoljar Samuel
Published: April 2006

It is often assumed that a promise is not legally enforceable unless, as a necessary though not sufficient condition, the promise is morally ‘obligatory’ or ‘binding’. If this assumption is correct, or can be shown to be tenable, highly interesting and important things follow for both legal and contract theory. Promise-keeping emerges as a moral obligation before it is a legal one, the legal duty becoming but a sanctionable extension of the moral obligation, its continuation so to speak by other means. There is thus no fundamental break separating moral from legal promises; for even a legal promise, particularly or most visibly one not covered by existing authority, cannot be fully justified as to why it ought to be kept without support from moral grounds. In the first three sections we therefore consider the moral reasons we may advance in support of an obligation to keep promises. In the last two sections we try to relate these moral considerations more specifically to contract law.
Governmental liability in tort and the public and private law division
Authors: Samuel Geoffrey
Published: April 2006

The recent litigation arising out of the Spycatcher affair was bound by the very nature of the issues at stake to be controversial; yet whatever view is to be taken of the rights and wrongs behind these issues one aspect of the litigation that was always likely to give rise to difficulties and to leave the common lawyers open to criticism was the conceptual framework in which these issues were handled. Ought serious constitutional questions like press freedom - questions that involve not just the public ‘interest’, but also the public’s ‘right’ to information in a democracy - to be debated at the level ofprivate ownership? Indeed is it actually rational to treat a government body, in relation to another government body or to the press, as if it were a private citizen entitled to the same rights (for example a ‘right to privacy) the human legal subject?
Controversy in the criminal law
Authors: Lucy William
Published: April 2006

The issue addressed here is that of understanding and giving meaning to mens rea concepts in the criminal law; I look in particular at intention and recklessness. The point made is that the controversy surrounding the proper meaning and understanding of these two concepts - a dispute about their appropriate contours - cannot be solved in the manner so far assumed. It follows that it is a vain hope to expect clear, unambiguous and non-controversial formulations of these concepts.

The argument has a three-fold structure. First, it is suggested that we are locked into this controversy whether (i) we insist that our mem rea concepts do, and should, bear the same meaning they have in ordinary non-legal discourse; or (ii) we insist that such concepts do, and should, bear a technical meaning, distinct from whatever ordinary meaning they may have, which is better suited to the requirements of the criminal law. These are the two traditional strategies used in attempting to solve any controversy about the contours of mens rea concepts and I will show how they are potentially controversial.
Estoppel and obligation: the modern role of estoppel by convention
Authors: Dawson T. Brettel
Published: April 2006

Even the casual observer of trends in estoppel jurisprudence may have noted that discussions of promissory estoppel have recently become less ubiquitous in reported decisions. What may have been less apparent, but of no less significance, is that during this period there has been an upsurge of interest in estoppel by convention as a basis for judicial action. Although this doctrine was once referred to as being ‘as old as the hills’, it had languished in judicial and academic obscurity for many years prior to current interest. More recently it has been hailed as ‘an essential arrow in the quiver of every commercial counsel’. This phenomenon has occurred against the backdrop of a proliferation of so-called ‘equitable’ and proprietary estoppels, and judicial and scholarly exasperation at the disorder into which estoppel issues generally appeared to have fallen.
Parliamentary privilege and the broadcasting of Parliament
Authors: Leopold Patricia M.
Published: April 2006

After years of debate, and pages of parliamentary reports, the House of Commons has agreed in principle to allow the televising of its proceedings, both in the Chamber and in Select Committee hearings.’ The purpose of this article is to consider the application of parliamentary privilege to the broadcasting of Parliament by radio or television. The issue of parliamentary privilege arises because of the absolute privilege’ of freedom of speech for Members, which enables them in the course of ‘proceedings in Parliament’ to say or do something which, had it been said or done elsewhere, could have given rise to civil or criminal liability by the person concerned. Absolute privilege exists because it is of outstanding public importance that Members should be able to speak their minds, and this outweighs any consequential harm that may be suffered by an individual or the State. Examples of the use of the protection of absolute privilege are the making of a statement that appears to be defamatory, and the oral commission of one of a variety of criminal offences.
The end of the affair: duty of care and liability insurance
Authors: Davies Martin
Published: April 2006

Duty of care is in dire straits. Until recently, Lord Atkin's ‘neighbour principle’ was ‘the very foundation of the law of negligence’. It was a simple, all-purpose test for the existence of a duty of care. However, times have changed. There has been a loss of confidence in the neighbour principle. Its suitability as a general test for duty of care has been questioned, in a way that would have been unthinkable only a decade ago. In 1970, it was still possible to say that the principle ‘ought to apply unless there is some justification or valid explanation for its exclusion’. By 1984, apostasy had set in, and it was said that the principle ‘has long been recognised as not intended to afford a comprehensive definition’ In 1978, Lord Wilberforce attempted to make the principle more workable by marrying it to policy considerations in a two-state test for duty. Even this modified version of the principle has now fallen out of favour. In 1987, it was said of Lord Wilberforce's two-stage test that it ‘is not to be regarded as in all circumstances a suitable guide to the existence of a duty of care.’
Improperly obtained evidence: a reconsideration
Authors: Choo Andrew L.-T.
Published: April 2006

The issue of the admissibility of improperly obtained non-confessional evidence in criminal proceedings has been the subject of considerable academic discussion. However, much of the discussion in England has been confined to an exploration of the deficiencies and internal inconsistencies of the English law in the area. In particular, the House of Lords decision in R v Sang has been subjected to intense scrutiny and criticism. Little has been written which examines the theoretical issues associated with the problem of improperly obtained evidence, with view to laying down foundations for a new approach. It is this task which I seek to undertake here. First, it will be demonstrated that the major Anglo- American legal systems have all abandoned rules ofmandatory inclusion and mandatory exclusion of improperly obtained evidence in favour of more flexible positions whereby such evidence is to be admitted in some circumstances but excluded in others. This suggests that rules of mandatory inclusion and mandatory exclusion have been perceived to be undesirable.
What's wrong with the traditional Criminal Law course?
Authors: Alldridge Peter
Published: April 2006

I am going to attack a particular type of undergraduate Criminal Law course. I do not have in mind any particular course currently taught. I do not assume that it is the textbooks which provide the model from which courses proceed. The sort ofcourse upon which I want to make an attack has many features, amongst which the following are to be found:

(i) It is a ‘blackletter law’ subject. The course concentrates upon statutes and reported cases. Social scientists’ work is not used, nor is it relevant to the issues considered. This tends to encourage the view that the All England Reports are a mirror of life. The standard exam question is of the ‘problem’ type, in which the student is called upon to isolate the legal issues arising out of a set of hypothetical facts.
Kelsen on legal interpretation
Authors: Paulson Stanley L.
Published: April 2006

A number of writers have invited attention to the fact that Kelsen, in a long and extraordinarily productive career, gave very little attention to questions of legal interpretation. Kelsen's younger colleague in the Vienna School of Legal Theory, Fritz Schreier, himself a legal philosopher of note, remarked in 1929 that the Vienna School had neglected interpretation. Michael Thaler made the same point a half century later, writing that Kelsen devoted himself ‘entirely to an elucidation of the object of interpretation’, that is to say, the legal norm itself, without providing any details on ‘ how interpretation is to be done’. Other recent writers go further: Klaus Adomeit dismisses Kelsen's theory of interpretation as ‘methodological nihilism’ Günther Winkler writes that Kelsen’s theory, although ‘simple’, is both ‘mistaken and misleading’. Indeed, most recent writers who have examined the Pure Theory of Law on questions of legal interpretation take a dim view of Kelsen's work in the field.
Criminal omissions and public duties: the French experience
Authors: Ashworth Andrew , Steiner Eva
Published: April 2006

Whether or not the events of 1992 will have significant effects on the criminal law, there is good reason for looking hard at those respects in which English criminal laws differ in scope from those of our European neighbours and partners. One obvious example concerns crimes of omission, especially those founded on public duties. German law has long had offences of failing to render assistance to a person in peril and similar offences are to be found in other countries such as Denmark, Finland, Italy, Russia and Spain. These laws stand in contrast to the English position, which remains essentially the same as Sir James Fitzjames Stephen described it in 1883:
Exemplary damages in the English law of tort
Authors: Ghandhi P. R.
Published: April 2006

At common law, the primary remedy for a successful plaintiff in an action in tort is an award of damages. The plaintiff must be put in the position in which he was before the tort was committed so far as money can do this. In many actions the principle of restitutio in integrum is a sufficient guide to the quantum of damages. But, in other cases, for example, actions for damages for personal injuries or defamation, a highly subjective element is involved. Neither personal injury nor loss of reputation is easily convertible by the use of any yardstick into an exact monetary figure.

In some cases, the damages are said to be ‘at large’. This signifies that the award is not limited to the pecuniary loss that can be precisely proved. Where damages are ‘at large’, as they are, for example, in assault, false imprisonment or malicious prosecution, trespass and defamation, they may be conveniently divided into three separate elements. First, there is the compensation for the actual harm caused to the plaintiff by the defendant; in addition to any pecuniary loss specifically proved, the assessment will involve putting a monetary value on the physical hurt in assault, on curtailment of liberty in false imprisonment or malicious prosecution, on injury to reputation in defamation and on inconvenience and disturbance in trespass.
Raising the standard of care
Authors: Holyoak Jon
Published: April 2006

Mounting concern over the burgeoning growth and impact of the tort of negligence has, as is well known, led to a backlash in recent years. The higher courts have re-imposed more restrictive approaches to the question of the duty of care, culminating in the assertion that ‘close and direct proximity’ is the pre–condition for the imposition of a duty of care, by the Privy Council in Yuen Kun Yeu v A–G .f Hong Kong. However, this attention, focussed on what are generally cases peripheral to the mainstream of tortious liability, has diverted many commentators away from the issue of breach of duty, which lies at the heart of the great preponderance of tortious litigation
Compensation for tenants’ improvements: a valediction?
Authors: Haley Michael
Published: April 2006

At common law, any improvements made by a tenant (unless classified as ‘tenants’ fixtures' and, thereby, removable) form part of the freehold and, at the end of the lease, must remain for the reversioner. Subject to the law of waste and to any contrary stipulation in the lease, the tenant remains free to carry out improvements, but is not entitled to compensation. This common law approach can be viewed as a potential benefit to landlords when the improvement adds to the value of the reversion. It may, however, stand as a disincentive to tenants who might otherwise have effected improvements to their properties. It has fallen to Parliament to redress what is widely regarded as this lack of equity.
Some reflections on the case method
Authors: Weaver Russell L.
Published: April 2006

In 1870, Christopher Columbus Langdell introduced the case method of teaching at Harvard, and dramatically altered the course of legal education in the United States. His method, involving student examination of judicial decisions coupled with Socratic style analysis, ultimately gained widespread acceptance. Today, most US law teachers use the case method. They continue, to varying degrees, to use Socratic questioning as part of that method. But, despite the method's widespread adoption, it has always had critics including both law students and law teachers.
Rejoinder-a plea for excuses
Authors: Wilson William
Published: April 2006

Professor Williams calls me a malcontent. I believe I have an excuse. The law of murder does not do what it should do. Present doctrine allows some who do not deserve the stigma of murder to be convicted, and allows others who do deserve the stigma to avoid it. This, in my view, is a failure of justice - of fairness. It is the result of judges, academics, and others believing that problems in the real world cannot be resolved by internally consistent legal rules. They are pragmatists. My plea for rationality in murder is nothing more pretentious than a repudiation of such pragmatism. It is a plea that the substantive purposes of the law of murder should find expression in formally rational doctrine.
The challenge of artificial intelligence: can Roman law help us discover whether law is a system of rules?
Authors: Samuel Geoffrey
Published: April 2006

It may or may not be possible to develop an Artificial Intelligence model of legal reasoning that accurately reflects the processes of the legal mind, but one positive result that could well emerge from all the research into such modelling is a fundamental reassessment of legal theory. The paradigm that legal reasoning is essentially a rule based activity may well have to be discarded in favour of an epistemological model that is very much more complex, in the systems sense of this term, than the hierarchical structure traditionally associated with jurists since the Enlightenment (if not since the Byzantines) and represented in one of its most perfect theoretical forms today in Kelsen's model. It is the purpose of this paper to examine, if only briefly, this challenge to conventional legal theory (Part I) and, using systems theory, historical jurisprudence and Justinian's Digest (Part II), to suggest an alternative epistemological model (Part III).
Negligence and defective buildings: demolishing the foundations of Anns?
Authors: Giles Marianne , Szyszczak Erika
Published: April 2006

It was generally accepted that the House of Lords in Anns v Merton LBC introduced an ‘entirely new type of product liability’ into the law of tort by expanding liability in negligence in relation to the construction of defective buildings. The novelty of the action was to introduce liability in tort for the construction of the defective product itself and to allow a claim for economic loss resulting from the defect. The consequence was to blur some of the traditional boundaries between contract and tort claims and to cause controversy in relation to the nature of the allowable loss recoverable from the negligent act. In particular it led to the question of whether such claims fell into the category of ‘pure economic loss’: a loss not easily accepted in conventional tort jurisprudence.
The European Court of Justice: taking rights seriously?
Authors: Coppel Jason , O'Neill Aidan
Published: April 2006

It is easily assumed that the use of the language of fundamental rights protection by the European Court of Justice translates directly into an extension of the actual protection of those rights within the European Community. It is the purpose of this paper to question that assumption.

Whilst it would appear to be widely accepted that the initial motivation for the adoption of the terminology of fundamental rights by the European Court of Justice was a desire to defend the supremacy of Community law over national law, a close analysis of certain recent cases in the European Court shows that the court has begun to use rights talk in a different way.
Changing the nature of adoption: law reform in England and New Zealand
Authors: Bridge Caroline
Published: April 2006

In both England and Wales and New Zealand adoption law is under review. A series of discussion papers followed by a Report to Ministers has been published in this country, while New Zealand has published an interim proposal for amendment ofexisting legislation prior to a later full review The time is right therefore, to consider and compare the basis upon which adoption law reform is proceeding. The opportunity to question the nature of adoption as a legal construct and examine the particular patterns offamily morality that it promotes is timely. Equally, it is timely to re-assess the philosophical underpinning of the Adoption Act 1976 in light of the particular ideology imported into family law in England and Wales by the Children Act 1989. The Act stresses the durability of parenthood and establishes the concept of parental responsibility which survives both divorce and a child care order. While containing points of confluence with adoption law, the new ideology nonetheless clashes with the existing concept of adoption in certain fundamental ways.
The development of the picketing immunity: 1825–1906
Authors: Kidner Richard
Published: April 2006

‘Men are in the habit of taking an erroneous view of what they may be permitted to do in the shape of picketing.’

Throughout its history, the law on picketing has been a matter ofdispute between those who see any interference with an employer’s ability to carry on his business as wrongful, and those who see picketing as an essential and lawful part of that collective strength which is a prerequisite of effective bargaining. Sometimes the issue is seen as one of industrial relations, sometimes as one of civil liabilities and sometimes as one ofeconomic theory, but in the event the resolution of the debate has been mostly political. Over the past 170 years many attempts have been made to set the balance but a permanent answer cannot be achieved, since the economic and political considerations of each era will lead to a re-assessment of the appropriate balance.
Hunting the Chimera–the end of O'Reilly v Mackman?
Authors: Alder John
Published: April 2006

The rule in O’Reilly u Mackman is well known. As a result of Lord Diplock’s speech in that case, the scope of the application for judicial review procedure under s 31 of the Supreme Court Act 1981 and RSC Ord 53, has been dominated by attempts to distinguish between public and private law. According to Lord Diplock, public law cases must normally be pursued under the special Ord 53 procedure whereas private law cases even though involving substantive principles of judicial review must be pursued in ordinary courts. There are also hybrid cases - chimeras which combine features both of public and private law. In such cases the challenger is apparently free to proceed either under Ord 53 or by way or ordinary action or defence. These hybrids are not easy to reconcile with the purposes and policies behind the O’Reilly rule.
Business tenancies and interventionism: the relegation of policy?
Authors: Haley Michael
Published: April 2006

Part II of the Landlord and Tenant Act 1954 is a measure of protective legislation that concerns purely commercial relationships and it is apparent that the degree of protection, and the need to redress inequality, is less than, say, with the housing market. The Act represents an unusual and complex measure of political and economic engineering. By an interference with the parties' freedom of contract, the policy of the Act is to provide security of tenure and to promote equality ofbargaining strength between commercial landlord and tenant. The aim was to prevent a tenant at the end of the contractual term facing business closure or being compelled to accept a new lease at an exorbitant rent. Although a derogation from the common law rights of the landlord, the Act was intended to make only limited inroads on the free market. In contrast to such areas as employment law and residential lettings, the transition from contract to status was to occur with a minimal disruption of market forces.
Defining interviews under PACE
Authors: Field Stewart
Published: April 2006

In recent years the meaning of the word ‘interview’ has become central to the regulatory framework of PACE. In part, this flows directly and inevitably from the terms of the act itself. If a verbal exchange between suspect and police is an interview, certain procedural consequences follow: it must normally be contemporaneously noted verbatim or taped; if the suspect is a juvenile or mentally disordered, it must usually take place in the presence of an ‘appropriate adult’. Furthermore, as a result of the recent revision of Code C on ‘Questioning’, persons arrested for an offence may not normally be interviewed about it except in a police station.
Statement of Minimum Holdings for Law Libraries in England and Wales (revised 1993)
Authors: Weston Clive
Published: April 2006

The Society first issued its Statement of Minimum Holdings for Law Libraries in England and Wales in 1958. Revised versions appeared in 1970 and 1975. A supplementary list covering the law of the European Communities and of the then seven continental Member States appeared in 1974. The most recent revision, including the law of the Community but no longer of continental countries, appeared in 1986.

The present revision was authorised by the Council of the Society in 1992, in order to have a list which is up-to-date and also, being stored on disk, can be continuously revised. The list (whose purposes remain those stated in the introduction to the 1970 version by Professor Sir John Smith) must be regarded as provisional.
Loan funds and the trustee's profit
Authors: Aitken Lee
Published: April 2006

A trustee or fiduciary may mix trust money with his own, purchase property, and make a profit upon its sale when the property subsequently increases in value. Frequently, however, the trustee will use the misapplied money in order to raise further funds by way of a loan with which he then purchases the property. In the first case, equity’s conventional approach is to apportion the increase in value rateably between the funds from the trust and the trustee’s own contribution so that the trust obtains that proportion of the profit derived which the misapplied funds bear to the purchase price. This result flows from the decision of Hudson J in the Supreme Court of victoria in Scott v Scott from which no cross-appeal was taken to the High Court of Australia.
National Courts as European Community Courts
Authors: Maher Imelda
Published: April 2006

The national courts of the European Community are faced with a formidable task. On the one hand, judges are appointed and operate within their own domestic legal order, and derive their authority from their national constitutions. On the other hand, with the advent of the Community and the development of the doctrines of direct effect and supremacy, they have acquired a Community mantle and are responsible for the implementation of directly effective Community rights within the national realm. This paper examines how the role of the national courts has been created, what basis exists for it in the Treaty and the theoretical underpinnings of the role. In short, why are the national judiciary also Community judges: and to what extent can they be truly so?
Battered woman syndrome and defences to homicide: where now?
Authors: Wells Celia
Published: April 2006

For many women, the abuse of power in the form of physical and emotional battering by their so-called ‘partners’ is a fact of life. Individual women feel the pain, the humiliation, the fear and the anger. But the debate about how legally we should respond to a woman who finally kills her abuser is significant beyond the individual. Whatever the predicament of women such as Sara Thornton, or Kiranjit Ahluwalia, sentenced to life imprisonment and forced to scale seemingly impossible obstacles in the appeal process, the exponential rise in literature on this subject is quite disproportionate to the number and increase (if any) in such cases. The real significance of the ‘self-defence for battered women’ movement lies less in these concrete examples and more in its metaphorical role as witness to the social reality of the abuse of women.
The limits of contractual order in public sector transacting
Authors: Vincent-Jones Peter
Published: April 2006

Contract is playing an increasingly important part in the restructuring of the public sector in Britain in the 1990s. The direct providing role of the state is being reduced through the ‘contracting out’ of ancillary and core services in the NHS, central and local government, whilst the policy aim of increasing the efficiency of public sector management involves contract in the operation of internal markets, the creation of specialist agencies with clearly defined functions and responsibilities, the devolution of financial responsibility to budget-holding business units operating in internal trading relationships, and the exposure of internal workforces to private sector competition through compulsory competitive tendering (CCT). However, the widespread adoption of a common ‘language of contract’ to describe processes occurring in these different contexts disguises a variety of meanings and functions.
Odysseus and the binding directive: only a cautionary tale?
Authors: Morgan Derek
Published: April 2006

Before Odysseus navigates the rocks on which live Scylla and Charybdis he is lulled by the Sirens, promising advance disclosure of earthly adventures. Forewarned by Circe, he enjoins his crew first to contain him; later (on pain of death) to release him from the mast to which he is bound. Held to his originally expressed wishes, they refuse, and bind him more tightly. In this way, Odysseus creates what may have been one of the first advance directives. Its enforcement illustrates one of the concerns which have latterly been expressed about making binding health care choices, possibly many years before they might take effect

‘People do not always mean what they say; they do not always say what they want; and they do not always want what they say they want. That much is, if not exactly clear, at least uncontroversial. What is controversial is, recognizing this, how to proceed.’
What do the French think of their jury? Views from Poitiers and Paris
Authors: Munday Roderick
Published: April 2006

On 18 December 1993 The Independent reported that two brothers had been convicted of manslaughter in Saratov, in the Volga region, in the first jury trial to be held in Russia since the Revolution. Japan is poised, should it so wish, to reinstate jury trial, an institution it abandoned with little regret in 1942; Argentina is considering the introduction of juries; it is possible that in conformity with article 125 of its constitution, Spain, too, may yet bring forward proposals for a form of trial by jury. Such developments prompt the thought that, although a growing number of non-common law jurisdictions around the world are espousing jury trial (or, at least, giving serious thought to the possibility), and although several European civilian jurisdictions already operate forms of trial by jury, there is a lack of reliable information about the place the jury occupies in the public's and the legal profession's mind in non-common law jurisdictions.
The province of jurisprudence determined-again!
Authors: Barnett Hilaire
Published: April 2006

This report presents the findings of the survey conducted in 1993/94, this survey being an updated version of one conducted in 1983/94. The present study has been expanded to cover Australian and Canadian (Common Law) universities, and as in previous surveys has been conducted primarily through the medium of a detailed questionnaire.

In each of the jurisdictions surveyed there exist parallel concerns about legal education and, of more direct interest here, the role of Jurisprudence and Legal Theory within the law curriculum. By drawing on data received from Australia, Canada and the United Kingdom and the literature on legal education, this article aims to provide a comparative study of the extent to which Jurisprudence features in the academic training of the next generation of lawyers, a large proportion of whom will enter a profession characterised by a shared common law tradition.
Free speech in Parliament and the courts
Authors: Leopold Patricia M
Published: April 2006

The Privy Council decision in Prebble v Television New Zealand Ltd on parliamentary privilege in the New Zealand House of Representatives might at first sight seem to be of little concern to either the British courts or the Westminster parliament. However, the New Zealand parliament bases its freedom of speech on article 9 of the Bill of Rights 1688. Indeed the need to allow MPs to speak freely in proceedings in parliament without fear of legal action is accepted as a basic principle throughout the Commonwealth. It is perhaps surprising that there is relatively little English case law on the meaning of this article. This may be because as Lord Browne-Wilkinson observed in Prebble, article 9 is one manifestation of a wider principle, namely: ‘that the courts and Parliament are both astute to recognise their respective constitutional roles.
Hedley Byrne in the House of Lords: an interpretation
Authors: McBride Nicholas J , Hughes Andrew
Published: April 2006

The House of Lords has now handed down decisions in six cases which have involved extended discussions of the scope of liability to compensate another for pure economic loss under the Hedley Byme principle. It seems reasonable to suppose that we can now arrive, on the basis of those decisions, at some conclusions as to when and why such liability arises. In this article we attempt to amve at such conclusions. In so doing we avoid using the usual terminology- ‘duty of care’, ‘proximity’, ‘just and reasonable’, ‘policy’, ‘reliance’, ‘assumption of responsibility’, ‘equivalent to contract’, even ‘negligence’-which an analysis of the scope and rationale of liability under Hedley Byme would be expected to employ.
The things we do for love: detrimental reliance in the family home
Authors: Lawson Anna
Published: April 2006

The rules governing the acquisition of beneficial interests in family homes have generated a great deal of academic literature since their restatement, and apparent clarification, by the House of Lords in Lloyds Bank plc v Rosset. In what has become an all too familiar passage, Lord Bridge outlined the two methods by which such an interest can be acquired in the absence of writing. For a claimant to succeed under the first of these (the only one with which this article will be concerned), the court must be satisfied that there has been: (a) an ‘agreement, arrangement or understanding’ between the claimant and the legal owner to share the beneficial interest, evidenced by oral discussions between them; and (b) that the claimant has acted to her detriment, or significantly altered her position, in reliance on the agreement. If these requirements are satisfied the claimant will obtain an interest, according to Lord Bridge, by way of constructive trust or proprietary estoppel.
A new role for resulting trusts?
Authors: Swadling William
Published: April 2006

As Millett LJ recently remarked, there can be no doubt that ‘the most difficult question’ to be solved in the law of restitution is the exact circumstances in which a proprietary restitutionary remedy will be available to a restitutionary claimant. The boundary between restitution and property is still largely unmapped and continues to generate controversy. What is needed is a comprehensive and systematic enquiry into the effects that the various restitutionary factors (mistake, duress, failure of consideration and so on) have on the passing of property between plaintiff and defendant. That, however, would require a whole book, or, at the very least, a series of articles. This article takes a modest step in that direction by concentrating on one specific topic within the area of restitution and property, viz, the inter-relationship between the law of restitution and resulting trusts.
The myth of common intention
Authors: Glover Nicola , Todd Paul
Published: April 2006

The leading recent authority on beneficial interests in shared homes is Lloyds Bank plc v Rosset, where the House of Lords clarified what had become rather a confused area of law. By no means all the problems were resolved, however, and the House proceeded on the basis of a now commonly-held but nevertheless fundamental misapprehension, that common intention is relevant to the creation of a trust. It is our contention that once it is clear precisely whose intention is relevant, and why, many of the conceptual difficulties in this area disappear.

For the purposes of the discussion, we consider the two situations, where legal title to a home is vested in A alone, and where it is vested in A and B jointly. In each case, the question is whether B can claim a beneficial interest, and if so, what is its nature and extent.
Trawling for a remedy: state liability under Community law
Authors: Downes T A
Published: April 2006

This paper explores the implications for English law of the decision of the European Court of Justice in joined cases C-46/93 Brasserie du Pêcheur v Germany and C-48/93 R v Secretary of State for Transport, ex p Factortame (No 4) and subsequent decisions developing the principles enunciated therein. More specifically, it examines how the English law of torts is to accommodate the European law obligation to compensate, in appropriate circumstances, individuals suffering a loss as a result of a breach by the state of Community law. In confronting this question English law is engaged in the unfamiliar exercise of attempting to match a remedy to an already recognised right: the history of the common law, and the law of torts in particular, is of defining rights in the light of the existing remedies under which they could be asserted.
A library for the modern law school: a statement of standards for university law library provision in the United Kingdom—1997 revision
Authors: Daintith Terence
Published: April 2006

This is a first revision of the Statement of Standards for University Law Library Provision, first published in A Library for the Modem Law School (see Legal Studies, Special Edition 1995). As promised in the introduction to the Statement (ibid, pp 10-11), this revision updates the comments to the standards in the light of a further survey of library provision again undertaken, on behalf of the Society, by Dr Peter Clinch, Legal Specialist in the Library of the University of Wales, Cardiff. This further survey has been jointly organised with the British and Irish Association of Law Librarians (BIALL), and the Society is most grateful to BIALL for its collaboration. The updatings reflect, in particular, changes in the key library statistics contained in the comments and offered as measures by which individual libraries might assess their performance. A full report on the survey may be obtained from the Convener, Professor Daintith, at the School of Advanced Study, University of London. The Libraries Committee is much indebted to Dr Clinch and to his institution for this essential input to its work.
Anarchic armadas, Brussels bureaucrats, and the valiant maple leaf: sexuality, governance, and the construction of British nationhood through the Canada-Spain fish war
Authors: Herman Didi , Cooper Davina
Published: April 2006

In March 1995, amid ongoing Balkan conflict, Britain was forced to respond to hostilities emerging from a seemingly unlikely quarter. Angered by saturation fishing of Greenland halibut (turbot) in the North West Atlantic, especially by the Spanish, Canada dispatched warships to an area just beyond their 200 mile fishing zone. Guns were fired and one Spanish vessel was arrested in international waters and impounded. Spain, antagonised by Canadian actions and accusations, and with the backing of the European Union (EU), refused to withdraw from the area. They argued that their fishing practices, in contrast to Canada's actions, were internationally lawful. Conflict escalated, and media interest intensified on both sides of the Atlantic. The British government, facing increasing domestic support for Canada, attempted to steer a middle path. In particular, it tried to use its unique position, as a member of both Commonweulth and CommonMarket,to negotiate a compromise.
Classification of obligations and the impact of constructivist epistemologies
Authors: Samuel Geoffrey
Published: April 2006

In December 1996 Classification of Obligations formed the topic of one of a series of SPTL seminars under the general title of Pressing Problems in the Law. It may, perhaps, be asked quite why classification is a pressing problem, for it is by no means clear from the papers themselves that common lawyers have suddenly become more concerned about the internal structure of the ‘seamless web’. Nevertheless the seminar was a valuable opportunity to reflect upon a subject that is at least a useful vehicle for thinking about legal knowledge. Legal classification, in other words, raises questions of an epistemological nature. The purpose of this present paper is to pursue this epistemological point in an attempt to reveal how classification of symbolic knowledge (legal propositions or rules) hides much deeper issues about the role of non-symbolic knowledge (symmetries, images and isomorphs) in the formulation of legal solutions in the law of obligations.
Reconciling protection of children with justice for parents in cases of alleged child abuse
Authors: Hayes Mary
Published: April 2006

‘I am very conscious of the difficulties confronting social workers and others in obtaining hard evidence, which will stand up when challenged in court, of the maltreatment meted out to children behind closed doors. Cruelty and physical abuse are notoriously difficult to prove.”

‘My Lords, I am anxious that the decision of the House in this case may establish the law in an unworkable form to the detriment of many children at risk.’
The boundaries of the firm: the theories of Coase, Knight and Weitzman
Authors: Belcher Alice
Published: April 2006

Boundaries are of the utmost importance because they establish size and shape. In so far as changes in the law affect the elements making up the boundaries of the firm, such changes can be expected to have an impact on the size and structure of firms. Theories which are capable of explaining how operations within the firm are different from those outside can be used to draw the boundaries of the firm and so to define its essence or nature. In this article three theories which give substance to the boundaries of the firm are presented and analysed.

The major debate in recent corporate legal theory has been between the coercionists and the contractarians. This can be caricatured as a dispute between those who follow institutional arguments, seeing the firm as a concession of the State, and those who follow economic theory, seeing the firm as a nexus of contracts.
The reform of constitutional law in Hungary after the transition
Authors: Halmai Gábor
Published: April 2006

In Hungary, a comprehensive amendment to the 1949 Constitution took effect on 23 October 1989. According to the new preamble of the considerably amended Constitution, the revision was needed ‘in order to promote the peaceful political transition into the rule of law realizing the multiparty system, parliamentary democracy and social market economy’. This amendment changed not only the state organisation, but also the regulation of human rights.

The intention of distancing itself from the historical period of the past 40 years is expressed in para 1 of the amended Constitution, which proclaims that Hungary is a republic. With this, Hungarian constitution-making went back to a number of legal institutions incorporated in Act I of 1946 which is on the state form of Hungary adopted by the National Assembly, formed after the frst free elections after the Second World War.