bluuebunny/crossref_metadata_2025 huggingface dataset:
Divinity, Incarnation and Intersubjectivity: On Ethical Formation and Spiritual Practice
Authors: Anderson Pamela Sue
Published: April 2006

In what sense, if any, does the dominant conception of the traditional theistic God as disembodied inform our embodied experiences? Feminist philosophers of religion have been either explicitly or implicitly preoccupied by a philosophical failure to address such questions concerning embodiment and its relationship to the divine. To redress this failure, certain feminist philosophers have sought to appropriate Luce Irigaray’s argument that embodied divinity depends upon women themselves becoming divine. This article assesses weaknesses in the Irigarayan position, notably the problematic move from a woman’s subjectivity to divinity. In the light of these weaknesses the author looks for a better alternative. Drawing on the work of feminist and non‐feminist philosophers, a feminist‐friendly conception of theism is sketched in terms of incarnation and intersubjectivity. Philosophical accounts of the ethical formation of gendered subjects by way of bodily practices offer new concepts for confronting and transforming the discursive tradition of philosophy of religion. With these concepts, the formation of women’s collective historical experience within a tradition mediated by philosophical texts takes on new significance for feminist philosophy of religion.
Legal validity and decided cases
Authors: Simmonds N. E.
Published: April 2006

This paper is divided into two sections. In the first section I examine the central role played by the concept of ‘legal validity’ in positivist theories of law. I suggest that this concept is capable of varying interpretations, of which some are wholly inapplicable to case law, while others are inappropriate, suggesting a misleading model of case law reasoning.

In the second section, I examine Hart's account of legal validity and the rule of recognition. I suggest that Hart's theory is inadequate because it fails to perceive the special nature of binding practices. I argue that the notion of a binding practice provides the most fruitful basis for an understanding of the common law, and explains the status of case law independently of Hart's account in terms of ‘legal validity’ and the rule of recognition.
An academic lawyer and law reform
Authors: Smith J. C.
Published: April 2006

At one of the first meetings of the Society of Public Teachers of Law that I attended a senior member declared that too much law reform was going on and that he proposed to form a law conservation group. That sentiment would now be widely shared by practitioners and perhaps even by some members of this Society, re-writing their lecture notes for the umpteenth time. Yet, by the nature of our job, most of us are continually looking at ways in which the law might be reformed. A university teacher cannot discuss any legal institution or rule of law without considering with his students whether it works fairly and efficiently and, this often leads naturally to a consideration of how it might be improved. At the very least we must send our students away with some ideas on law reform. Many of us are not content to stop there but seek to reach a wider, or more immediately influential, audience. In this paper I propose to discuss some personal views and experiences, more or less related to the subject.
Mandatory and directory rules
Authors: Evans Jim
Published: April 2006

In dealing with rules of a procedural type lawyers often make a distinction which is referred to as that between ‘mandatory’, and ‘directory’ rules. (The terms ‘imperative’, ‘absolute’, ‘obligatory’, ‘compulsory’, and ‘peremptory’, have sometimes been used instead of ‘mandatory’.) The distinction has to do with the effect of breach of a rule on the process to which it relates. Very broadly, mandatory rules are those procedural rules the breach of which necessarily invalidates the process to which they relate, while directory rules are procedural rules the breach of which does not necessarily have this effect. This distinction has existed in the common law for about three hundred years, yet, so far as I can discover, no serious attempt has ever been made to explore its logical basis. That is surprising, for on its face the distinction is a puzzling one.
Mrs. Gore's legacy to commerce
Authors: Davies P.J.
Published: April 2006

It is commonplace in the commercial world for contractual obligations to be performed by persons other than the original parties to the contract. Because of the doctrine of privity of contract persons who are not party to a contract generally cannot take advantage of terms contained in it. If, therefore, a person undertakhg the performance of obligations which someone else has originally assumed misperforms those tasks so as to incur legal liability towards the other original contracting party, it would seem that he cannot rely on a protecting clause in the contract even though that clause may purport to afford him cover. A variety of avenues of escape from this situation (which is often commerically inconvenient) have been at various times advocated: the doctrine of vicarious immunity and the trust idea have been explored and eventually rejected. Other methods of avoidance retain more vigour: we have probably not heard the last of arguments based on the doctrines of volenti non fit injuria and disclaimer, of the bailment on terms and of the idea of spelling out a separate contract (or offer) between the party now suing and the third party.
A common law action for discrimination
Authors: McKenna I. B.
Published: April 2006

May a worker bring a common law action against an employer who refuses him employment on racial grounds? The established view is that the answer is an emphatic ‘no’. The clearest enunciation of this view has been made by Hepple who explains the alleged absence of a common law remedy for discrimination in employment on both ‘doctrinal’ and ‘practical’ grounds. This article examines these doctrinal and practical underpinnings of the established view and suggests that they may not be as secure as is commonly believed. It is suggested that, while the weight of academic opinion denies the availability of a common law action based on a tort of discrimination, there may be theoretical and empirical grounds for the alternative view that, in appropriate circumstances, a plaintiff might successfully raise in an English court a common law action for racial discrimination in hiring. This is of particular importance in view of the weaknesses of the statutory remedies documented by Lustgarten.
Fundamental legal institutions
Authors: Stein P. G.
Published: April 2006

As law teachers, we are more reticent about our aims than our colleagues in other countries. It does no harm, therefore, to remind ourselves of what we are expected to do. We must start from the peculiar structure of legal education in England and Wales. The sharp division between the academic stage and the professional stage, each in the hands of institutions totally independent of each other, is almost unique to England and Wales. It does not exist in Scotland or in Northern Ireland, where there are no professional schools, and where the Universities share responsibility with the professions for most of the professional training. And it does not exist with such sharpness on the continent of Europe, or in North America. This distinction is the product of the Report of the House of Commons Committee of Legal Education in 1846. That Committee was set up when it was discovered that there was ‘no Legal Education, worthy of the name, of a public nature, in England or Ireland.
Lessons in trade union law reform: the origins and passage of the Trade Disputes Act 1906
Authors: Kidner Richard
Published: April 2006

For the past 75 years the Trade Disputes Act 1906 has been regarded as a statute of fundamental importance, both for its provisions and for the fact that it established that the future of labour relations in Britain was to be placed firmly on the basis of voluntary collective bargaining rather than arbitration. This Act is often regarded as an immutable foundation of principle based on well debated theory, but it would be a mistake to ascribe such grandiose origins to this particular statute, for it was the result of a combination of political pressure by the trade unions, the nascent Labour Party and the Liberal Radicals, the retreat of the government from its own Bill for political expediency, and the opposition's concern with other problems. Accordingly the Bill had a most remarkable journey through Parliament and the story is not only interesting in itself but also it illustrates many of the theoretical difficulties that face any reform of the law of trade disputes today.
Choice of law in tort: a justice-based approach
Authors: Jaffey A. J. E.
Published: April 2006

The English choice of law rules for tort cannot be stated with any certainty. The most likely version, as a result of Chplin v Boys, is a double actionability rule, with provision for a proper law or ‘interests’ approach in exceptional cases, but if that is the law there is little cause for satisfaction. The purpose of this article is to consider what shape any future reform ofthe law in this area should take, confining the discussion, however, for reasons of space, to torts wholly committed within a single country.
‘Intention and recklessness again’ – a response
Authors: McEwan Jenny , Robilliard John
Published: April 2006

The reply of Professor Williams to our article ‘Recklessness: the House of Lords and the criminal law’ is interesting and vigorous. We continue, however, to adhere to our original view, and attempt below to summarise our objections to what appear to be his main arguments on the law. On the moral issue, we do not consider that Professor Williams has answered the arguments for ‘Caldwell - recklessness’ put forward by Duff. We find the Professor's philosophical position somewhat confusing. Why is it acceptable to convict those who fail to appreciate an obvious risk because of ‘blind rage’ or self-iduced intoxication, but not those whose failure to appreciate it arises from total indifference to the well-being of others?

We should like to make the following points in reply to those charges against us which seem the gravest.
The Advocate General in the Court of Justice of the European Communities
Authors: Dashwood A. A.
Published: April 2006

As an academic discipline in the United Kingdom, European Community law is a relative newcomer. I belong to the last generation that learnt its Community law on the hoof, through teaching it to others or practising it. I was, though, very fortunate in serving two apprenticeships, one, in the theory of the subject, under the late Professor J. D. B. Mitchell as a Lecturer in the Centre of European Governmental Studies at the University of Edinburgh and the other, in its practical application, as Legal Secretary to Sir Jean-Pierre Warner (as he became after his appointment to the Chancery bench of the High Court) when he was Advocate General at the Court of Justice of the European Communites. John Mitchell was an enthusiastic admirer of the Court of Justice and deeply learned in its ways; and one topic among many that interested him was the role of the Advocate General, a role it fell to J. P. Warner to show that a lawyer from this side of the Channel could fill with distinction. It was with my debt to those two masters very much in mind that the subject of this lecture was chosen.
Offences and defences
Authors: Williams Glanville
Published: April 2006

What, if any, is the distinction between offences and exculpatory defences, between definitional elements and defence elements, between rules and exceptions? In recent years the courts have shown a tendency to attach legal importance to this distinction, even as a matter of substantive law. But ought it to have this importance, and anyway is it usable?

On their face, exculpatory defences often relate to the same kind of question as the inculpation provisions of the criminal law. The offence-creating provision states what must or must not, in general, be done; the exculpatory provision states the limits of the prohibition in particular circumstances. As Professor Paul Robinson expresses it, in a long and learned article on defences, defences ‘refine the wording of the offence’; they ‘provide a more sophisticated account, when needed, of the harm or evil sought to be prohibited’. But the refinements may be expressed in the provision itself, as well as in the defences.
The problem of the elderly statute
Authors: Hurst D. J.
Published: April 2006

In most branches of the law where statute dominates, such as taxation, social security and employment protection, the legislation is nowadays quite frequently revised. Often this is because a new government requires important changes of a political character, although the oportunity can be taken to remove ambiguous, anomalous or antiquated phrasing. But from time to time, perhaps as a result of a Law Commission report, a statute is revised for social, administrative or even juridical reasons. At all events, what may be called the operational art of our statute book dating from before 1945 is comparatively small.
Refusal of medical treatment
Authors: Hudson A. H.
Published: April 2006

It is a commonplace of the law of mitigation and remoteness in tort that if a plaintiff who has suffered tortiously inflicted personal injuries unreasonably refuses medical treatment he will be regarded as having failed to mitigate. Tersely stated this may seem almost self-evident though case law here and in Australia shows that it involves a number of difficult issues.

Workmen's Compensation supplied a prologue to the present law. Though the statutes nowhere required an injured workman to mitigate by undergoing treatment, the courts held that any incapacity which could be regarded as resulting from a workman's unreasonable refusal of treatment was not proximately caused by the accident on which the claim was based and hence did not qualify for compensation.
Jury verdicts and the presumption of innocence
Authors: Maher G.
Published: April 2006

In recent years various developments in the system of trial by jury in England and Wales have given rise to comment and concern. One such development was the abolition by s. 13 of the Criminal Justice Act 1967 of the rule, said to have existed for over 600 years, that a jury must be unanimous in order to reach a verdict. These provisions are now contained in s. 17 of the Juries Act 1974 which allows for majority verdicts where there are no more than two dissentient voices to be returned under certain circumstances. The change in the unanimity rule has been criticised as striking at the root of the principle of proof of guilt beyond reasonable doubt and has been interpreted by some as being the first step on the slippery slope to jury verdicts by simple majority, a development which would do even more to undermine the principle of proof beyond reasonable doubt and might also lead to the complete abolition of trial by jury.
Jury vetting — The jury under attack
Authors: Duff Peter , Findlay Mark
Published: April 2006

The English jury has recently been undergoing various alterations. These changes have their roots in assumptions, often not clearly identified, about the nature and purpose of the jury within the criminal justice system. Once the purpose and ideals of the jury system are identified, and there may be arguments about what they are, it becomes apparent that there may be a conflict about how they should be put into practice. The state and its agencies may take one view whilst others may differ. An example of one such conflict is the controversy over the newly discovered practice of ‘jury vetting’.
Ignorance of the law is no excuse?
Authors: Matthews Paul
Published: April 2006

‘Ignorance is not innocence, but sin.’

– Browning, The Inn Album

The maxim ‘ignorance of the law is no excuse” has much to answer for. Defendants arguing that they did not know or misunderstood the law have been told that their ignorance or mistake made no difference to their liability. The institutional writers have laid down as much. The courts have repeatedly emphasised it.

However, it is here submitted that this blanket approach, characterised by the very existence of such a general maxim, is misconceived. No such general principle exists, nor should it. Although the judges have spoken in general terms, their remarks really depend on the context of the particular offences in question, where no knowledge of the law has been necessary, and liability has been (in this respect at least) ‘strict’.
‘General ideas’ and the reform of civil procedure
Authors: Jolowicz J. A.
Published: April 2006

It was not within the terms of reference of the Royal Commission on Legal Services to bring under review either procedure or the administration of justice. Nevertheless, the Commission received so much evidence on these subjects that it saw fit to publish a summary of that evidence and to recommend that ‘a full appraisal of procedure and the operation in practice of our system of justice, in particular in all civil courts’ should be carried out. Since then, the Committee on Procedure and Practice in the Chancery Division has reported, its recommendations have been largely implemented, and numerous changes of practice in the High Court and the Court of Appeal have been introduced by rule of court and practice direction.
The development of socio-legal studies in the United Kingdom
Authors: Harris D. R.
Published: April 2006

There is no agreed definition of socio-legal studies: some use the term broadly to cover the study of law in its social context, but I prefer to use it to refer to the study of the law and legal institutions from the perspectives of the social sciences (viz all the social sciences – not only sociology). The last decade has seen many developments in this enterprise. Many younger academic lawyers became dissatisfied with the traditional type of legal scholarship, which concentrated on the internal consistency of the law and the inter-relationship of different legal rules. They showed great interest in studying the realities of the law in action, the social effects of law and the relationship of law to wider questions of social structure, and naturally turned to the social sciences for assistance.
The law and politics of United States foreign policy export controls
Authors: Bridge J. W.
Published: April 2006

One of the few areas of the law in which there is a significant and serious dispute between the United States and its Western Allies concerns the nature and scope of national regulation of international trade. This long-standing and mutually damaging dispute first arose in connection with the extraterritorial enforcement of US antitrust laws through the effects doctrine as elaborated by US courts commencing with the Alcoa case in 1945. Since then the dispute has progressively widened and deepened: it has extended to such matters as international shipping and civil aviation, commodity markets and securities and it has been aggravated by the extraterritorial application of US investigatory and other pretrial procedure.
A re-examination of privacy
Authors: Stoljar Samuel
Published: April 2006

In English law, as in many of its common law satellites, the tort of privacy is still a curiously problematic one. Unlike Roman or generally civilian law where there is little doubt that an invasion of privacy is actionable, unlike also American law which in the last 80 years or so has fashioned an ample shield around a person's private sphere, English law has been deeply hesitant about admitting privacy as a civil right. Roman law, we may be surprised to learn, accepted from the very start that rules against personal injury include as well as rights to physical security also rights to feelings of human dignity and self-respect.
Specific performance at the crossroads
Authors: Burrows A. S.
Published: April 2006

It is a fundamental principle that the expectation interest is protected for breach of contract. In protecting this interest, the main choice the law faces is between ordering specific performance and awarding damages. The former orders the defendant to carry out what he promised, whereas the latter gives the plaintiff a monetary substitute for performance. Traditionally, the expectation interest has been primarily protected by awarding damages, and specific performance has been a very secondary remedy.
The doctor and the Supply of Goods and Services Act 1982
Authors: Bell Andrew P.
Published: April 2006

Down the centuries, it has been considered that in general a doctor is only under a duty to exercise reasonable care in treating a patient. While the latter is entitled to a high standard of treatment, results are not guaranteed. In the United States, courts have imposed more onerous obligations, but in England there has been no real challenge to this position until now. The doctor's liability in contract has always had the potential of going beyond mere negligence, but the general concentration on tort actions and understandable uncertainties as to the scope of contractual liability meant that this potential was never explored.
Patent error of law and the borders of jurisdiction: the Commonwealth experience assessed
Authors: Peiris G. L.
Published: April 2006

One of the dramatic developments in contemporary administrative law is the result of a radical approach to the basis and scope of error of law on the face of the record as a ground of judicial review of administrative decisions. Despite the impeccable antecedents of this rubric of judicial review in English administrative law, courts as well as writers in England have strenuously assailed in recent times the legitimacy of the continued invocation of this head of review. Lord Diplock has suggested that the concept of patent legal error has become redundant in consequence of expansion of the scope of jurisdictional criteria.
A note on omissions
Authors: Gross Hyman
Published: April 2006

Criminal liability for failing to do something is as much a part of the law as criminal liability for anything else, and a very familiar feature of any developed legal system. Enforceable duties are created by law to discourage people from going about their business in unacceptable ways, to ensure proper participation in activities and programs that are important to the life of the community, and to make sure that people who occupy a position of responsibility or are in some special relationship which leads others to rely on them do what might reasonably be expected of them. Most crimes of omission on the books are there for some such reason, though there are other sorts of reasons for creating enforceable duties that are equally good.
Contributory negligence as a defence to battery
Authors: Hudson A. H.
Published: April 2006

At one time it would have been possible to say with firm confidence that contributory negligence was never a defence to battery except, perhaps when the conduct of the plaintiff was so clearly the cause of the harm that had befallen him that it could be treated as contributory intent.

In more recent years, however, a number of qualifications to any such terse summary have appeared and somewhat surprising conflicts of opinion between various common law jurisdictions have arisen, both on the principal question and a number of associated problems.
Rights, socialism and liberalism
Authors: Simmonds Nigel
Published: April 2006

In his recent book,The LeftandRights,Tom Campbell argues that the concept of an individual right has no special or exclusive connection with the political philosophy of liberalism, or with the legal order of a liberal society. The belief that there is some such connection has been shared by both the revolutionary left and the libertarian right. Campbell argues that both groups falsely attribute to the concept of a right features that are contingently associated with the particular rights enforced in bourgeois society. A socialist society, he argues, would have good reason to accord and respect certain individual rights even though these might differ in content, and perhaps in form, from the classic rights of liberal individualism.
Unjust enrichment — a reply to Mr Hedley
Authors: Birks Peter
Published: April 2006

Whereas it was before dispersed and hidden, Goff and Jones have brought Restitution together and made it prominent. Lacking the generations of textbooks which have organised other subjects, its case law will for many years attract debate as to how best it should be arranged and how it relates to other categories. Many writers think that the key is to be found in the ideas and language of unjust enrichment. But the lock does not immediately turn. Hedley's paper says that it will not. Indeed he thinks that any hope of an elegant theory, or, which may be the same thing, an integrated and economical classification, is vain, since Restitution is more various, empirical, and endemically muddled than the unjust enrichment camp dares to admit. His paper valuably compels a re-examination of fundamental questions.
Contract in tort's clothing
Authors: Jaffey A. J. E.
Published: April 2006

Normally one person is not obliged to confer a benefit on another unless he has promised to do so. Even if he did promise to confer the benefit, he will not normally be liable for failing to confer it if the promisee gave no consideration for the promise. Moreover even if the promisee did give consideration, a third party, who did not, but for whom the benefit was intended, cannot sue. In principle the same applies where a party provides another with some article or service. The recipient cannot complain that the article or service is not good enough, unless the other party promised, for consideration, to provide the thing or service, and what is provided falls below the quality promised. So actions based on the failure to confer a benefit, or sufficient benefit, normally lie in contract.
Trade unions and non-striking members
Authors: McKendrick Ewan
Published: April 2006

The ‘rights’, if any, which belong to trade union members who refuse to participate in industrial action have been the subject of debate and controversy recently. A number of factors account for this. The first is the legal action maintained by members of the National Union of Mineworkers who refused to participate in the recent industrial action in the coalfields. Secondly, recent debates over the wisdom of introducing a ‘positive’ right to strike in place of the existing system of ‘immunities’ have, as Lord Wedderburn has remarked, ‘opened up… the prospect of a prohibition on unions disciplining members who refuse to strike, on the basis of the fallacy that a positive ‘‘right to strike’’ implies the negative ‘‘right not to strike’’’.
The French law of surnames: a study in rights of property, personality and privacy
Authors: Munday Roderick
Published: April 2006

In an earlier paper, we had occasion to examine the French and English law of forenames. Possibly to his surprise, the English lawyer will have discovered that, certain minor reforms apart, legislation of the Revolutionary era still governs this aspect of French life, purportedly restricting the forenames a person may bear, and, after registration of birth, all but forbidding their subsequent modification or substitution. Such a position contrasts dramatically with the received wisdom of English law, where forenames can be freely acquired and abandoned by use and reputation, the French rigidity of outlook being utterly alien to an English lawyer’s relativist attitude in the matter.
Jurisprudence, philosophy and legal education—against foundationalism
Authors: Hunt Alan
Published: April 2006

There are grounds for being optimistic about the future of legal education. Not least of these is that there is emerging a broad alliance, embracing a range of intellectual positions, which is increasingly outspoken in its criticism of the dominant vocationalism which characterises so much legal education. Neil McCormick has recently added his forceful voice to the criticism of the narrow and intellectually barren fetish of ‘learning the rules’ which constitutes the great bulk of the practice of law teaching. The context of MacCormick's advocacy of the virtues of a broad philosophical orientation in legal education was the publication of Barnett and Yach's survey of jurisprudence teaching in the United Kingdom.
Overreaching after Boland
Authors: Thompson M. P.
Published: April 2006

In William & Glyn's Bank v Boland Mr Boland, the sole resgistered proprietor of a house, mortgaged it to a bank. On his inability to meet the repayments, the bank sought possession as a prelude to the exercise of its power of sale. The action of possession failed because Mrs Boland successfully claimed an overriding interest in the property. This claim was founded on her having substantially contributed to the purchase of the house, thereby obtaining an interest in it. This interest was enforceable against the bank because she was in actual occupation of the land at the time it acquired its interest with the result that, because of section 70(1)(g) of the Land Registration Act 1925, she had an overriding interest in the land.
Setting the limits of fundamental rights and freedoms in the Commonwealth Caribbean
Authors: Merieux Margaret De
Published: April 2006

The countries collectively described in this article as the Commonwealth Caribbean, comprise those former British possessions, the islands of the Caribbean archipelago and the mainland states of Belize and Guyana, which now enjoy the status of independent states.

In a major deviation from the Constitution and law obtaining in the United Kingdom and its colonial territories, these states have written constitutions which set up a regime of fundamental rights and freedoms as part of the law of the constitution.
Statutory Interpretation
Authors: Wilson Alida
Published: April 2006

The interpreter of a statute ought not, tempted by extraneous considerations, to force the meaning of words or phrases against a reasonable understanding or against the clear intention of the statute as a whole. He ought not, influenced by the tendency of legal practitioners to favour precise and narrow signification, to assume that precise and narrow signification is necessarily the most proper for words or phrases which are found difficult.
The wilder permutations of section 1 (f) of the Criminal Evidence Act 1898
Authors: Munday Roderick
Published: April 2006

As Sir Richard Eggleston has justly observed, ‘The whole subject of character evidence in criminal cases is complex and difficult and much has been written about it. Although this rings true for section l(f) of the Criminal Evidence Act 1898, the remoter areas of that provision still remain comparatively unexplored. This paper will concentrate upon the abnormal operation of sub-provisos (ii) and (iii).

Section 1 (f) provides that, if he elects to give evidence, an accused shall neither beasked nor required to answer ‘any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character.’ The effect of this general prohibition is, in Cardozo CJ’s words, that ‘in a very real sense a defendant starts his life afresh when he stands before a jury.
Failure of medical advice: trespass or negligence?
Authors: Feng Tan Keng
Published: April 2006

Failure of medical advice by a medical practitioner can vitiate a patient’s consent to treatment giving rise to battery and it can also constitute a breach of the medical practitioner’s duty to inform bringing in negligence. This failure to inform pertains to the two torts of battery and negligence. What then is the distinction between medical trespass and medical negligence? The English cases from Chatterton v Gerson in 1981 to the recent leading case of Sidaway v Bethlem Royal Hospital Governors and Others have drawn a distinction. The distinction between the two torts is useful for the purposes of classification and application of tortious liability and is also necessary for the purpose of establishing the different functions of the two torts. Unfortunately, the distinction drawn is inappropriate. The article will first examine the distinction drawn by the cases between the two torts in this area of failure of medical advice; then it will discuss the difficulties in the distinction employed; and, finally, it will suggest a more appropriate relationship between medical trespass and negligence.
Patient autonomy and consent to treatment: the role of the law?
Authors: Brazier Margaret
Published: April 2006

Until recently claims for damages by patients against their doctors were rare in England. Patients who did pursue such claims often found scant sympathy from Her Majesty's judges. The clinical judgment of the medical practitioner was accorded something very like immunity from suit. Since 1980 the pace of medical litigation has quickened dramatically. Patients seem less and less willing to accept without complaint the results of unsuccessful or injurious treatment. They are more and more inclined to question their doctor's judgment. Medical litigation and scrutiny of medical decision making is highly newsworthy in 1987. The practice of medical litigation looks set to become profitable for lawyers. To the cynical oberver all this might look like good news for lawyers and bad news for doctors.
The use of force by the security forces in Northern Ireland: a legal perspective
Authors: Doran Sean
Published: April 2006

The use of emergency legislation and the accompanying modification of the ordinary criminal justice process in Northern Ireland have formed the subject of prolonged debate in academic and political circles. The authorities have, in turn, responded persistently by reference to the special justificatory circumstances which have grown to prevail since the onset of the present ‘troubles’. The focus of attention of this article, however, will not be that controversial legislation but another aspect of the emergency which is said to remain subject to the ordinary law of the land. This is the use of force by the security forces and in particular those instances where death or serious injury results therefrom. The primary contention of this paper is that the ordinary criminal law has been proven inadequate in this context. Hence, it is submitted, the quest for an alternative and more stringent mechanism of legal control is one which should be undertaken with some urgency.
Comparative law and the reform of civil procedure
Authors: Jolowicz J. A.
Published: April 2006

I keep six honest serving men(They taught me all I knew);Their names are What and Why and WhenAnd How and Where and Who.I send them over land and sea,I send them East and West;But after they have worked for meI give them all a rest.I let them rest from nine till five,For I am busy then,As well as breakfast, lunch and tea,For they are hungry men;But different folk have different views;I know a person small -She keeps ten million serving men,Who get no rest at all!She sends ’em abroad on her own affairs,From the second she opens her eyes -One million HOWSt,w o million Wheres,And seven million Whys!
Murder under duress and judicial decision-making in the House of Lords
Authors: Walters Lynden
Published: April 2006

While finding fault with House of Lords’ decisions in the field ofcriminal law is by no means a new academic sport, the present decade is proving particularly fruitful for the critic. The precise ramifications of Caldwelll and Lawrence are still being thrashed out. seymour, on manslaughter, was unforgiveably ambiguous. Moloney and Hancock and Shankland left the mental element in murder hopelessly opaque. In impossible attempts Anderton v Ryan revealed a degree of ineptitude which even the House of Lords had to recognise in overruling itselfonly a year later in Shivpuri.

It is not simply a questionofacademics taking issue with the outcomeof a particular decision. The further, and in some respects even more worrying, aspect of many of these decisions is the quality of the legal reasoning they embody.
The unresolved problem of recklessness
Authors: Williams Glanville
Published: April 2006

We seem to be stuck fast over recklessness. The model direction in Caldwell is almost universally deplored, particularly in respect of its operation in cases like Elliott v C and R (Stephen Malcolm) but the lords show no sign of repenting, even though in both of the cases last cited expressions of disapproval ascended to them from a Divisional Court. Lord Roskill, an out-and-outer on the point, asserted that the model direction applies ‘throughout the criminal law unless Parliament has otherwise ordained in a particular case’, which if accepted would reverse the present decisions that the direction does not apply to offences of malice, as most offences against the person still are.

We urgently need action, which could be achieved by legislation or, much more quickly, by the lords themselves if they were so inclined.
Contract, Tort and Restitution; or, on cutting the legal system down to size
Authors: Hedley Steve
Published: April 2006

‘Thus the law has been confined and drawn up into a narrow and inglorious study, and that which should be the leading science in every well-ordered commonwealth remained in all the barbarism of the rudest times… insomuch that the study of our jurisprudence presented to liberal and well-educated minds, even in the best authors, hardly anything but barbarous terms, ill explained, a coarse, but not a plain expression, an indigested method, and a species of reasoning the very refuse of the schools, which deduced the spirit of the laws, not from original justice or legal conformity, but from causes foreign to it and altogether whimsical.’ (Edmund Burke, ‘An essay towards an Abridgement of the English History’, Writings and Speeches of Edmund Burke (Beaconsfield Edition 1901, vol 7) p 477).
Equity and volunteers
Authors: Macnair M. R. T.
Published: April 2006

It is a commonplace that ‘Equity will not assist a volunteer’, or ‘Equity will not perfect an imperfect gift’. One problem posed by this rule is the question: what is the attitude of equity to instruments which, though not effective at law to transfer property, may at law give the volunteer beneficiary, or a person named as a trustee for volunteers, a right of action in damages? This is the very well-trodden ground of covenants to settle property and Re Pryce, Re Kay’s Settlement, and Re Cook’s Settlement Trusts, and the apparent conflict between these cases and Fletcher v Fletcher and Re Cavendish-Browne’s Settlement Trusts.
Judicial review and immigration policy: emerging trends
Authors: Peiris G. L.
Published: April 2006

Some recent attitudes to the scope of judicial review in the field of immigration policy represent a sharp contrast with the trends which typify the current renaissance in administrative law. The conspicuous features of modern developments are the range and intensity ofjudicial initiatives in expanding, almost beyond recognition, the parameters within which the exercise of supervisory jurisdiction is warranted in principle. Despite some suggestions to the contrary, it is not altogether satisfactory to regard the revamped notion oferror oflaw as an organising principle which supplants review mechanisms founded on the bedrock of vires; but it is quite evident that the theory of jurisdiction which lies at the root of seminal concepts sustaining the framework of judicial review is in the process of being transformed by contemporary ap roaches. The virtual equation of error of law with jurisdictional excess at any rate in regard to administrative tribunals as distinguished from inferior courts, has dramatically enlarged the scope of judicial review on the ground of jurisdictional fault, especially in the light of radical perceptions of the criteria which are called in aid to identify errors of law.
Sir Henry Maine: 1822-1888
Authors: Cocks Raymond
Published: April 2006

The centenary of Maine’s death prompts the questions: why is he remembered and what is his significance for us today? In part the answer is simple. He wrote well, and his books such as Ancient Law are a pleasure to read. It is frankly a relief to turn to his works after reading the remarkable but laboured chapters of that other nineteenth century jurist, John Austin (1 790-1859).

But going beyond his style and assessing his intellectual merits and the modern uses of his ideas is a more complicated matter. If his jurisprudential ideas are compared with those of, say, Bentham and Austin it is clear that there is an initial contrast in the way their respective theories are categorised. When the latter two thinkers are considered it is useful to refer to Benthamite and Austinian forms of jurisprudence.
Law, democracy and the individual
Authors: Duncanson Ian
Published: April 2006

This article examines a number of propositions about law and government with which lawyers and legal theorists are familiar. It argues that what are often said to be the ends of constitutional government are vague, and that what are said to be the best means of achieving them are underspecified or impossible. When civil liberty is allowed to rest in this state it is unsafe. To the extent that civil liberty is theorised it certainly casts a shadow upon the practical world of politics, and generates expectations. Often, however, when we suppose something like it to have been realised, a closer investigation reveals something quite different, namely benign government.
Ineffective transactions and unjust enrichment: a framework for analysis
Authors: Arrowsmith Sue
Published: April 2006

A contract which is believed to be legally binding sometimes turns out to be unenforceable by one or both parties because of some defect at the time it was made. An agreement may be affected, for example, by mistake; by uncertainty; or by the incapacity of one of the parties. Often preparation or performance has already begun, and the question then arises as to how the relationship – which was thought to be governed by the agreement – is to be adjusted. Where one party has received what he was promised under the agreement there exists the possibility of a claim against him in restitution. A difficulty in many cases of this kind is that the same factors which render the contract unenforceable also provide an argument against allowing a restitutionary claim. However, this is not always the case; and even where it is, there may be some justification for permitting recovery in restitution whilst refusing an action in con tract.
The draft code and reliance upon official statements
Authors: Williams Glanville
Published: April 2006

Any project to draft a criminal code has to compromise between the desirable and the politically possible. It may be that the draft now produced by the Law Commission, or something like it, is the best that can safely be backed, though the contrast between it and the American Law Institute's Model Penal Code (which also had to take account of political realities, and yet has been adopted in many States) is a painful reflection on our stodginess. It is hard to avoid the impression that the Law Commission have been too cautious in their approach, leaning too much in favour of bare restatement of the existing law and against modifications that experience or reflection show to be necessary.
Common mistake in English law: the proposed merger of common law and equity
Authors: Phang Andrew B.L.
Published: April 2006

Although the law relating to common mistake has engendered a plethora of conundrums, many problem areas have in fact been well-traversed in the literature. The present article does not seek to re-cover such welltrodden ground, but attempts, instead, to suggest a different and more systematic approach that would effect a merger of the common law and equitable branches of common mistake into one coherent, doctrine.
Ineffective transactions, unjust enrichment and problems of policy
Authors: Arrowsmith Sue
Published: April 2006

In a previous article in Legal Studies I suggested a general framework of rules for analysing problems of restitution which arise from ineffective transactions. It was explained that normally a claim should be available to a party who has performed his part, usually based on mistake or failure or consideration, or on ‘policy’ grounds. A benefit to the recipient of goods and services will usually be shown by the fact that in making the agreement he requested the performance Problems may arise, however, when the factor which renders the contract unenforceable also provides an argument against allowing a claim in restitution. One problem which arises frequently with goods and services is that the factor which vitiates the contract makes it difficult to show a benefit. For example, when the defendant mistakes the nature of the goods which he is purchasing, it may be impossible to say that he requested them for the purpose of showing they are of benefit to him.
The legal profession in the 1990s – images of change
Authors: Glasser Cyril
Published: April 2006

As someone who has spent a lot of time examining the underlying economic and social factors which affect lawyers and the services which they provide, I have to admit that I have no special insights which inform me how the legal profession will alter over the next few years. So much has happened in the recent past, such is the state of flux in the wake of the government's green and white papers that it would be a very foolish person who would confidently predict developments. Even the enactment of the Courts and Legal Services Bill will only provide a limited framework for the changes which are now taking place and further legislation may be necessary within a short period.
Privity and the concept of a network contract
Authors: Adams John N. , Brownsword Roger
Published: April 2006

‘English law, having committed itself to a rather technical and schematic doctrine of contract, in application takes a practical approach, often at the cost of forcing the facts to fit uneasily into the marked slots of offer, acceptance and consideration. Although the context of these remarks was the necessity to analyse the complex of relations between the parties involved in a carriage of goods by sea- cargo owners, carriers, stevedores, and so on- into classical offer and acceptance, with identifiable consideration, this was not, as such, the root of Lord Wilberforce's difficulty. Rather, the source of the problem was the notoriously inconvenient doctrine of privity of contract which, in The Eurymedon, prevented the negligent stevedores from being able to rely straightforwardly upon the time limit provisions in the contract of carriage.
Judicial reasoning and precedent: negligently inflicted psychological injuries
Authors: Warner K. A.
Published: April 2006

English common law is often understood to provide for the resolution of social disputes predominantly by resort to legal rules. Whilst there may be initially reasons for a rule which do not constitute legal reasons, once the rule becomes promulgated in a statute or is embodied in a judgment of a higher court then the application of the rule in future cases is justified by that very promulgation or embodiment. No further appeal to the social reasons originally behind the rule, what might be referred to as the ‘primary reason’ for a rule, is necessary. According to the theory any subsequent dispute to which the rule is addressed will be resolved one way or the other because there exists a distinctly legal reason for reaching that decision which is independent of the content of law and independent of, for example, social or moral considerations.