bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Norm in the Bottle
Authors: King B. E. 
Published: January 2009

“Philosophy is a battle … to show the fly the way out of the fly bottle.” WittgensteinIntroduction to Jurisprudence, by the Quain Professor of Jurisprudence in the University of London, is an important work by a widely read author which should leave its mark, for better or worse, on all subsequent textbooks of Jurisprudence published in this country. In the breadth of the literature drawn on; in the attempt to evolve a textbook for students from a combination of readings and commentary; in its limitation of topics, it explores new ground. Its incursions into contemporary philosophy make it improbable that a textbook on Jurisprudence will ever again be attempted in this country by a lawyer who does not also claim to be a philosopher.Professor Jerome Hall, in his Readings in Jurisprudence (1938), omitted the traditional analyses of such particular subjects as property, ownership, tort and crime, as better left to the specialists in those subjects. Professor Edwin Patterson, in his Jurisprudence—Men and Ideas of the Law (1953), went one further and cut out the analysis of rights. This example is followed by Professor Lloyd, who is thus left only with sections on “Nature of Jurisprudence” and “Meaning of Law,” eight sections on the various theories of law and schools of writers, and a section on “Judicial Process.” Sore as is the need for the pruning of Jurisprudence as an examination subject it is suggested that this carries the process a little too far. It is based on no intelligible principle.
The Lawless Case
Authors: O'Higgins P. 
Published: January 2009

On November 4, 1950, at Rome, thirteen member nations of the Council of Europe signed a Convention for the Protection of Human Rights and Fundamental Freedoms. The purpose of the Convention was to give practical effect to some of the ideals embodied in the Universal Declaration of Human Rights proclaimed by the United Nations General Assembly on December 10, 1948. In contrast to the Universal Declaration, which is a statement of long-term ideals having no binding force in law, the European Convention guarantees to everyone within the jurisdiction of the signatory states certain rights and freedoms defined in Section I of the Convention. Chief among these are the right to life; the right not to be subjected to torture or inhuman punishment; the right not to be held in slavery or servitude; the right not to be deprived of personal liberty save in certain specified circumstances; freedom of religion, thought and conscience; freedom of assembly and association; the right to marry, and the right to respect for private and family life. By a Protocol signed on March 20, 1953, three further rights were added, namely the right to property; the right to educate one's children in conformity with one's conscience, and the right to free elections. As one of the architects of the Convention, Sean MacBride S.C., former Irish Minister for External Affairs and subsequently counsel for the applicant in the Lawless case, has said:“In effect, the Convention of Human Rights is a supranational constitution which binds the states accepting it to secure to all human beings within their jurisdiction the rights defined in the Convention.”
The Treatment of Breach of Contract
Authors: Devlin Lord 
Published: January 2009

I want to start from the basic position in which I was brought up (I expect you were all brought up in it too) that the terms of a contract consist of conditions and warranties, the distinction between them being that the condition is something that is essential to the contract, while the other terms that are collateral or ancillary are merely warranties. If a condition is broken the aggrieved party is discharged from his obligations and can rescind the contract. If it is a warranty that is broken, the breach sounds only in damages.The Hongkong case—a new approach to breachThe traditional thinking on this point has recently been rather mystified by references to something which is called the fundamental term and which has not yet, so far as I know, been judicially defined. Then there have been some suggestions that what matters is not the fundamental term but the fundamental breach. And finally there is the very important judgment of Diplock L.J. in the Hongkong case in which he opens up new vistas, suggesting that the traditional classification of terms into conditions and warranties has been outmoded and ought to be scrapped in favour of a new approach altogether based on the event.It must be accepted that whatever sort of approach is made to this topic, whether a new or a traditional one, there must be some way of defining the situation in which the aggrieved party is entitled to rescind. He cannot be allowed to do so for every breach of every term.
Claim of Right and Dispute of Title
Authors: Gooderson R. N. 
Published: January 2009

In the first part of this article, published in April, the avowed intent was to demarcate and emphasise the difference between the two kindred but separate defences of claim of right and dispute of title. The subsequent publication of the eighth report of the Criminal Law Revision Committee on Theft has shown that the defence of claim of right is to be left untouched by the sweeping proposals contained in the report, and that consequently the subject of this article will not become a mere academic exercise, but will remain a matter of practical importance even if the recommendations are adopted.The earlier part of this article was primarily devoted to an attempt to isolate the meaning of title, the type of dispute that will lead to the exclusion of the jurisdiction of justices. It was noted that this procedural defence of dispute of title springs from a rule of statutory interpretation that it is always open to the legislature to exclude or modify. Passing reference has already been made to two famous modifications of the defence, in statutes providing for summary trial of assault and battery and malicious damage respectively. These enactments will now be examined in detail. Their special relevance for the object of this article is that the two cases on assault and battery show in the first place that, leaving aside the difficult question whether dispute of title should be extended to disputes as to title to personalty, even within the acknowledged prohibited sphere of disputes as to title to real property, criminal courts can be singularly slow to appreciate that a title to real property of an incorporeal kind is at stake.
Western Postclassical Schools
Authors: Volterra Edoardo 
Published: January 2009

It is an established fact that when historical research in Roman Law turned to work on the Justinian compilation with the object of distinguishing in it Classical Law from Byzantine Law, scholars were immediately struck by the profound difference which survives between these two epochs.In fact, the comparison between private law, such as it still appears in the writings of the late jurists of the Severian period and rescripts of Gordian and Diocletian, and the system of private law applied in the Justinian compilation, shows a profound change, not only in the institutions, but also and above all in the spirit of the system. This system appears influenced by elements and conceptions absolutely unknown to the Classics.How has it happened? That is the question that scholars put to themselves when the study of the sources permitted, and it made felt the need of a broader survey which would embrace the evolution of Roman Law and which could formulate the manner of this evolution.At first they had the tendency to attribute all substantial and formal innovations to Justinian's compilers, and consequently, to attribute to the Byzantine Emperor the greatest work of legislation which history records.It was the time when Bluhme's theory on the formation of the Pandects and on the method followed by the compilers was accepted entirely, and was considered a demonstration of the dominant doctrine.It was the time when in the work full of life of Hofmann the scholars saw only the most brilliant part, it is true, but also the weakest and the most fanciful, without at the same time perceiving the profound truth conceived by intuition and affirmed with a happy historical sense by this man of genius.
Evidence Excluded by Considerations of State Interest
Authors: Simon J. E. S. 
Published: January 2009

A Wife petitioned for divorce on the ground of cruelty. The husband denied that he had been guilty of cruelty; and in his answer alleged that the petitioner had been guilty of adultery. The husband was a regular soldier of non-commissioned rank; and an issue in the case related to the circumstances in which the wife was received by the husband on her arrival at his station at Hongkong. There had been at Hongkong a representative of the Soldiers, Sailors and Air Force Families Association (SSAFA), a Mrs. Allsop. Differences had arisen between the husband and wife, and her good offices were invoked. She had made written reports of the case to her head office.Before the hearing of the suit the solicitors for the wife had caused to be issued two subpoenas. The first was a subpoena ad testificandum directed to Mrs. Allsop. The second was a subpoena duces tecum addressed to the Secretary of State for War, relating to letters, copies of letters, memoranda and records made by SSAFA concerning the petitioner and respondent. The reason for the second subpoena being directed to the Secretary of State for War was that, for some reason which was left obscure, all the relevant SSAFA documents had come into the possession of the War Office. Counsel was instructed for the Crown, and he produced a certificate by the Secretary of State for War. This stated that, having read the correspondence and notes covered by the subpoena duces tecum addressed to him, he was of opinion that it was not in the public interest that the documents should be produced.
Mistake in the Law of Theft
Authors: williams Glanville 
Published: January 2009

A person who receives property under an apparent contract of sale can be guilty of theft of what he receives if the contract is void, for mistake or otherwise. It seems, since the decision of the House of Lords in Lawrence, that a person who obtains a voidable title (title under a voidable contract) can be similarly guilty (assuming, as always, that the other essentials of theft are present). I argue else where that a person who obtains a valid title to property generally does not by doing so make a dishonest appropriation (even though he may be morally dishonest), and should not be guilty of theft. The object of this article is to consider the way in which these principles apply to transfers made under mistake.In Lawrence the defendant's title to the money was voidable for fraud, which induces a degree of mistake by the transferor; but other sources of mistake are possible. The transferor may make a spontaneous mistake, or a mistake resulting from the transferee's innocent misrepresentation, without fraud.Three legal results can follow from a mistake in transferring property, according to circumstances.(1) The mistake may avoid the transaction, preventing title from passing. The transferee can be guilty of theft of the property on ordinary principles, that is to say by applying the definition in section 1 (1) of the Theft Act 1968.(2) The mistake may make the transaction voidable, so that a voidable title passes. Precisely when the transferee commits theft is a complex question, which will be postponed for the time being.
Murder—Drunkenness—Insane and Non-Insane Automatism
Authors: Williams Glanville 
Published: January 2009

It may be thought that the most important aspect of the decision of the House of Lords in Bratty v. Att.-Gen. for Northern Ireland [1961] 3 W.L.R. 965 is the opportunity it gives for qualifying some of the dicta in Director of Public Prosecutions v. Smith [1961] A.C. 290. Lord Morris of Borth-y-Gest (with whom Lords Tucker and Hodson expressed concurrence) referred to the “golden” rule in Woolmington, and said:“In a charge of murder, malice may by implication be proved where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given an accused person may, however, either by adducing evidence or by examining the circumstances adduced by the Crown, show that his actions were either unintentional or provoked. In such a situation the continuing and constant obligation of the prosecution to satisfy the jury beyond any reasonable doubt is in no way abated.”
Merger—Statutory Modification of the Common Law
Authors: Turpin C. C. 
Published: January 2009

In R. v. Males [1961] 3 W.L.R. 1297, the Court of Criminal Appeal was concerned with the effect of section 12 of the Criminal Procedure Act, 1851, upon the common law doctrine of merger in its application to the misdemeanour of attempt. This doctrine of the common law is to the effect that if the acts of an accused person constitute both a lesser crime and a greater, the lesser crime (at all events if a misdemeanour) merges in the greater (at all events if a felony), and is extinguished by it. In consequence, if the accused was charged only with the lesser crime, he was at common law entitled to an acquittal. Thus, in the old case of Harmwood (1787) 1 East P.C. 411, the accused, who had been indicted for an assault with intent to rape, had to be acquitted when it was found that rape had actually been accomplished.Although revered by counsel in a case in 1851 as “ancient well established doctrine,” the principle of merger has had a fitful and at times precarious life. Its justification has never been clearly formulated, nor its province determined. Its application is in some respects arbitrary. It applies to the misdemeanour of attempt, which is held to merge in the completed crime, but not to the misdemeanour of conspiracy. It remains uncertain whether one misdemeanour may merge in another, although merger in this case was doubted in R. v. Males.The doctrine of merger is supported by the sound reason “that no man is to be harassed by frequent prosecutions for the same offence,” as counsel expressed it in R. v. Button (1848) 11 Q.B. 929, but has in the past earned some disrepute for the opportunities of escape offered to accused persons who, having committed both misdemeanour and felony, succeeded in evading conviction of either.
Act of State as a Defence Against a British Subject
Authors: Collier J. G. 
Published: January 2009

The law surrounding the doctrine of act of state is perhaps one of the most confusing parts of constitutional law, for both its meaning and application are susceptible of several different interpretations. In particular the rule that act of state can be no defence against an action by a British subject, or, to put it more precisely, that there can be no act of state between the Crown and a British subject is one whose limits are not entirely clear. The recent case of Naim Nissan v. Attorney-General has brought the matter to the fore in what is thought to be a novel situation, wherein the question arose whether act of state can be a defence to an action by a British subject if the act has been executed by the Crown outside the Crown's dominions. The case gave rise to a difference of opinion between the judge at first instance and the Court of Appeal, and now that leave to appeal has been granted to the House of Lords, there arises an opportunity to examine act of state in several of its aspects.In this discussion it will be argued that the law as it appears now to stand is not necessarily a correct interpretation of the precedents, and that if it is, occasion now presents itself for a fresh formulation of the rules upon a more logical and up-to-date basis.It is first proposed to explain what is meant by the term “act of state” in this context, to try to establish its relationship with the prerogative, and to examine two aspects of it, that is (i) where a claimant is attempting to use an act of state as the foundation of his action, and (ii) where the Crown is attempting to defeat an action by an individual by the plea of act of state.
Liability for Animals in Roman Law: An Historical Sketch
Authors: Jackson Bernard S. 
Published: January 2009

Theproblems of reconstructing the development of liability for animals in Roman law are considerable. Each of the remedies is attended by major difficulties for the historian. We have the following:(1) A Twelve Tables remedy forpauperies—an archaic term, the meaning of which is obscure;(2) A Twelve Tables remedy for depasturation, of which there is no surviving quotation, but only a small number of allusions;(3) Anedictumon dogs and certain wild animals, undated and surviving in two versions with hardly any juristic interpretation;(4) A “lex Pesolania” concerning dogs, the very existence of which has been questioned;(5) The classicalactio de pauperie, the basis, extent, and remedy for which have all been assailed by the interpolationists;(6) The classicalactio de pastu, evidently superseded by Justinian's day and thus leaving but few traces.The Common Lawyer, to whom these remedies may reasonably evoke the types of damage represented byscienterand cattle-trespass and the special rules for dogs andferae, will not be surprised to find, in addition, the application of generalculpaprinciples by the extension of the actiolegis Aquiliae.I. TheDecemviralRemediesSome strands of ancient tradition maintain that the Decemvirs adopted an eclectic method, incorporating within the Twelve Tables both ancestral custom and foreign law.
The Courts and Parliament: Who Whom?
Authors: Allott Philip 
Published: January 2009

All government is a conspiracy. Each governmental conspiracy has a constitution as its alibi. The constitution describes the way in which the political power of the society is concentrated and places the source of that concentration somewhere other than in the mere fact of power. Because of that dislocation, the constitution is the source not only of political power but also of political duty. The subjection of the organs of government to the constitution runs parallel to the subjection of the people governed to the constitutional power of the organs of government. The constitution justifies constitutional power and constitutional duty by making both of them derivatives from one and the same source.The prior question of whence the constitution itself derives its authority is, for all everyday practical purposes, answered by the mere fact of the constitution. The constitution is self-proving in practice because it is used as the source of maxims affecting the behaviour of those who exercise physical force with actual impunity, or who control its exercise. To preach or to act against the constitution may or may not be permitted by the legal rules of the given society (themselves derived ultimately from the constitution), but it will in any event be ineffective whenever it comes into collision with power exercised, to the point of physical force, under authority derived from the constitution. A revolution occurs when the exercise of constitutional power, to the piont of physical force, ceases or is overridden by the exercise of unconstitutional power, if necessary by the application of greater physical force.
The Colleges in the University of Cambridge
Authors: Glazebrook P. R. 
Published: January 2009

Are the Cambridge colleges “constituent colleges” of the University? This seemingly esoteric question has recently become of some practical importance. University Commissioners, appointed Pursuant to section 202(1) of the Education Reform Act 1988, have the duty of modifying the Statues or other instruments of government, of many, but not all, university institutions, so as to ensure that, whatever may have been the position hitherto, each of them has, for all future appointments, the power to dismiss members of its “academic staff” on grounds of redundancy, or for “good cause” (as defined in section 203(2)). Whether a university institution is subject to having its Statutes thus modified in ways which it might not have chosen for itself, in order to facilitate the “restructuring” of its academic activities, and the removal of “dead wood,” turns on whether it is a “qualifying institution,” as defined in section 202(3):(a) any university or other institution to which during the period of three years beginning 1 August 1987, grants in aid are or have been made by the Universities Funding Council, or by the Secretary of State acting on the advice of the University Grants Committee;(b) any constituent college, school or hall or other institution of a university falling within paragraph (a) above.
Judicial Proceedings and Refusals to Disclose the Identity of Sources of Information
Authors: Cripps Yvonne 
Published: January 2009

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.Lord Scarman, speaking during the House of Lords report stage of the Contempt of Court Bill, stated that the relevant provision would “ameliorate the law relating to contempt of court so that the public right to be informed is not impeded or obstructed.” Similarly, Lord Morris, speaking in support of the same clause of the Bill, noted that it “creates a privilege in aid of truth, a privilege in aid of the public interest, a vital and essential privilege, particularly when one bears in mind the ever-encroaching power, whether direct or indirect, of the Executive over the well-being or otherwise of the taxpayer and voter.”
A Plea for Punishment
Authors: Hadden T. B. 
Published: January 2009

It would be natural to describe the Queen's procedure as the rejection of the basic individual right of fair trial; indeed had Alice lived in the present decade, one might with reason have drawn the matter to the attention of the International Commission of Jurists. And yet there is a respectable body of current opinion which makes demands which are not really very different in their essentials from those of the Queen, demands made by penal reformers for treatment first and no trial at all. Psychiatric care may now be substituted for execution in some cases, but this reflects only a difference of opinion on the relative efficacy of the two methods of treatment. And the Queen could at least claim for her proposal the absolute certainty of preventing further crimes by the same offender.The point of making this comparison between the Queen and the reformers is to raise again the question of punishment and responsibility, to claim that the very notions of crime, trial and punishment are in themselves such an important factor in the treatment of antisocial behaviour that we cannot afford to let them wither away. Some social and penal reformers may be aghast at such a claim, fearing that any such wilful deviation from the prevailing trend would lead eventually to the reintroduction of a purely retributive system; and in their eyes retribution conjures up, somewhat irrationally, pictures of pointless, brutal and in human punishments. Such fears are unfounded. It is not the efficacy of the various particular types of punishment which is at issue, but the efficacy of the whole conceptual scheme which some reformers seek to abolish.