bluuebunny/crossref_metadata_2025_split huggingface dataset:
Law, morality and positivism
Authors: MacCormick D. N. 
Published: April 2006

‘The existence of law is one thing; its merit or demerit another. Of all the sayings of John Austin, none seems to make a simpler appeal to the plain fact of the matter than that one. We can argue for days about the merits or demerits of the Income Tax Acts or the latest effusion of trade union legislation. That such enactments are however laws is not a subject for lengthy nor inconclusive debates.As to income tax, some may agree with Robert Nozick. They may think that state-imposed taxes on income are equivalent to slavery. The individual who is forced to pay two fifths of his earned income in tax is working as a slave two days in every week, for the fruits of his labours on those days are compulsorily exacted from him and paid over to other people in cash or in kind.
Recklessness: the House of Lords and the criminal law
Authors: McEwan Jenny , Robilliard St. John 
Published: April 2006

‘The House of Lords has a dismal record in criminal cases. All too often their lordships’ decisions have to be reversed by legislation…the present decision could well be another'.In two recent criminal appeals of major importance on the meaning of mens rea, Caldwell and Lawrence, the House of Lords has departed so far from the academically accepted deffition of ‘recklessness’, that Professor Smith is driven to ask, ‘Can we really afford the House of Lords as an appellate criminal court?’. Such desperation surely indicates that their Lordships have got things badly wrong and it is our purpose in this article to examine whether this is indeed the case.
The rise of legal formalism; or the defences of legal faith
Authors: Goodrich Peter 
Published: April 2006

‘Just as in religion, so long as there is a religion, there must be a dogmatic theology, which cannot be replaced by any religious psychology or sociology, so, as long as there is a law, there must be a normative theory of law.’ H. KelsenIn terms of the history of the social sciences, the latter quarter of the nineteenth century was characterised in no uncertain manner by neo-Kantianism. The revival in question was aimed at rehabilitating the Kantian concept of science as a system, unified essentially by the idea of a system rather than by any more realistic or historical classification of its subject matter. The most notable and far-reaching effects of this revival were to be the constitution of the sciences of linguistics and of law. In both cases the major portion of the nineteenth century had been dominated by attacks upon the received orthodoxies of universal grammar and of exegetical legal studies, respectively, and their displacement by the uncertainties of creationist and historical methodologies.
Twentieth century developments in commercial law
Authors: Goode R. M. 
Published: April 2006

In the 75 years since the Society of Public Teachers of Law came into being there has been a revolution in the conduct of business operations. Methods of transport have been transformed; commercial transactions have increased vastly in size, in number and in complexity; a whole range of new contract structures and financing techniques has evolved; and the receipt, storage and transmission of information and instructions have been completely changed by new technology.If it be right that commercial law is rooted in the customs and practices of merchants we could reasonably expect to find a parallel transformation in English commercial law, a reappraisal of fundamental concepts, a wholesale jettisoning of nineteenth century statutes and case law. It is a matter for some astonishment that this has not occurred.
Law in action or living law? Back to the beginning in sociology of law
Authors: Nelken David 
Published: April 2006

Sociology of law often seems to be marked by a form of intellectual apartheid. Whilst social theorists refine their conceptual frameworks, those with more practical concerns robustly set out to investigate the ‘law in action’. Mixing of the two approaches is thought likely to impede their necessary separate development. One recent survey of the field concluded that:‘The trend is likely to be a continuing divergence between its theoretical and practical branches: the theoretical consisting mainly of re-analyses of old sociological approaches to law, and the practical continuing with its problem-solving approach without confronting the theoretical problems implicit in what it accepts as problems and solutions’.
Involuntary manslaughter in Commonwealth Law
Authors: Peiris G L 
Published: April 2006

It has been aptly observed that ‘Of all crimes manslaughter appears to afford most difficulties of definition’. More recently, the Court of Criminal Appeal in England has made the comment: ‘There has never been a complete and satisfactory definition of manslaughter.’The complexity of definition is associated with a peculiar feature of manslaughter, in that the essential mental requisite consists of the accused's state of mind in relation to his physical act rather than to a particular consequence of the actus reus. The crime of manslaughter postulates mew Tea only in the special sense of intention to commit the act which brings about the consequence of death, even though this consequence may not have been desired or even foreseen by the accused. Thus, the intention to cause death or serious injury is not necessarily a requirement of liability for manslaughter.
Taking law less seriously – an anarchist legal theory
Authors: Bradney A. 
Published: April 2006

There is, it seems, a revival of interest in anarchist theories of law. But then there is always a revival of interest in anarchist theories of law. In the 1960s Wortley began his text, Jurisprudence, with a study of anarchism, and the early 1980s saw a succession of papers and articles on anarchist critiques of law. Despite this, discussion of anarchist legal theory has rarely moved beyond the introductory stage. Basic tenets have been outlined but detailed analysis eschewed. Part of the reason for this may lie in basic difficulties of definition. The concern has been with ‘anarchist theories of law’, but what is anarchism?Most writers, whether they be anarchist theorists or academic commentators, begin with the proposition that the word anarchism is derived from the Greek anarchos and means either ‘no government’ or ‘no ruler’. Such etymology cannot take the place of definition but, beyond the bare fact that anarchism involves the rejection of rulers, no further definition seems possible.
The Democratic Intellect and the law
Authors: MacCormick Neil 
Published: April 2006

The occasion of the publication of a survey of jurisprudence teaching in the law schools of the United Kingdom is a good occasion for reflecting upon the point of jurisprudence teaching in a law school. There are indeed other good occasions for such reflection, and in fact this paper was initially prepared for such an other occasion. By the invitation of the Editor, it now appears in this Journal in revised form as an outrider to Barnett and Yach's survey ofjurisprudence teaching in the United Kingdom.One cannot but compliment the authors on the thoroughness of their survey work and on the richness of detail of their report. This comment will not seek to rival that richness.
Innocuously dipping into trust funds
Authors: Williams Glanville 
Published: April 2006

The well-known disadvantages of having an undefined requirement of dishonesty in theft have caused some writers to propose that the requirement should be more precisely stated. Section 2(1) of the Theft Act 1968 specifies cases where the defendant is declared not to have been dishonest (belief in right, belief that onc would have the owner's consent, belief that the owner cannot be discovered), and an obvious way of clarifying the law would be to abolish thc general issue of dishonesty but to allow a defence in these specific cases (together with such other specific cases as might be determined).The only difficulty in the way of this solution, as I see it, is to decide what is to be done about people who abstract money from a fund intending to repay, or intending and also being presently able to repay. In the past, opinions have been sharply divided between what may be called the orthodox and the lenient approach.
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.
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.
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.
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.
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.
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.
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.
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.’
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.
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.
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.
Negligently inflicted psychiatric damage: a medical diagnosis and prognosis
Authors: Sprince Alan 
Published: April 2006

In 1970, when commenting on the law's progress in dealing with negligently inflicted psychiatric damage that does not result from physical injury (hereinafter ‘psychiatric damage’), Windeyer J delivered a famous ‘backhanded’ compliment, by observing ‘[l]aw, marching with medicine but in the rear and limping a little’. At the risk of straining that metaphor by re-casting it into a medical perspective, the purpose of this article is to provide a diagnosis and prognosis as to the current state of that legal limp. It would conclude: ‘legal patient now seems docile and uncharacteristically compliant, makes right noises but limp no better. Query whether symptomatic of more serious problem requiring radical surgery?’This rather negative assessment is acknowledged to be somewhat at odds with a more optimistic prognosis that could be derived from recent trends that seem generally to signify a growing ditente between law and medicine.
Negative easements — a crumb of analysis
Authors: Dawson Ian , Dunn Alison 
Published: April 2006

History, as much as logic, has shaped the English real property law of today. The richness of that history is one of its strengths, but is also a potential source of weakness, as where the boundaries between similar, but distinct rights are neither theoretically nor logically distinguished. Whilst this may often not be of practical concern, none the less a lack of logic may lead to inconsistency or uncertainty in the law (or indeed both). Particularly is this so where social pressures require protection for new situations, as for example where a flat owner requires the certainty that his right to park his car is a proprietary right.That provides one justification for seeking a strong and consistent theoretical framework. Another is that as we integrate more closely with our European partners, we may be compelled to accept into our thinking concepts which are at present alien to us.