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This article articulates a theory of relational contract, as an alternative to traditional freedom of contract philosophy. The law has moved away from freedom of contract to some extent, and it can be criticised on the basis of its unrealistic assumptions and detachment from the typical reality of parties' contracting. Relational contract theory is a possible suitable alternative theoretical framework. It may be useful in relation to contract interpretation. Specifically, it can be utilised to support a broader approach to contract interpretation, with the court focussing on the entirety of the parties' relations, including the written terms and also subsequent performance. It enjoys some support in the United Kingdom and in other common law jurisdictions. It can support the view taken by two justices of the High Court of Australia in a recent contract interpretation decision involving employment contracts. The article favours the approach taken by these justices, rather than that of the majority, whose judgment reflects classic contract law sentiments at odds with the general direction of contract law in comparative jurisdictions. [ABSTRACT FROM AUTHOR]

The United Kingdom has accepted international obligations under the Palermo Protocol, the Council of Europe Trafficking Convention, and the EU Trafficking Directive, in relation to the non-prosecution and non-punishment of victims of trafficking for offences they commit which are linked to their trafficking. The obligations are given effect by the Crown Prosecution Service (CPS) discretion not to prosecute, the abuse of process jurisdiction, the common law defence of duress, and the statutory defences under s 45 Modern Slavery Act 2015. In relation to adult victims of trafficking, in each case the question arises of whether they were compelled to commit the offence with which they are charged. This article shows how the English & Welsh courts and the CPS have had insufficient regard to the United Kingdom's international obligations in interpreting 'compulsion', and that improvements are necessary to prevent breaches of the United Kingdom's obligations and the re-traumatisation of victims of trafficking. [ABSTRACT FROM AUTHOR]

The article discusses the concept of constructive layoff in the UK's Industrial Relations Act 1971 and how it allows employees to seek recourse if they resign due to an unbearable situation caused by their employer. It evaluates the effectiveness of this concept and how the common law's contractual approach has led to complications in assessing the severity of the employer's behavior.

Conditions and warranties, which are generally referred to as policy terms in insurance contracts, are crucial in the determination of the rights and obligations of the contracting parties. The article examines the enforcement of policy terms in insurance contracts at common law and the legislative measures that have been deployed in some common law countries, including Nigeria, the United Kingdom and Australia, to ensure fairness as well as to balance the inequality in the bargaining power of the contracting parties. In as much as the principle of freedom of contract will generally be honoured by the court, the paper argues that through legislative intervention in policy terms in these countries, the principle is being discountenanced with, in appropriate cases, in order to effectuate the just and reasonable expectation of the insured. It concludes by proffering suggestions to identified lacunae in the Nigerian Insurance law. [ABSTRACT FROM AUTHOR]

The common law doctrine of mistake of fact or civil law works as denial of offending, but dishonesty works as one of the definitional elements of crimes such as theft and fraud. It is argued in this article that the rulings in R v Barton [2020] 3 WLR 1333 and Ivey v Genting Casinos (UK) (trading as Crockfords Club) [2018] AC 391 do not change the doctrine of mistake of fact or civil law but do change the law in respect of mistakes about what is honest. A defendant whose conduct is taken as dishonest according to community standards may well avoid criminal liability if he was genuinely mistaken about a fact or civil law right. It is submitted that since the doctrine of mistake of fact or civil law is already provided for, the law is not expanded greatly by the rulings in Ivey and Barton which merely bring back the objective test of dishonesty that had long been established before the Ghosh test. The decision in Barton is substantively welcome, even though the change in the law arose from a civil law case where dishonesty was not an issue before the court. [ABSTRACT FROM AUTHOR]

Historical accounts of commissions of inquiry in Canada make only passing reference to the seminal 1846 Inquires Act. None explore the provenance of this legislation beyond a few sentences of the most general conjecture. This paper contends that Canada's first Inquiries Act was a by-product of a political crisis that grew out of the politics and institutional processes integral to the resolution of claims for rebellion losses in Canada during the 1840s. As the events associated with the passage of the 1849 Rebellion Losses Bill would disclose, this crisis posed an existential threat to the viability of the Union. The passage of the Inquiries Act, precipitated by the immediate contingencies of the rebellion losses crisis, marked for Canada a fundamental shift in constitutional authority dating back to 1688. The Act embraced methods of inquiry denied to the Crown since the late seventeenth century. Though created by a democratic legislature, the Inquiries Act revived a Crown-driven inquisitional approach to public inquires long since inoperative in Great Britain. The Act thus marked a shift in the relationship between state and citizen, and opened a new terrain for the long struggle to protect the individual against the all-powerful state. [ABSTRACT FROM AUTHOR]

Historical accounts of commissions of inquiry in Canada make only passing reference to the seminal 1846 Inquires Act. None explore the provenance of this legislation beyond a few sentences of the most general conjecture. This paper contends that Canada's first Inquiries Act was a by-product of a political crisis that grew out of the politics and institutional processes integral to the resolution of claims for rebellion losses in Canada during the 1840s. As the events associated with the passage of the 1849 Rebellion Losses Bill would disclose, this crisis posed an existential threat to the viability of the Union. The passage of the Inquiries Act, precipitated by the immediate contingencies of the rebellion losses crisis, marked for Canada a fundamental shift in constitutional authority dating back to 1688. The Act embraced methods of inquiry denied to the Crown since the late seventeenth century. Though created by a democratic legislature, the Inquiries Act revived a Crown-driven inquisitional approach to public inquires long since inoperative in Great Britain. The Act thus marked a shift in the relationship between state and citizen, and opened a new terrain for the long struggle to protect the individual against the all-powerful state. [ABSTRACT FROM AUTHOR]

When widows claimed dower they were normally claiming part of the lands which their husband had possessed during their marriage. But the medieval common law also allowed widows to claim lands which the husband had never held if they had been in the possession of a close relative of the husband at the time of the marriage provided the relative had been present at the marriage and given consent to the endowment made by his or her heir apparent. This paper analyses the sixty or so actions of dower ex assensu found on the plea rolls for the period down to 1307 and in associated law reports. That assent was recorded in a written charter in relatively few cases. In most the court relied in part or in whole on the evidence of witnesses present at the ceremony. Sometimes their evidence alone was decisive. More commonly witnesses were added to a jury which gave a collective verdict on whether consent had been given. These cases provide a valuable reminder that witness evidence was already in the thirteenth century a regular and accepted feature of at least one form of common law action. [ABSTRACT FROM AUTHOR]

In medieval England, religious crimes were prosecuted in the ecclesiastical courts by way of inquisitorial procedure, whereas secular crimes were dealt with in the royal courts with common-law methods. This separation between the two jurisdictions was fairly well maintained until the king was recognized in 1534 as the Supreme Head of the English Church. From this time forward, there were various attempts by statutory and other means to "improve" canonical procedures by adding or combining common-law practices. Some of these changes can be observed in practice in London under Bishop Edmund Bonner during the last years of Henry's reign (1540-47), notably in the trials of Anne Askew in 1545 and 1546. Further alterations during the reign of Edward VI (1547-53) are detailed, when Bonner himself was deposed from his episcopal see by royal commissioners (1549). The article concludes with a brief look at Elizabeth's reign, before and after Bonner's demise. [ABSTRACT FROM AUTHOR]

It is commonly believed that the rule prohibiting reliance on legislative history as an aid to statutory interpretation was firmly in place in the United Kingdom, and indeed throughout the English-speaking common law jurisdictions of the world, long before the turn of the 20th century; and that the rule was set aside in the case of Pepper v Hart in 1992. However, an examination of the relevant cases and the canonical textbooks by Maxwell and Craies reveal that the rule was subject to a significant amount of disagreement at the turn of the 20th century, particularly with respect to the admissibility of commissioners' reports to uncover the mischief of a statutory provision. This disagreement would not be completely resolved until the 1960s. With respect to other types of legislative history, there were prominent exceptional cases over the course of the 20th century; and there was a gradual acceptance of more types of legislative history as aids to statutory interpretation during the decades leading up to Pepper v Hart. Thus, the simple narrative description that the rule was firmly in place until it was set aside in 1992 must give way to a more complex narrative of disagreement and gradual decline. Meanwhile, as the rule lost traction in the United Kingdom over the course of the 20th century, a growing accumulation of justifications for the rule has been assembled, and an ongoing debate has been taking place about the efficacy of reliance on legislative history. Based upon the different trajectories followed in other English-speaking common law jurisdictions, and particularly the United States, the decline of the rule was not inevitable. It follows that the current state of affairs is likely to change over time. [ABSTRACT FROM AUTHOR]

The retention and display of the remains of Charles Byrne, an Irishman with acromegaly, by the Hunterian Museum of the Royal College of Surgeons has been contentious for some years, and the moral case for his release for burial has been repeatedly made. This article makes the legal case through five arguments. The first three concern common law rights and duties; Byrne's right to burial, the duty of the State to ensure his burial where others do not, and the right of his friends to assume that duty. The fourth concerns Byrne's common law right to direct his disposal, and, related to this, not to be retained and displayed. The fifth, which underpins the rest, is that Byrne is not, and has never been property, and it is in fact intuitively and legally arguable that he, like other corpses, remains a person. The article finally outlines three options available to those wishing to ensure Byrne finally has the burial at sea that he sought to ensure in 1783. [ABSTRACT FROM AUTHOR]

The High Court continues to exercise its inherent jurisdiction to make declarations about interventions into the lives of situationally vulnerable adults with mental capacity. In the light of the protective responses of health care providers and the courts to decision-making situations involving capacitous vulnerable adults, this article has two aims. The first is diagnostic. The second is normative. The first aim is to identify the harms to a capacitous vulnerable adult's autonomy that arise based on the characterisation of situational vulnerability and autonomy as fundamentally opposed concepts or the failure to adequately acknowledge the conceptual relationship between them at common law. The second (normative) aim is to develop an account of self-authorised, intersubjective autonomy based on insights from analytic feminist philosophy. This approach not only attempts to capture the autonomy of capacitous vulnerable adults and account for the necessary harms to their autonomy that arise from standard common law responses to their situational vulnerability, it is also predicated on the distinctions between mental capacity, informed consent, and autonomy, meaning that it is better placed to fulfil the primary aim of the inherent jurisdiction—to facilitate the autonomy of vulnerable adults with capacity. [ABSTRACT FROM AUTHOR]

In medical negligence litigation, the standard for breach of duty is measured against the Bolam test which reflects accepted practice. Despite protracted debate and common law development, the Bolam standard remains the touchstone for litigation in this area. Clinical guidelines (CGs) are statements based upon best available medical evidence and are designed to facilitate clinical decision-making to optimise outcomes thereby reflecting expected practice. Nevertheless, there is little research that considers how CGs engage in litigation and their influence on judicial reasoning. Given the increasing pressures on the NHS amid rising costs of litigation, these are important issues. This study provides an original contribution to the literature on CGs in determining breach of duty in law. Using a mixed methods' approach, data from multiple sources have been gathered and analysed to assess the use of CGs by lawyers and the courts thereby adding to the discourse on the judicial shift away from deference to Bolam. It concludes by offering a conceptual basis for the use of CGs within a framework for reasonableness and promotes their principled use while avoiding constraints on expert testimony, experience, and exercise of clinical discretion. This study has relevance for academics, legal and medical practitioners, and policy makers. [ABSTRACT FROM AUTHOR]

This paper explores select themes relating to legal culture in European criminal justice post-Brexit by focusing on aspects of the common law trial process in the Irish courts. The incorporation of EU law and the ECHR within the domestic legal order has necessitated the nurturing of a constructive co-existence with the country's longer standing constitutional and common law traditions. Ireland and the United Kingdom have collaborated closely as common law Member States and the departure of the UK from the EU will affect Ireland's position in EU criminal justice in many and varied ways. Using the examples of victim participation in criminal trials and pre-trial access of suspects to legal assistance, the paper seeks to illuminate trends of consonance and dissonance in Ireland's relationship with European law. Drawing on the shared commitment to the protection of fundamental rights in the EU and the ECHR, the discussion reflects on some of the longer term implications of Brexit for the common law presence in European criminal legal culture. [ABSTRACT FROM AUTHOR]

The judiciary-exclusive role to allow or deny the commencement or continuation of contemporary derivative litigation is one of the critical aspects of such proceedings. Before the 2006 codification, derivative actions were brought under the common law as exceptions to the rule in Foss v Harbottle (1843) 67 ER 189. However, after realising intolerable deficiencies in the common law, the United Kingdom Law Commission (the Law Commission) recommended that there should be a new derivative procedure that met modern demands. This resulted in a statutory derivative remedy which can be activated in terms of Chapter 1 of Part 11 of the Companies Act, 2006 (United Kingdom). The effectiveness of legislative regulatory devices generally, and commercial law-related ones in particular, may to a greater extent depend on judicial interpretation and application. A conservative and literal interpretive approach that is purpose-neutral will significantly undermine the prospect of the current derivative remedy regime’s achieving the intended policy objectives. To that end, this contribution examines several court decisions handed down after the enactment of the 2006 Act and spanning over a period of approximately ten years. Ultimately, it will be considered whether the leave requirement in English derivative litigation is proving to be an invaluable and indispensable procedural prerequisite or an implausible barrier to honest litigants. [ABSTRACT FROM AUTHOR]

In Re: AB (Termination of Pregnancy), the Court of Appeal was asked to consider an assumption made about the future living arrangements of a pregnant patient, and the weight to be ascribed to her wishes and feelings when she had no real understanding of her predicament. This commentary explores the importance of taking into account the perspective of the patient, even if suffering from a mental disorder, and it will analyse the existing common law to show that the weaker the ability of the patient to form her own wishes and feelings, the more appropriate it would be to rely on the remaining evidence. [ABSTRACT FROM AUTHOR]

The enduring influence of the medieval Inns of Court on English common law culture is well attested. However, research has not previously examined the implications of their history as all‐male domestic, educational and professional establishments. This article uses textual, visual and spatial evidence to analyse the gendered culture of the Inns. It finds that through the Inns' homosocial practices and hierarchies, common law was engendered as a masculine form of knowledge and authority that was associated with a particular model of civic manhood. This gendered authority was then made socially legible through the embodied performances of lawyers in the public theatre of royal courtrooms.

The ability to claim an eminent right over property was central to the parliamentary war effort. Relying on a narrative of necessity that jurists in both England and in western Europe had increasingly used since the end of the sixteenth century, MPs gave the English political public a narrative parallel to that of a beggar in extreme duress: in order for it to survive, the property rights of English subjects needed to give way. Scholars have noted the Long parliament's use of necessity in the past in order to disassociate the causes of the Civil War from a 'rule of law' ideology or to make a claim that Parliament made a novel political theory of emergency. Yet the Long parliament was not abandoning English law nor was it generating a novel theory of emergency. Instead, it was relying on legal concepts that jurists and Crown officials commonly used to advance the power of the state. This law of necessity was controversial, however, and the Long parliament's continued use of it generated conflict even as it also enabled MPs to seize control over England's armed forces. [ABSTRACT FROM AUTHOR]

This Article uses two concepts from philosophical logic, the transitive property and syllogistic reasoning, to examine the history and theory of the common law. More specifically, the Article uses the transitive property to challenge the claims of sovereignty theorists that parliamentary supremacy is truly the most fundamental historical and theoretical basis of the British constitution. Instead, the transitive property helps show that the history and theory of the common law tradition has long provided a role for independent courts in maintaining the rule of law as a foundational principle of the British constitution. The Article then closely analyzes the reasoning of Marbury v. Madison to trace through two syllogisms the legal bases for the Constitution's and the courts' authority, demonstrating that Chief Justice Marshall grounded these sources of authority differently in his opinion. The Article uses these two syllogisms to challenge the view that the courts' exercise of judicial review must depend, logically or legally, on the existence of a written constitution. Taken together, these two elements of logical reasoning help show historical and theoretical affinities between the US and the UK constitutional traditions that run deeper than the existence of parliamentary sovereignty in the United Kingdom or a written Constitution in the United States. [ABSTRACT FROM AUTHOR]

In his inaugural address as the Vinerian Professor of English law in 1883, Albert Venn Dicey laid down the vision for a new pedagogy for the common law to replace the 'unaccountable' arrangement of apprenticeship that had hitherto served the common law. The latter, he likened to 'brick making'. At the heart of Dicey's vision was the idea that the common law be cognized as a system of rules and exceptions—in contrast to the classical common lawyers' self-understanding which took it to be a practice of reasoning—which could then, like other sciences, be expounded and taught by the newly emerging professoriate. Dicey pitched this as supplementing the 'brick maker' with a knowledge of the science underlying his craft. This article argues that Dicey's rationalist pedagogical vision, however, fundamentally altered the very nature of the common lawyers' enterprise since it was based on a philosophical model opposed to the one the common lawyers' traditional self-understanding presupposed. On the rationalist model (which Dicey presupposes), the common law is seen as being comprised of standards—with precedents being seen as rules—which it is the task of legal reasoning to bring to bear upon the case. On the reasonableness model—which is how David Hume, along with the common lawyer, understood the common law—the task of legal reasoning is to have a motivational traction on the community and precedents are rhetorical counters that serve to persuade the interlocutor. [ABSTRACT FROM AUTHOR]

The article discusses the operation of the private legal systems during the popularity of the London Stock Exchange (LSE) in the 19th and 20th centuries, including issues on law and self-governance. Topics include the prevalence of extralegal enforcement of contracts during the period, the use of prohibited transactions like time bargains and options by LSE members, and how the LSE maintained its relationships with English courts and common law during the period.

There is an increasing tendency to create an accelerated judicial approach to business sales by plaiting the informal approach and the state-supplied statutory approach when dealing with corporate distress. This article investigates the extent to which formal insolvency procedures in the UK and the USA can be customised through pre-planning to achieve business sales and critically evaluates the challenges brought about by the plaiting. It is argued that the accelerated approach to business sales in insolvency tends to shift the key properties of the statutory procedure from creditor coordination and plan formulation towards verification of pre-arranged transactions. In this way it creates a vacuum of control over the quality of business decision-making and eliminates the inclusiveness of the statutory procedure leaving ample room for rent-seeking by insiders. To mitigate these deficiencies the article suggests a more responsive approach with increased accountability and better-equipped evaluation to control abuse. [ABSTRACT FROM AUTHOR]

The author discusses English poet Edmund Spenser's interest in English common law and discussion of it in his various works, including "A View of the Present State of Ireland" and "Faerie Queene." Topics include Spenser's defense of common law in "The Faerie Queene" through his discussion of the Briton monarchs Donwallo, Mertia, and Howell Dha, Spenser's argument that English common law has a long history, and Spenser's argument that English common law is useful in the Elizabethan Age.

Privacy has been recognised nationally and internationally as a major challenge posed by the growing proliferation of drones, otherwise known as ‘remotely piloted aircraft’, ‘small unmanned aircraft’ or ‘unmanned aircraft systems’, with surveillance capability. Currently in Australia an uneven landscape of common law causes of action, surveillance statutes and data protection laws provide fragmented protection of privacy. This article compares that legal response with those of the United Kingdom and the United States. It identifies commonalities and differences between those approaches that may be instructive as Australia determines the appropriate response to the potential of invasion of privacy posed by this form of transformative technology. [ABSTRACT FROM AUTHOR]

The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Article builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Article compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today. This Article focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Article examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair. [ABSTRACT FROM AUTHOR]

While many historians refer to the legal presumption of marital coercion when discussing patterns of lenient judicial treatment of women in eighteenth-and nineteenth-century English criminal trials, few have analyzed the presumption in enough detail to ascertain the impact it genuinely had. This article undertakes close legal analysis of marital coercion. It argues that the presumption was not frequently referred to in nineteenth-century Old Bailey criminal trials for receiving stolen goods because of increasing judicial strictness as to the application of the presumption. A defendant had to prove her marriage, her husband's presence at the crime scene, and, by the nineteenth century, evidence of her husband's actual control. The presumption may have shifted from an irrebuttable presumption to one rebuttable upon proof that any of these requirements were absent. Therefore, women's lenient court treatment during the modern period cannot be straightforwardly attributed to frequent successful recourse to marital coercion. [ABSTRACT FROM AUTHOR]

This paper revisits the English common law rules on the recognition and enforcement of foreign judgments in personam. It seeks to demonstrate that, mainly due to the narrow conception of the foreign courts' 'international jurisdictional competence', the operation of this aspect of the English conflict-of-laws rules gives rise to problematic outcomes. Subsequently, the paper proceeds to identify and evaluate three of the main doctrinal models which have been proposed in response to these shortcomings. It is contended that, despite their virtues, ultimately, none of these models provides the desirable basis for recasting the law. The paper's main contribution is, therefore, to advance an alternative approach for the reformulation of the recognition and enforcement regime at common law. In this regard, it is argued that the foreign courts' international jurisdictional competence should be defined more broadly as to include the jurisdictional 'gateways', presently codified within CPR Practice Direction 6B para 3.1. [ABSTRACT FROM AUTHOR]

Tallage-at-will was a seigniorial tax on unfree tenants and hereditary serfs in medieval England, and one of the two main tests of villeinage under the common law. Contemporary lawyers argued that it was compulsory and uncertain, which has led many historians to portray it as a variable, exorbitant and arbitrary component of villein rent, but this article offers the first comprehensive survey of its form, operation and significance. It reveals that by c.1300 the frequency and level of tallage had become codified and largely fixed, it existed in various forms, it was not found on many manors, and methods of determining individual contributions varied. Thus the example of tallage-at-will serves to reinforce the heterogeneity of villeinage in England and, by extension, the unevenness of its experience on the ground. The absence of tallage-at-will from a sizeable minority of manors c.1300, and its rapid decline and disappearance after 1348–9 from many more, raises questions about its significance as one of the two key tests of villeinage in the common law. Finally, the differences between villein tallage and free aid are explored, and found to be less clear-cut than medieval lawyers would have us believe. [ABSTRACT FROM AUTHOR]

Company directors play an important role in society. Their activities have significant effects on the interests of their companies, shareholders and other stakeholders. Consequently, the law regards them as fiduciaries and imposes duties which set out behavioural expectations. The private enforcement regime is the primary mechanism adopted by many common law jurisdictions for securing compliance with directors' duties. The crucial question is whether this regime is effective in securing enforcement of directors' duties. This article addresses this question by examining the fundamental weaknesses of the private enforcement regime. In exploring these weaknesses, it focuses on the UK and Nigerian experience. It crucially argues that the private enforcement regime, due to its weaknesses, is unable to provide deterrence and compensatory benefits. It is therefore ineffective as an enforcement mechanism for breach of directors' duties. This article therefore concludes that there is need for a complementary enforcement regime. [ABSTRACT FROM AUTHOR]

In 1885 A.V. Dicey identified the rule of law as a key principle of British constitutional law. Presenting it both as a product of English common law method and an expression of classical liberalism, Dicey's concept lingered on into the twentieth century but mainly as a contentious ideological doctrine or simply as a vague rhetorical slogan. During the last fifty years, however, the concept has been revived, recrafted, relocated and reified. The rule of law has become a universal trope, albeit with a range of contestable meanings. This article traces this development, showing how it has been converted into a phrase of considerable political potency not only domestically but also in the international arena. [ABSTRACT FROM AUTHOR]

English competition law before 1900 developed over many centuries and reflected changes in political conditions, economic theories and social values. It mirrored the historical movements in England, from the medieval ideal of fair prices and just wages to 16th and 17th century nation-state mercantilism to the 18th and 19th century Industrial Revolution and notions of laissez faire capitalism and freedom of contract. English competition law at varying times articulated three fundamental principles: monopolies were disfavored; freedom to trade was emphasized; and fair or reasonable prices were sought. The Sherman Act truly was a watershed that significantly took a different path from English law as it had evolved. In England, legal challenges to monopolization were limited to the royal creation of monopolies and were concentrated in the 17th and early 18th centuries. A prominent element of English competition law—bans on forestalling—was repealed in the first half of the 19th century. Enforcement of English law against cartels was largely emasculated by the end of the 19th century with the ascendancy of freedom of contract and laissez faire political theory. [ABSTRACT FROM AUTHOR]

The UK’s constitution is obscure and open textured. The powers of the state are vested in the Crown, which is subject to diverse and contradictory interpretations of its identity. The obscurity of the UK constitution is dysfunctional and needs to be reformed by way of a written constitution. The shortcomings of the UK’s unwritten common law constitution is illustrated in the Supreme Court’s majority judgment in the 2017 Miller case (R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5). The common law constitution makes the judges the constituent power and especially vulnerable to criticism when dealing with intensely disputed political matters. In the absence of a written constitution the Supreme Court may lack institutional confidence in its role and authority and seek to portray its decisions as merely technical applications of the law rather than assertions of creative and active constitutional law-making. A written constitution would be an opportunity to design an integrated and coherent body of constitutional law, transform the Supreme Court’s status and improve the clarity of its constitutional decision-making. [ABSTRACT FROM AUTHOR]

The article focuses on Magna Carta in the form of the U.S. Constitution and its Bill of Rights, with its First Amendment protecting religious freedom. It mentions claims based on common law and Magna Carta and exclusively made claims on natural law and natural rights philosophy as well as natural rights arguments. It also mentions Magna Carta was the basis of the American protection of individual conscience and the separation of church and state.

Codification seems to be coming back into vogue in Great Britain, especially in Wales and in Scotland as a result of devolution and a related (if possibly temporary) surge in nationalism. Using Germany as a comparator, we argue that a codification renaissance should be met with caution. By examining German literature on the history of codification, it can be seen that codification is a difficult transplant in Great Britain. In any event, the German experience shows that codification is no panacea. Furthermore, when it comes to codification, we are quite literally speaking a different language to continental lawyers. Codifying statutes, more achievable in the British jurisdictions than larger, continental-style codes, reflect a peculiarly British style of codification, but risk being the compromise that pleases nobody. A patchwork of substantive reform, consolidation and restatement is proposed as a more suitable domestic solution. [ABSTRACT FROM AUTHOR]

In his 2001 monograph on Aliens in Medieval Law: The Origins of Modern Citizenship, Dr Keechang Kim suggested that there was no evidence before the late fourteenth century that birth beyond the sea made a person an alien. This article discusses a series of cases heard from the mid-thirteenth century onwards in which tenants pleaded the claimant's birth overseas by way of bar to hereditary claims to land and in which it seems to have been treated as a bar in itself, though one to which the king might grant special exemption. This seems to have remained the position until legislation of 1351 (triggered by doubts about the eligibility of two sons of Edward III born overseas to succeed to the throne) which not only confirmed their eligibility but also made the first general extension of the right to inherit to children born overseas to parents in the king's allegiance. [ABSTRACT FROM AUTHOR]

The UK Constitution is either theorised as a political constitution that is premised on the Westminster model of government or as a legal constitution that rests on moral principles, which the common law is said to protect. Both models conceive of democracy in procedural terms, and not in normative terms. However, the democratic legitimacy of laws stems from a complex constellation of conditions that no longer involves popular or parliamentary sovereignty alone. In this paper, I break with the traditional account that bases law-making authority on the condition of procedural democracy. Instead, I argue for a normative conception of democracy that conditions parliamentary authority. I show that failure to do so amounts to a glaring omission in certain cases. [ABSTRACT FROM AUTHOR]

In R (UNISON) v Lord Chancellor (Equality and Human Rights Commission Intervening) the Supreme Court held that fees for bringing claims in the employment tribunal were unlawful both under common law and as a matter of EU law. The judgment has very significant implications for any system in which the enforcement of employment or social rights is left to individual claimants, the paradigmatic model adopted in the UK. Recent government policy has ignored the public function of individual tribunal claims in delivering employment rights at the systemic level, exemplified by the theoretical assumptions and justifications which lay behind the introduction of fees. The Supreme Court's analysis of the rule of law and the common law right of access to justice is in sharp conflict with these policies. I discuss the difference between the common law principles and the parallel principles in EU law and under Article 6 of the ECHR. The article explores the consequences of the judgment for cases rejected, dismissed or not brought owing to fees, and its longer-term implications for impediments to access to courts and tribunals, all the more important with Brexit on the horizon. The judgment represents an important triumph of the rule of law over the increased marketisation of legal rights. [ABSTRACT FROM AUTHOR]

The historiography on protection in the nineteenth-century British Empire often assumes that British humanitarians were the progenitors of protection schemes. In contrast, this article argues that the position of Protector or Guardian for slaves and Indigenous peoples in the British Empire drew on Spanish, Dutch, and French legal precedents. The legal protections and slave codes operative in these European colonies are compared to British colonial territories, where there was no imperial slave code and no clear status of slaves at common law. Drawing on debates in the House of Commons, Parliamentary Commissions of Inquiry, and the published work of abolitionists and anti-slavery societies, the article examines how the pressure for amelioration in the British Empire coincided with the acquisition of new colonies that offered ready-made models for slave protection. British reformers combined their calls for greater protection for slaves with their extant knowledge of European protective regimes. [ABSTRACT FROM AUTHOR]

The article compares the mandatory retroactivity of common law decisionmaking practices in American and English courts as of 2018, and it mentions a judicial restraint doctrine and the U.S. federal law-related case Harper v. Virginia Department of Taxation. American state laws and prospective decisionmaking in England are examined, along with a prospective overruling doctrine, legal precedent, and British judicial power.

The National Health Service in England and Wales is dependent upon the flow of confidential patient data. In the context of consent to the use of patient health data, insistence on the requirements of an 'informed' consent that are difficult to achieve will drive reliance on alternatives to consent. Here we argue that one can obtain a valid consent to the disclosure of confidential patient data, such that this disclosure would not amount to a breach of the common law duty of confidentiality, having provided less information than would typically be associated with an ‘informed consent’. This position protects consent as a practicable legal basis for disclosure from debilitating uncertainty or impracticability and, perhaps counter-intuitively, promotes patient autonomy. [ABSTRACT FROM AUTHOR]

The article focuses on the decision of Great Britain's High Court in the case ABC v St George's Healthcare NHS Trust regarding the duty of clinicians to communicate genetic information to a patient's relatives. It mentions claim by a patient's daughter against her father's doctors, holding that they neither owed her a common law duty of care nor breached Article 8 of the European Convention on Human Rights. It mentions ramifications for British medical law.

The article explores the geography of the legal profession and legal culture in Great Britain and Ireland during 1500-1850. Topics discussed include composition and distribution of the legal profession, regional differences in the use of law and legal institutions across historic Europe, and ways in which English common law worked alongside indigenous law traditions.

This paper analyses the jurisprudence on the relevance of the commercial context to principles of the law of equity and trusts. We criticise recent UK Supreme Court decisions in the area (chiefly Williams v Central Bank of Nigeria, FHR European Ventures v Cedar Capital Partners and AIB Group v Mark Redler & Co) and identify a trend of the 'commercialisation' of the issues. The cases are placed in comparative context and it is argued that there is an unsatisfactory pattern of judicial reasoning, exhibiting a preference for some degree of unarticulated flexibility in commercial adjudication. But the price of that flexibility is a lack of doctrinal coherence and the development of equitable principles that will apply in, and beyond, the commercial context. We also argue that this trend has important implications for the coming rounds of Supreme Court appointments. [ABSTRACT FROM AUTHOR]

The Social Action, Responsibility and Heroism Act 2015 entered into force on 13 April 2015. It is too soon for it to have been considered judicially, and it has not yet been subjected to sustained academic analysis. Accordingly, this article considers its impact. In doing so, it situates the Act in its social context and draws attention to the fact that it is part of a large network of statutes that share the same objectives. It is argued, contrary to prevailing views, that parts of the Act change the law. It is also maintained that the Act's reach is not confined to personal injury cases or even to tort cases. It potentially applies far more widely, including to contractual actions that allege a failure to take reasonable care. In addition to analysing the Act, this article investigates why the legislature might want to restate the common law (which is what the Act does in part), whether replicating the common law is desirable and, if the legislature is bent on restating the common law, how it should go about doing so. [ABSTRACT FROM AUTHOR]