Wherever there exists any kind of administration of justice, people will soon realize that a man who makes, or receives, a declaration has to be very careful if he wants to be quite sure of its ultimate legal effect; and the same, of course, is true of all manner of legal business. A man may believe that the promise he is giving has one meaning, but later be told by the judge that it has another; or he may enter into an agreement on the assumption of the existence of certain facts, which afterwards turn out not to be as assumed. There are many ways in which such a discrepancy between verba and voluntas, or letter and spirit, or act and intent, can come about; and a not infrequent one seems to be that the two parties to a contract wish to cheat one another. Very naturally, the temptation to take advantage of a person's lack of forethought must be particularly great in an age when it is permissible to interpret the words of an agreement in a strict and narrow fashion, and when a formal undertaking is considered valid no matter by what trickery you have been led to give it. The Spartan king, Cleomenes, concluded a truce with Argos for thirty days; but he broke it by night, the truce having been made for thirty days. Q. Fabius Labeo, for the Roman senate, arbitrated a boundary dispute between Nola and Naples. He interviewed the parties separately, appealed to their generosity and induced them to make substantial concessions. In the end, there was a large strip of territory left between Nola and Naples, which Labeo awarded to Rome. By the time of Cicero, both these cases were regarded as cases of fraud and as illustrating the maxim summum ius summa iniuria. The history in Roman law of the problem of verba and voluntas has been the subject of much discussion during the past few years. I may, perhaps, be forgiven for drawing attention to a Biblical narrative which is dominated by this problem, though the commentators do not appear to have noticed it. It is the story of the sale of his birthright by Esau.

A medical practitioner's role as adviser prior to treatment is crucial in providing the basis on which the patient consents to a procedure or not. In Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, the House of Lords confirmed the applicability of the “Bolam” test, historically the province of treatment cases, to cases concerning the disclosure of risks. By a majority decision, although without a clear ratio, the question of what risks a practitioner should disclose was regarded as matter for clinical judgment. Where a practitioner could demonstrate that he had disclosed an amount of information that was in keeping with the practice of a responsible body of medical opinion, this would defeat a claim in negligence. Lord Bridge provided two exceptions: first where there was a substantial risk of grave adverse consequences, an example of which he gave as the 10% risk of a stroke, and, secondly, where the patient had specifically questioned the practitioner. In both circumstances, the risk ought to be disclosed regardless of settled medical practice. Lord Scarman dissented on the basis that the analytical starting point in disclosure cases was the patient's right to know what risks they would be subjected to; this was not a matter for clinical judgment.

Prosecutions for the crime of blasphemy are rare. But one which took place recently in London has elicited from the Home Secretary an utterance which is of interest and of importance.

The period from about 1300 to 1628 witnessed the beginnings of martial law, the establishment of custom governing the situations in which it might be invoked, then a break with that custom followed by a period of widened application, and finally, a reaction, once again restricting the Crown's use of martial law. Although extended, this period needs to be understood as a coherent whole, what might be termed, the first chapter in the history of martial law in England.

On 30 April 1982, after almost a decade of careful negotiations at the Third U.N. Conference on the Law of the Sea, the Law of the Sea Convention was adopted by the positive votes of 130 States. In one of its main sections, Part XI, the Convention sets out a detailed regime for the exploration and exploitation of the deep seabed and its resources and firmly places deep seabed mining under the regulatory control of the International Seabed Authority, to be established in Jamaica. However, as is well known, the United States and certain other Western countries have adopted a negative posture towards various aspects of Part XI and, for this reason, they are unlikely to ratify the 1982 Convention in the near future. Against this background, the question whether the provisions in Part XI may be binding even vis-à-vis non-parties to the LOSC has assumed considerable importance in contemporary international law.

In Spain in 1981, near Seville, there was a spectacular discovery. It allows us to see back to the reign of Domitian, third and last of the Flavian emperors (AD 81–96), and to recreate a vivid picture of the little local senate of Irni meeting in the very shadow of the municipality's newly acquired constitution. Ten bronze tablets, each nearly a metre wide and rather more than half a metre high, were fixed along the wall of its council-chamber, presumably at a level at which letters about half a centimetre high could be clearly read from ground level. Each rectangular tablet carried three columns of writing, each column about fifty lines, each line an average of about ten words. At five hundred words a column and thirty columns, the Statute of Irni— the lex Irnitana—was thus a massive document. The discovery in 1981, by people using metal detectors to search for coins, was of no less than six of the ten tablets. Later excavation discovered a few more fragments. The last tablet bears at its end the date 11th October, AD 91.

THE recent judgment of the Court of Justice of the European Union in the case of Dano (ECLI:EU:C:2014:2358) clarified some important points as regards access to social welfare benefits by EU citizens who move to another Member State. Furthermore, the judgment could have broad implications for any attempts by the UK Government to renegotiate the UK's membership of the EU, which is likely to focus on benefits for EU citizens coming to the UK. This note is an updated and expanded version of my analysis on the EU Law Analysis blog: http://eulawanalysis.blogspot.co.uk/2014/11/benefit-tourism-by-eu-citizens-cjeu.html.

It is a long-established legal rule that the contents of a will, once it is admitted to probate, are available for inspection by any member of the public. This article is the first examination of this remarkable rule, its possible rationales, and its attendant disadvantages. Particular attention is paid to the problems of the ensuing loss of privacy. Legislative attempts to limit open access are considered together with non-legislative devices used for the same purpose: the secret trust; and applications for the sealing of a will (a device especially prevalent in the case of royal wills).

THE public domain is all the rage. It is invoked to breach copyright’s encroaching enclosure of what one might grandiloquently call the cultural commons of the mind. The heralds of our “remix culture” deploy the public domain to smash that icon of the entertainment–industrial complex, the Romantic Author. But even before the Author became Romantic, he still served as a shill for concentrated industry, then the printing–bookselling complex. Authors’ moral claims of labourious entitlement merely masked the power grab of the printers. If we speak of a grab, we imply that copyright was seised from somewhere. So whence, in this account, was copyright wrested? From the public domain.

That it takes three persons, a plaintiff, a defendant and a judge, to make a case and reach a judgment, was clear to the earliest writers on English law, and implicit in such a proposition was the understanding that a judgment was not properly attainable unless the three persons of the trinity were kept distinct. A fundamental idea of this nature is not, of course, the peculiar property of English law, and being axiomatic it has long been enshrined in the maxim that no one may be judge in his own cause. As might be expected, Coke turned the notion into a phrase. “It is,” he wrote, “a maxim in law aliquis non debet esse iudex in propria causa.”

The aim of this article is to consider the relations of nuisance as a tort to three other branches of the law of tort:

(1) The rule in Rylands v. Fletcher.

(2) Negligence.

(3) Trespass to land.

In 1951, an argument that schools should be charitable only if they offer free or reduced tuition was dismissed by the court as a “startling proposition”.1 Yet, in 2010, an independent school was assured of its charitable status only when it agreed to offer means-tested bursaries.2 So did the law change with the Charities Act 2006 (‘the Act’)?

There can be no doubt that the existence of paradoxes has stimulated vigorous and highly productive activity in philosophy and in logic. Take two famous examples: The Liar Paradox, which arises from a sentence such as

L This statement is false.

and the Russell Paradox which arises from the sentence

R The class of all classes which are not members of themselves

is a member of itself.

The first of these has been a source of anguish for over 2,000 years. The second has engaged the serious attention of logicians for over three quarters of a century. Investigation of paradoxes of this sort has spawned whole new fields of study, such as technical semantics and axiomatic set theory.

It has been claimed that legal reasoning is infected with paradoxes and that these paradoxes are similar in structure to those, like the two we have cited, which are of interest to the logician. If this claim were true one of two consequences would follow. Either the jurisprudent would face what would in all likelihood be a protracted struggle with these legal paradoxes resulting, perhaps, in significant additions to legal theory, or else, if these paradoxes were sufficiently similar to those of the logician, he might try to utilise the logician's results to solve his own legal puzzles.

The first alternative, though attractive to a theoretician, may appear rather dismal to those engaged in the business of law. Whereas reflection on the logical paradoxes can lead to only more refined abstractions—the philosopher's meat and drink—legal theory is rather intimately connected with practical affairs.

This article investigates an apparent, convergent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers, and argues that this is best seen as an unprincipled drift. The shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.

One of the principal features in the development of private law in recent years has been the dramatic increase in the variety of circumstances in which courts are willing to hold that one party owes a duty of care in tort to another. The view that the categories of relationship which attract a duty of care at common law are immutably fixed by precedent and that any decision to extend them must be left to the legislature, expressed by one Law Lord as recently as 1970, now seems somewhat quaint and it is generally accepted that courts can, in appropriate cases, extend the scope of liability for negligence to embrace new types of relationships, conduct and harm. As the boundaries of liability have been rolled back, old immunities have been removed and duties of care (albeit sometimes restricted) have been established in areas previously considered to be beyond the scope of the law of tort. But there are still areas of confusion and difficulty, perhaps the most prominent of which in recent years have been the extent of liability for economic loss and for nervous shock. Another area of doubt, however, is the extent of liability for omissions. While it has not attracted as much attention as economic loss or nervous shock, the distinction between acts and omissions still exercises a powerful influence on judicial decision making on the question of tortious liability. This article considers the question of liability for one such omission, namely liability for a failure to warn someone of imminent danger. Before doing so, however, it is necessary to clarify exactly what is meant by an “omission.”

Mr. President and Gentlemen,—You make me feel a little shy. When I somewhat incontinently accepted your kind invitation I wholly forgot that I was a Judge of the Privy Council. Thank heaven, I have no written address to deliver, and I am informed that there are no reporters present. But even that does not free me from embarrassment. I have under-taken to speak to you tonight of the position of the Judicial Committee in the Constitution of the Empire, and I have to remember that we who sit on the Judicial Committee have taken a tremendous oath not to disclose any of the secrets that come to the fore there; and I have also to consider that it was only this very morning that at half-past ten, in the absence of the Lord Chancellor, who is frequently called away at this moment on other business, I was sitting to dispose of the list in that Court, presiding as the senior remaining ex-Lord Chancellor. Well, we finished the list at eleven, and I went over to sit on the Woolsack at the House of Lords, which I occupied till a ' quarter to four, when public business made it necessary that I should adjourn the tribunal a little early. I did not say why, and my unsuspecting colleagues acquiesced. Now, gentlemen, you will see why I have something of the sense of the boy who comes to tell tales out of school. However, let us begin.

The subject falls conveniently into two parts, (I) comment made during the century since McNaghten's Case in 1843 on the answers given by the judges to the questions put to them by the House of Lords, and (II) discussion of the defence of irresistible impulse. For the convenience of readers the Questions and Answers are reprinted from the tenth volume of Clark and Finnelly's Keports, 200, 209–212.