English law traditionally draws no distinction between the liability of public bodies and that of private individuals. There is no general right to recover damages in respect of loss caused by an administrative act, even where that act is unlawful according to public law principles. An aggrieved individual must establish an ordinary private law cause of action: Supreme Court Act 1981, section 31(4). One of the most important innovations contained in the Human Rights Act 1998 is the creation of a form of public law liability. Section 6(1) states that it is unlawful for a public authority to act incompatibly with a Convention right. Section 7 enables a victim of an act contrary to section 6 to bring proceedings against the offending authority. Section 8(3) empowers the court to award damages if it is satisfied that such an award is necessary to afford just satisfaction to the victim.

I

The title of this essay refers to the titles of three recent works by Professors of Jurisprudence. It is proposed to use these works to illustrate the problem of Jurisprudence in discovering its own appropriate concepts and making sense of its literature.

Jurisprudence, it may be assumed, is what Professors of Jurisprudence write. They write it presumably for the edification of students in the Faculties to which they are attached, to help them to see the coherence and the relevance of the more specialised studies in which they are engaged. These Faculties are Faculties of Law. But what is law? The diverse strange and even paradoxical ways in which this question has been answered by serious thinkers, says Professor Hart in his opening paragraph, constitute “a situation not paralleled in any other subject systematically studied as a separate academic discipline.” If we say, then, that Professors of Jurisprudence write about law, our statement may fail to convey any exact or agreed information. Even if it may correctly be assumed that Professors of Jurisprudence use the word ‘law’ to refer to their basic subject-matter, it cannot be assumed that the precise identity of this subject-matter is universally or even generally agreed. Consider some of the identifications of law quoted by Professor Hart—‘ What officials do about disputes is… the law itself’; ‘The prophecies of what the courts will do… are what I mean by the law’; Statutes are ‘sources of Law… not parts of the Law itself’; ‘Constitutional law is positive morality merely’; ‘One shall not steal; if somebody steals he shall be punished… If at all existent, the first norm is contained in the second norm which is the only genuine norm… Law is the primary norm which stipulates the sanction.’

Twenty years ago Mr. Cairns set himself the task of looking at law from three points of view, that of the social sciences, that of logic and the empirical sciences, and that of philosophy. Law and the Social Sciences was published in 1935, the Theory of Legal Science in 1941. The volume under review completes the trilogy. The object of all these volumes is the same—‘To construct the foundation of a theory of law which is the necessary antecedeat of a possible jurisprudence’. All those who have come under the spell of Mr. Cairns' stimulating thought will look forward with the greatest interest to the application and expansion of his conclusions which is now promised us in a projected final work, The Elements of Legal Theory.

It was perhaps never very likely that the proponents of fundamental breach would allow their doctrine to die just because of some obiter dicta on the subject from the House of Lords. In that respect, therefore, the recent decision of the Court of Appeal in Harbutt's “Plasticine” Ltd. v. Wayne Tank and Pump Co. Ltd. need cause no surprise. What had happened in that case, essentially, was that the defendants had agreed to manufacture some equipment and to instal it in the plaintiffs' factory under a contract, clause 15 of which limited the defendants' liability to the amount of the contract price (£2, 330). A small and easily corrected defect in the equipment caused a fire which destroyed the factory and resulted in a loss to the plaintiffs of some £150,000. The Court of Appeal held (Lord Denning M.R. dubitante) that on its true construction clause 15 covered the loss in the events which had occurred. The whole court nevertheless joined in holding that the destruction of the factory and consequent discharge by breach of the contract had the effect of making clause 15 inapplicable. Judgment was given for the full amount of the loss.