In what circumstances can a person be liable to a pecuniary remedy for conduct which has not caused the plaintiff any harm? This question lies at the heart of the present topic, in which the plaintiff seeks to disgorge a benefit acquired by the defendant through the latter's wrongful act, even though the wrong has not actually caused him loss or injury. Consider, for example, a trespasser who has benefited by using a track across the plaintiff's land without reducing the value of the land; the plaintiff, who might never have been willing to consent to such use of his land, now seeks payment as if his permission for that user had been sought at a price. In terms of “unjust enrichment,“ the plaintiff's claim is that the defendant's enrichment is “ “unjust” by virtue of the wrong committed, without showing that the enrichment is at his expense.

I must begin with a few words about my predecessor in the Rouse Ball chair, Sir David Williams. David Williams has had a career of outstanding service to legal studies, to universities, in particular Cambridge, and to the wider public. After completing his studies, he became one of the formidable group at the University of Nottingham's Law Faculty. He went on to Oxford—he has told me that he went there as a missionary—and during his time there produced his pathbreaking books on official secrets and public order, Not in the Public Interest and Keeping the Peace. He was, it must be said, not the only Cambridge public lawyer-missionary in Oxford. Sir William Wade was also there. By 1967 it appears that two missionaries were no longer required, and David Williams returned to Cambridge. In 1982 he succeeded Wade—by now also back in Cambridge—as Rouse Ball Professor. He has been an important presence in the world of administrative law and his contribution to environmental issues has been enormous. We are delighted that now he has laid down the burdens of office as Vice-Chancellor he has returned to the Faculty— albeit to a different chair.

This article aims to clarify what is meant by “a source of law” argument. A source of law argument justifies an action by showing that it has as its legal basis the best interpretation of a rule, principle or value identified in a material source of law. Such an argument is authority-based in that it appeals for its correctness to a collective decision to adopt a particular rule. The identification comes from an analysis of the practices within a specific legal community. The concept of “a rule of recognition” is not helpful since it glosses over the contestability of what is a source of law and its revisability over time. In a second part, the article illustrates the dynamics of change by reference to the status of EEC/EU law in a number of national laws and the 1966 Practice Statement on precedent in the House of Lords.

In his Analysis of the Laws of England, Blackstone briefly assesses the work of those of his predecessors “who have laboured in reducing our laws to a system.” Glanville and Bracton were overburdened with ancient learning; the abridgements of Fitzherbert and Brooke “merely alphabetical in character”; Francis Bacon's Elements “purposely avoided any regular order”; Coke's Institutes “are unfortunately as deficient in method as they are rich in matter.” However, “Sir Henry Finch's discourse of law is a treatise of a very different character; his method is greatly superior to all that were before extant; his text is weighty, concise and nervous; his illustrations are apposite, clear and authentic.” Indeed by Blackstone's own account it would seem that but for the abolition of military tenures and the disuse of real actions, which had rendered “near half of the book obsolete,” Finch's “happy progress in reducing the elements of the law from their former chaos to a regular methodical science” might have provided the scheme for that “proposed course of academical lectures” which was the immediate source of the Commentaries on the Laws of England.

IT is now well settled in English law, as well as in several other common law jurisdictions, that when their company is in some form of financial difficulty, directors cannot ignore the interests of their companies’ creditors, but rather they have a duty to their company to consider those interests. This is all well and good, but while this general principle has been stated on many occasions by various courts, the courts have been slow to define important aspects of this responsibility. There are two major issues that have not been clarified. The first is this: from what point is the duty to consider creditor interests imposed on directors? There has been no unanimous judicial pronouncement on this issue, and this has produced some uncertainty. We know with some certainty that the duty does not operate where a company is clearly solvent. At the other extreme, we have certainty in that courts have said that the duty does apply where a company is insolvent.

The debate in January 2007, as presented by the mass media, concerning whether an exemption should be provided for Roman Catholic Adoption Agencies from new laws prohibiting discrimination on grounds of sexual orientation in the provision of goods and services, rested upon two erroneous assumptions. The first was an assumption that awarding exemptions on grounds of religion was novel; the second was that the debate concerned whether there ought to be a religious exemption at all. This article seeks to engage with the real debate concerning the Equality Act (Sexual Orientation) Regulations 2007, which is not whether there ought to be a religious exemption (since one has been given) but rather the scope of the exemption. It also aims to show that religious exemptions are common in English law, including discrimination law, and to elucidate the various exemptions, paying particular attention to their beneficiaries and the basis on which discrimination is permitted. In short, this article seeks to understand the state of the law as a whole contextualising the recent moral panic.

Companies depend upon loan finance as one of their major sources of capital. However, banks and other financial institutions involved in the business of lending money to companies generally ensure that their exposure to the risk of non-repayment is minimised by taking security over the debtor company's property. One particularly important type of security which is available when money is lent to a company is the floating charge.

In an imperfect world, imperfect men have never lived in harmony; the consequences have been inevitable, regrettable and, often, productive of legal history. Even the neatest householder, the most peaceable citizen, is sometimes a bad neighbour. He chooses to fiddle when I choose to nap; he permits his dog to howl at midnight; he kindles his back-yard fire where its smoke will choke my back-yard guests. More serious, and more relevant in terms of legal consequences, he manufactures strange and noxious odours which he allows to escape from his premises or he throws waste material into the stream which wanders across his property on its way to my own land. Disregard for the convenience, well-being and property rights of others is not unique to the twentieth century; the under-lying problem of the bad neighbour was well enough known to the twelfth. Then, and long thereafter, one man's mill needed more water to grind efficiently and so he diverted the millstream with only passing regret, if that, for what the diversion might mean to his neighbour's mill downstream. His sheep escaped from pasture and so he raised a hedge across an entry, thereby forcing his neighbour's flock to find a new and less convenient path.

Response could always be immediate and forceful; self-help has the virtues of speed, simplicity and cheapness. But unless the creator of the offending mill or hedge was willing to accept his neighbour's response, what was originally an attempt at unilateral solution of a problem could well escalate into a quarrel culminating in violence out of proportion to the issue.

The essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

The House of Lords decision in YL v. Birmingham City Council considers the issue of what is a public authority under the Human Rights Act 1998. The question is a critical one as the Convention rights, contained in the Human Rights Act, are directly enforceable only against public authorities. The issue of whether a body is a public authority has proved highly controversial. The hiving-off of many traditional governmental functions through policies such as privatisation, outsourcing and projects under the Private Finance Initiative (PFI) has led to a blurring of the traditionally understood public-private distinction. The changed nature in the way that public services are delivered has led to sharply divergent views among the judiciary about which functions are those of a public nature for the purposes of the Human Rights Act. This is evident in the YL judgment itself: a split decision, with two dissenting judgements. The division in the House reflects different understandings of the operation of the Human Rights Act, the public-private distinction and, perhaps more fundamentally, competing ideological stances.

The recent decision of the House of Lords in Titchener v. British Railways Board (which will be considered below) is a reminder of the uncertainty that strangely still surrounds the defence of consent or volenti nonfit injuria to an action in negligence. It is clear that the defence at least includes the case where there is an agreement, not necessarly constituting a contract, between the plaintiff and the defendant under which the plaintiff foregoes, in advance, a claim for negligence which might otherwise accrue to him, i.e., the plaintiff agrees that conduct of the defendant which would otherwise be actionable will not be so. The principal uncertainty is whether the plaintiff's mere voluntary exposure of himself to a danger already created, or likely to be created, by the defendant's negligence can give rise to the defence of volenti, either on the basis that such conduct of the plaintiff constitutes the requisite agreement to forgo a claim, or on the basis that no such agreement is necessary. This and other problems in regard to the nature and scope of the defence will be considered in this article.

Some years ago Professor Lawson reminded a Continental audience that “[i]n the English language there can be no confusion between the two legal senses attaching to the German word ‘Recht’ which has made it necessary to coin the two technical terms ‘objektives’ and ‘subjektives Recht.’” For in the English language ”the former is ‘law’, the latter ‘a right.’” In fact, as Lawson went on to explain, the notion of a “subjective right” in the civilian systems is not quite the same as “right” in the English system, in that as far as English lawyers are concerned “the term ‘right’ has no metaphysical significance.” Yet Professor Lawson suggested at one point in his report that although in America one speaks of “interests” rather than rights, the two terms are synonymous; and the association of rights with interests has also led one Belgian theorist to conclude that the common law does recognise the concept of the le droit subjectify It is the purpose of this article to return to this topic of the subjective right and English law in order to suggest that the association of le droit subjectif with “protected interest” ought to be treated with caution.

Dicey is not fashionable these days, and for understandable reasons. The cocktail of utilitarianism and positivism, the amalgam of Bentham and Austin, that he produced led inexorably to the proclamation of unlimited parliamentary supremacy. This is widely, though with much exaggeration, conceived to be the major prop of authoritarian government. It is also, more correctly, seen as hostile to the idea of human rights possessed by persons against governments. In one sense, the decision to incorporate the European Convention on Human Rights into UK domestic law is an authoritative repudiation of the Diceyian heritage.

The author finds the English judicial style and technique more informative than the German and argues that German jurists, be they academic or practitioners, would derive some benefit by studying how the English judges craft their judgments. However, English judges would stand to benefit by looking at German substantive law and its techniques of keeping litigation under control.

The idea of a permanent international criminal court has been on the international agenda for much of this century. After World War I unsuccessful attempts were made to bring the German Emperor to trial before an international tribunal and, later, to try Turks responsible for the genocide of Armenians before a tribunal to be designated by the Allied Powers. In 1937, following the assassination in 1934 of King Alexander of Yugoslavia by Croatian nationalists in Marseilles, treaties were drafted to outlaw international terrorism and to provide for the trial of terrorists before an international tribunal, but states lost interest in this venture as war approached and no state ratified the treaty for an international criminal court and only one (India) ratified the treaty outlawing international terrorism. The establishment of the Nuremberg and Tokyo international military tribunals to try the principal leaders of the Nazi and Japanese regimes after World War II as a natural culmination of the pre-war debate over an international criminal court and set the scene for renewed attempts to create a permanent international criminal court.

The European Directive on Product Liability introduces a new regime of strict product liability to the member states of the Community. Those injured by products may recover by showing that the product is “defective,” i.e., that it “does not provide the safety which a person is entitled to expect. …” The advantage of this approach for the individual is that liability turns on the existence of a defect alone. Unlike the law of Negligence, no question of foresight of the danger, or of the precautions taken to avoid it, arises for consideration. Strict product liability depends on the condition of the product, not the fault of its maker or supplier.