The proprietary status of the contractual licence has long been a matter of dispute. In Arnold v Ashbum–Anstult the obiter remarks of Fox LJ signalled a return to orthodoxy in this area of the law. Unless a contractual licence can be supported by facts sufficient to support a constructive trust (and these, too, were restrictively defined by Fox LJ), it will not bind third parties. However, Fox W did not discuss rights over land arising by way of estoppel ( ‘estoppel rights’). The proposition that these can bind third parties has never attracted the controversy that surrounded the proprietary status of contractual licences. Nonetheless, due to the potential overlap between the two types of licence, it is a proposition that needs urgent re-evaluation in the light of Fox W’s views on contractual licences.

This paper is concerned with one hundred and ten years of legal history. It is a success story. Yet it has, not an unhappy ending, for the end is in the future, but an unhappy present. Markers put down in 1883 and 1983 define the century. The change in question is the modernization of the literature of common law and hence of all the machinery of its interpretative development. Having been kept in shape first by the forms of action and then by a hardening of the doctrine of precedent, in the late nineteenth century the growing mass of case law urgently required to be more rationally ordered and explained. It began to find in the universities the means of achieving that improvement. Analysis, definition and classification, the familiar tools of the university, were brought to bear for the first time on the raw materials of the common law.

Over the years, the genius of the common law lay in its ability to adapt old laws to new circumstances, to remake itself in a new image which reflected the concerns and needs of the time. In this century much of our thinking about the law of torts has been shaped by the tort of negligence, which has been the paradigm of adaptability. Although it was Lord Atkin’s speech in Donoghue v Stevenson that provided the central unifying principle for the subsequent development of the tort, it was Lord Macmillan’s famous dictum that the categories of negligence are never closed which provided much of the driving force for those developments. Liability in negligence shifts the focus of the courts’ attention away from the nature of the plaintiffs interest that has been infringed to the nature of the defendant’s conduct. Once attention moved from the deed itself to the manner of its commission, it gradually became possible for the tort of negligence to seep into almost any arena. The opportunities for human error are manifold, and as the old immunities were removed new areas of liability were established.

The House of Lords’ decision in Derbyshire County Council v Times Newspapers Ltd has been widely welcomed as a long overdue development in the common law’s treatment of free speech issues. Eric Barendt interprets the judgment as a judicial recognition of free speech as a ‘quasi-constitutional’ right. In a more exoteric vein, a major article in the Observer bracketed the case with Factortame, Pepper v Hart, and Woolwich Building Society v Inland Revenue in suggesting that an increasingly liberal-minded judiciary was fashioning a ‘silent revolution’ against orthodox principles of Parliamentary Sovereignty.

The national courts of the European Community are faced with a formidable task. On the one hand, judges are appointed and operate within their own domestic legal order, and derive their authority from their national constitutions. On the other hand, with the advent of the Community and the development of the doctrines of direct effect and supremacy, they have acquired a Community mantle and are responsible for the implementation of directly effective Community rights within the national realm. This paper examines how the role of the national courts has been created, what basis exists for it in the Treaty and the theoretical underpinnings of the role. In short, why are the national judiciary also Community judges: and to what extent can they be truly so?

Corporate law — both in the UK and US — remains preoccupied with the separation of ownership and control. Share ownership, the story runs, has become so dispersed in the larger company that control of its affairs has passed from shareholders to managers. It is assumed that managers will have interests which conflict with those of shareholders and will use their control to further the former at the expense of the latter. The orthodox response has been to stress the paramountcy of shareholder interests and to seek ways of compelling management to advance those interests in preference to their own. The urgency with which these prescriptions for company law have been pursued has rather fluctuated, depending upon the wider economic and political climate within which companies operate. Thus, the take-over activity of the late 1980’s created its own excesses, as in the Guinness affair. The subsequent recession, with its effect on profits, caused further strain, exacerbated by rises in executives’ pay and generous severance awards at times unrelated to the companies’ own financial performance. A number of substantial corporate failures or controversies have provided a further impetus.

For many women, the abuse of power in the form of physical and emotional battering by their so-called ‘partners’ is a fact of life. Individual women feel the pain, the humiliation, the fear and the anger. But the debate about how legally we should respond to a woman who finally kills her abuser is significant beyond the individual. Whatever the predicament of women such as Sara Thornton, or Kiranjit Ahluwalia, sentenced to life imprisonment and forced to scale seemingly impossible obstacles in the appeal process, the exponential rise in literature on this subject is quite disproportionate to the number and increase (if any) in such cases. The real significance of the ‘self-defence for battered women’ movement lies less in these concrete examples and more in its metaphorical role as witness to the social reality of the abuse of women.