‘Whatever the future of the subject, the content of the present courses suggests that jurisprudence has a capacity for self-renewal and an elasticity which enables it to interpret ideas from philosophy and the social sciences to law students in a way which stresses their modern relevance to the social and theoretical problems which an intelligent and critical study of law should suggest.’ So concludes the last survey of jurisprudence teaching in British universities carried out in 1972/73 by Cotterrell and Woodliffe. To what extent could their sentiments be echoed in 1983/84?

Ten years have elapsed since the previous survey was completed during which time important changes have occurred in legal education and its environment.

There is increasing support in the contract literature for the view that the remoteness rule is essentially concerned with identifying an implicit allocation of risk made by the contracting parties. This paper argues that the remoteness doctrine is more accurately seen as a method by which the courts allocate risks which the contracting parties have failed to allocate, rather than an interpretative rule. Through analysis of the principles and their application in the recent case-law in England, Canada and Australia, the paper shows that the identification of an implicit allocation of risk does not and cannot determine remoteness cases in contract. The justice of the remoteness rule is not based on the notion that the defendant undertook responsibility for the risk in question, but on a concern that the defendant should have a reasonable opportunity to consider the risks that might arise from breach and take action to avoid them.

The reform of the common law ‘derivative action’, by the statutory ‘derivative claim’ in Pt 11 of the Companies Act 2006, was long overdue. Many of the common law's most intractable problems, however, lay not with the derivative action itself, but rather with the law governing the ratification of breaches of duty. The source of many of these problems lay in the distinction the law sought to draw between fraudulent and non-fraudulent breaches, and the different consequences attached to each category of wrongdoing. The Companies Act 2006 was a timely opportunity at least to resolve the confusion within the law, and ideally to adopt what has been termed a ‘voting based’ approach to ratification. Sadly, the Act did neither, preferring instead to retain the common law largely untouched. Moreover, as a careful analysis of the Act itself shows, the modest changes it did introduce necessarily preserve the common law's distinction between fraud and non-fraud, and the uncertainty to which this gives rise. The paper concludes with an examination of Franbar Holdings v Patel, which illustrates clearly the shortcomings in the law's limited reforms.

This article examines the steps taken in recent years to mainstream equality issues into the law and policy process in Ireland. Although official discourse increasingly recognises the need to tackle inequality and social exclusion, there is little to suggest that the mainstreaming process has been a transformative one. A reluctance to move beyond established legal categories or to radically challenge law and policy-making processes has greatly restricted the potential for reform. If mainstreaming is to be effective, the pursuit of equality must be recognised as a core norm guiding all aspects of law and policy making. In the Good Friday Agreement the Irish government committed itself to promoting equality in all social and economic activity and to demonstrating its respect for the diverse identities and traditions on the island of Ireland. Much work remains to be done if this commitment is to be fulfilled.

An initial reading of EU competition law jurisprudence and literature may suggest that there might be a competition-related freedom in the EU, expressed along the lines of ‘freedom of competition’ or ‘freedom to compete’. If competition is to be protected as a ‘freedom’ rather than merely as a ‘policy’, what this freedom involves should be established. It is important to establish the role of ‘freedom’, since it has been argued that EU competition law is a product of or has been significantly influenced by ‘ordoliberalism’. Under ordoliberalism, protecting the ‘economic freedom’ of market actors is the aim of competition policy. This paper examines the entire jurisprudence of the EU Courts to establish the role of ‘freedom’ in EU competition law as perceived by the EU Courts. This inquiry establishes whether ordoliberalism has so fundamentally influenced the jurisprudence that welfare-based objectives cannot be adopted as an/the objective of EU competition law. This is the first such comprehensive study regarding ‘freedom’ in EU competition law. The paper demonstrates that there is little quantitative or qualitative support for the ordoliberal argument when one considers the relevant jurisprudence. A quantitative analysis of the case-law and in particular the historical trend raises serious doubts concerning the validity of the conventional ordoliberal-influence thesis.

The aim of this paper is to reframe the taxonomy debate which has, in recent years, come to dominate private law theory. We argue that the debate to date has been flawed by two fundamental mistakes. First, little attention has been paid to how legal taxonomies are actually used. This, we argue, is regrettable: how we build a taxonomy depends on why we build a taxonomy, and a clearer focus on this question produces an approach that is very different from the approaches that currently dominate private law theory. Secondly, both sides in the debate have misunderstood what legal concepts are, and hence tend to misuse them. We argue that legal concepts are Weberian ideal types, and use philosophical theories of concepts to put forward a very different understanding of how concepts acquire content and are used in the legal system. Putting these together, we argue for a far more developmental, and historically informed, approach to taxonomy and to legal concepts generally.

Although sex education lessons have been provided in our schools for many years, concerns about the sexual health and practices of the nation's youth remain centre stage. In recent years, a number of initiatives have been introduced, with varying degrees of success, to increase young people's awareness of sexual matters and to reduce the high number of unplanned teenage pregnancies. One particularly controversial idea is that parents should be divested of the right to withdraw their children from sex education classes. In this paper, I consider the implications of this proposal, paying special attention to the response of those conservative religious organisations most likely to oppose it. My central thesis is that, while the state should be careful not to ride rough-shod over the wishes of parents in what is an extremely emotive area, the interests of the child are paramount and all young people in maintained secondary schools should have access to comprehensive sex education programmes.

Research into alternative sources of organs for transplantation, including the use of organs from non-human genetically engineered animals, has occurred since the introduction of allotransplantation in the 1960s. Xenotransplantation is different from other developing genetic technologies because whilst the potential benefit is to the individual, the possible risks are to society as a whole. The risks include the transmission of unknown and currently indeterminable infectious diseases. This article explores whether the current regulator framework is able to address this issue and, in particular, whether ‘first-party’ consent to involvement in a clinical trial is a sufficient to protect third parties from harm. The competence of a xeno-recipient to consent is also considered, and it is suggested that, at the very least, public debate and participation in deciding whether clinical trials should be permitted must occur, because by allowing xenotransplant trials to help an individual, the risks will be borne by all.

Harmonisation and legal convergence are core tasks of the EU. This paper explores the question about the determinants for national convergence of EU law, specifically applied to the ever-growing body of European consumer sales law. The measurement of national convergence is based on a unique coding of five directives in seven Member States. Using the fuzzy-set Qualitative Comparative Analysis (fsQCA) method, the paper finds that differences in national convergence can partly be explained by favourable features of the corresponding directives; however, mainly, they are the result of a combination of domestic political factors and, to a lesser extent, the country characteristics. This has important policy implications, for instance, on the need to ‘bring in politics’ in the debate about convergence, harmonisation and consumer sales law.

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.

Part I of the Prosecution of Offences Act 1985 has established a Crown Prosecution Service for the whole of England and Wales. The Service is, inter alia, responsible for the conduct of all police prosecutions (except minor motoring matters) following the institution of proceedings by the police. Police officers no longer present their own cases in court, but the new Service is not intended merely to replace them with professional advocates. The White Paper on which the Act is based declared that an independent prosecution service should be established. This was in order to give crown prosecutors complete freedom to veto, or to modify, the initial decison of the police to prosecute.

Shareholder say-on-pay voting allows institutional investors to influence the incentives of managers and, consequently, corporate behaviour. Surprisingly, the preferences of investors on executive compensation have been largely overlooked in the ongoing debates on the role of say-on-pay in corporate governance and the impact of shareholder stewardship on sustainable corporate behaviour. The analysis of investor disclosed explanations of say-on-pay votes in the FTSE 100 companies during 2013–2021 shows that institutional investors rely repeatedly on several dominant themes aimed at improving the incentives of corporate managers and controlling managerial rent extraction. But shareholder interests remain the core focus of say-on-pay votes, with only few investors demanding that companies reward executive directors for protecting the interests of a broader range of affected stakeholders. Additionally, most investors can be grouped into several clusters formed around the voting recommendations of proxy advisers. A group of UK-based institutional investors stands out by taking a more individualistic and diverse approach to the stewardship of executive compensation. These findings highlight the role of local investors in the oversight of executive pay, the growing influence of proxy advisers along with the increasing share of foreign institutional investors, and the influence of best practice governance codes in driving investor stewardship preferences.

In this paper we outline and critique legal approaches to poor mental health at work in the UK. We argue that the current legal framework is not ‘fit for purpose’. Overall, the existing framework promotes a problematic model that is ineffective because each element, individually and as part of the whole, fails to adequately engage with the nuanced realities of the relationship between undertaking paid work and suffering poor mental health. It is, we suggest, disjointed because it has evolved from a patchwork of provisions, each with different foundations, motivations, ambitions and flaws. The need for a re-focus, and what this might entail, is considered, and the capacity of a model centred on addressing workplace mental health as a manifestation of broader notions of vulnerability is explored.

‘We are here as on a darkling plain
Swept with confused alarms of struggle and flight,
Where ignorant armies clash by night.’
Matthew Arnold

It is said of statistics that what they reveal is interesting, but what they hide is crucial. Much the same can be said of the present British debate over constitutional change and the courts. The various constitutional reforms proposed seem to be obvious and long overdue - abolishing the post of Lord Chancellor; setting up a Supreme Court separate from the House of Lords; and establishing a judicial appointments committee. However, at least as presented and dealt with by the government and the judges, while these innovations are interesting and generally positive, what they fail to mention or address is much more crucial and revealing.

The 1844 decision of the House of Lords in R v Millis – which apparently held that the presence of an episcopally ordained minister had been necessary to create a valid marriage even before legislation was introduced to regulate the formation of marriage – has universally been regarded as erroneous by generations of scholars. This paper shows that the outcome of the case was in fact correct, even though the reasoning of all but one of the judges was flawed. It explains why the case has been misunderstood, and why the misunderstandings it demonstrated have never been corrected.

Corporate governance best practice now includes the requirement for a board to ensure that the system of internal control is effective in managing risks in the manner which it has approved. The Turnbull Guidance on this matter is ‘based on the adoption by a company's board of a risk-based approach to establishing a sound system of internal control and reviewing its effectiveness’. This involves the identification and prioritising of risks and embedding the risk management approach in the culture and processes of the business. This article explores the use of risk assessment in the law, particularly as it applies to the activities of companies. It is suggested that a concentration on, and perhaps a spurious quantification of, risk could mask the difficulty of making board-level decisions under conditions of true or Knightian uncertainty. Knight maintained that true uncertainty was something distinctly not of the character of risk. It occurs when ‘. . . there is no possibility of forming in any way groups of instances of sufficient homogeneity to make possible a quantitative determination of true probability. Business decisions, for example, deal with situations which are far too unique, generally speaking, for any sort of statistical tabulation to have any value for guidance. The concept of objectively measurable probability or chance is simply inapplicable’.

This paper drawls on the experience of the authors during a TACIS project in Russia. Part of the project involved assisting Russian legal experts in drafting a law on the reorganisation of companies. The methodology adopted was split into three stages: identification of the concepts of reorganisation in different jurisdictions, the policy and economic context of the proposed reform and examination of the institutional background. At each of these stages it was necessary to discover the underlying cultural, economic and philosophical issues which were formative of laws in each of the five jurisdictions that were examined and offer a menu of possible solutions to the risk-balancing exercise which this area of law presents.

A rule of English law is that, where a contract comprises promises that are independent of each other, neither party is entitled to rescind the contract for failure by the other to perform. This paper illuminates the rule by examining various versions of the independent/dependent distinction. On one account, it concerns the reason why someone gives a promise; on others, it concerns the conditionality of a promise. The account in terms of reasons conflicts with the doctrines of offer and acceptance and of consideration. All the conditional accounts provide a justification for the rule, but certain of them — in terms of external conditionality — unduly limit the availability of rescission. The others — in terms of internal conditionality — are therefore proposed. Assuming that an agreement is likewise modelled in terms of internal conditionality, one promise's being independent of another, where ‘independent’ is defined as proposed, is inconsistent with their constituting an agreement. The rule on rescission presupposes, however, that some independent promises constitute a contract. So this is a new reason to hold that, just as not all agreements are contracts, so not all contracts are agreements.

This paper argues that comparative law should become a core subject in all law degree programmes. By ‘core’ is meant a progression subject that will take the student through a three-year programme emphasising not what the law is but how one should think like a lawyer. Comparative law is ideal for this task because it emphasises two fundamental questions: what is ‘comparison’? And what is ‘law’? The paper demonstrates, first, how the rule model of legal knowledge is inadequate when it comes to comparing law and, second, how the techniques of comparison can reveal this inadequacy. These demonstrations are primarily founded upon a distinction, explained in the paper, between symbolic and non-symbolic knowledge.

The article by Jenny McEwan and St. John Robilliard ((1981) 1 LS 267) is entitled ‘Recklessness’, but the argument makes it plain that the authors not only are staunch supporters of the extended meaning now given by the House of Lords (under the leadership of Lord Diplock) to the notion of recklessness, but give their approval also to the extended meaning that Lord Diplock would like to give to the notion of intention. While most of those who are concerned with the criminal law would now like to see its severity alleviated, if only to reduce the pressure on the prisons, Lord Diplock and his two academic allies want to notch criminal liability up a degree (or to keep it notched up) in two respects. They want foresight of probability without purpose to be placed or kept within the notion of intention (instead of within the notion of recklessness), and they want part of inadvertent negligence to be placed or kept within the notion of recklessness (instead of within the notion of negligence).