In recent years various developments in the system of trial by jury in England and Wales have given rise to comment and concern. One such development was the abolition by s. 13 of the Criminal Justice Act 1967 of the rule, said to have existed for over 600 years, that a jury must be unanimous in order to reach a verdict. These provisions are now contained in s. 17 of the Juries Act 1974 which allows for majority verdicts where there are no more than two dissentient voices to be returned under certain circumstances. The change in the unanimity rule has been criticised as striking at the root of the principle of proof of guilt beyond reasonable doubt and has been interpreted by some as being the first step on the slippery slope to jury verdicts by simple majority, a development which would do even more to undermine the principle of proof beyond reasonable doubt and might also lead to the complete abolition of trial by jury.

The late Professor Birks made an immense contribution to the study and development of the common law in devising his taxonomy, derived from the Roman classification of Justinian's Institutes. The utility of the taxonomy has always been the subject of controversy and its value has been increasingly questioned since his untimely death. Some of the criticisms are undoubtedly valid but it is seriously arguable that the pendulum has swung too far in the other direction. This paper seeks to highlight the common abuses of the taxonomy and demonstrate that, even taking account of its limitations, the taxonomy continues to be a useful device for our study and development of the common law.

This paper seeks to explore copyright from the perspective of John Rawls's egalitarian conception of justice. It first evaluates the classical theories for copyright. Next, it examines Rawls's principles of justice with particular emphasis on the difference principle. Then, it applies Rawls to the design of copyright law and debates on two doctrines of copyright law – namely the idea/expression dichotomy and the relevance of the merit of a work for copyright. The significance of the debate is to show that Rawls's perspective on justice offers a better justification for copyright and its principles and would potentially induce better justice.

This paper examines the role to be played by the devolved administrations in the negotiation, conclusion and implementation of trade agreements concluded by the UK post-Brexit. By examining, from a comparative perspective, examples of collaborative frameworks between sub-national entities and central governments established in federal jurisdictions, it proposes a significant reform of existing inter-governmental cooperation mechanisms to ensure that the devolved administrations are given a meaningful voice in the shaping of future trade agreements.

In the criminal law it is common to distinguish between motive and intention. One of the main reasons for so doing is that in criminal law we are concerned with the wrongfulness of an action in itself and not the agent's own moral evaluation of that action. For this reason, intention has become central to assessing criminal liability. But a similar problem arises with regard to the term intention. This is because whether or not an agent intends a particular consequence depends upon whether or not it was one of the reasons (that is, explanatory reasons) for which she acted. However, we ought to be interested in the reasons that actually applied to those actions (guiding reasons). Hence, the concept of oblique intention applies where the agent realised that a harmful consequence of her action was virtually certain even though it was not a reason for her action. Some writers suggest that this problem can be solved by including consequences brought about intentionally as well as intended consequences within the concept of intention. And this, they argue, is because the use of the adverb is (either conceptually or causally) related to our moral evaluation of an action. In this essay I show that this is not so. The concept of intention is wholly descriptive. Consequently, we require a suitable supplement or alternative to the concept of intention to reflect the highest degree of moral responsibility for the harmful consequences of our actions.

Defamation law offers a unique view of society and the changes it undergoes. When a claim of reputational injury is made, the case exposes the prejudices alive in the particular society at hand; and when the law deems a claim actionable, it recognises and, at some level, lends credence to the prejudices held. The case of Youssoupoff v Metro-Goldwyn Mayer is a case in point. The claim by Princess Youssoupoff in 1934 that an imputation of rape or seduction is libelous reveals underlying currents in English society at the time as to class, nation and gender. The judicial recognition of the claim, and the legal and extra- legal reactions to the claim at the time and since, further raise for examination the relationship between law and morality: to be recognised as defamatory, must an allegation impute immorality to the plaintiff? Should the law of defamation recognise societal prejudices that are real, even if deemed by lawmakers and the judiciary invalid? Is it the function of the law to mirror the society in which it is produced or to carry it forward?

The Unfair Contract Terms Act 1977 may lead to considerable forced change in a contract. In some cases a contract term can be rendered automatically ineffective and in others a term can become ineffective unless it satisfies the requirement of reasonableness. Obviously the boundaries of such powerful provisions are of great significance and, for the most part, the sections which produce those effects are stated to apply to terms which ‘exclude or restrict liability.

Before Odysseus navigates the rocks on which live Scylla and Charybdis he is lulled by the Sirens, promising advance disclosure of earthly adventures. Forewarned by Circe, he enjoins his crew first to contain him; later (on pain of death) to release him from the mast to which he is bound. Held to his originally expressed wishes, they refuse, and bind him more tightly. In this way, Odysseus creates what may have been one of the first advance directives. Its enforcement illustrates one of the concerns which have latterly been expressed about making binding health care choices, possibly many years before they might take effect

‘People do not always mean what they say; they do not always say what they want; and they do not always want what they say they want. That much is, if not exactly clear, at least uncontroversial. What is controversial is, recognizing this, how to proceed.’

A legislative package which transformed the landscape of Australian administrative law during the last decade by invigorating prosaic models of judicial review, has attracted attention throughout the Commonwealth as ‘an awesome leap’. A burgeoning bureaucracy, whose commitment to legal norms is all too often diluted by excessive zeal in the pursuit of administrative goals, and the perceived inadequacy of conventional restraints including legislative scrutiny, the supervisory jurisdiction of regular courts and internal checks operating at different levels of the executive hierarchy, have heralded bold, innovative approaches.

In this article we argue that the House of Lords recently erred severely by failing to apply the Human Rights Act 1998 retrospectively, and that the appropriate remedy is to deploy the 1966 ‘Practice Statement’. We describe how the House has made a number of basic mistakes in interpreting the literal meaning of the Act. These errors are partly explained by the court's reliance upon a general presumption that law should not be applied retrospectively. We argue that human rights legislation is a necessary exception to this rule. We maintain this for philosophical reasons, but also contend that s 3(1) of the Human Rights Act reverses the presumption against retrospectivity and requires a new presumption that human rights should be given effect whenever it is possible to do so. This is a vital issue because s 3(1) is one of the most important provisions in the UK constitution.

This essay offers a survey and analysis of the principal methodologies adopted and the aims pursued by ‘modern’ historians of the common law in England, Canada, and America, from Blackstone's time to the opening of the twenty-first century. From the beginning of this period through to the 1950s, the analysis reveals a steady current of contention amongst legal historians in respect of what legal history could do and just how these aims might be realised. The post-1950s era is characterised by the accelerating influence of the methodologies and objectives of extra-legal disciplines. These include, most especially, the work and techniques of social and political historians, and, eventually, the various manifestations of the postmodernist challenge to the segregation of ‘objective’ historical interpretation from the polemical and creative reconstruction of the past. It is argued that the infusion of this methodological new blood has been largely beneficial, enhancing the reach and subtlety of legal historiography, and boosting its overall capacity to act as an intellectually enriching discipline.

The ‘rights’, if any, which belong to trade union members who refuse to participate in industrial action have been the subject of debate and controversy recently. A number of factors account for this. The first is the legal action maintained by members of the National Union of Mineworkers who refused to participate in the recent industrial action in the coalfields. Secondly, recent debates over the wisdom of introducing a ‘positive’ right to strike in place of the existing system of ‘immunities’ have, as Lord Wedderburn has remarked, ‘opened up… the prospect of a prohibition on unions disciplining members who refuse to strike, on the basis of the fallacy that a positive ‘‘right to strike’’ implies the negative ‘‘right not to strike’’’.

Whereas it was before dispersed and hidden, Goff and Jones have brought Restitution together and made it prominent. Lacking the generations of textbooks which have organised other subjects, its case law will for many years attract debate as to how best it should be arranged and how it relates to other categories. Many writers think that the key is to be found in the ideas and language of unjust enrichment. But the lock does not immediately turn. Hedley's paper says that it will not. Indeed he thinks that any hope of an elegant theory, or, which may be the same thing, an integrated and economical classification, is vain, since Restitution is more various, empirical, and endemically muddled than the unjust enrichment camp dares to admit. His paper valuably compels a re-examination of fundamental questions.

To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law.

In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.