In recent years the courts have been faced with the problem of deciding what status should be given to marriages that are celebrated outside the provisions of the Marriage Act 1949 yet believed to be valid by the parties to them. Some such marriages have been classified as non-marriages, while others have been saved by the application of the presumption in favour of marriage. The decisions are unsatisfactory for a number of reasons. It will be suggested that the concept of non-marriage should be confined to ceremonies that in no way purport to be marriages. The presumption in favour of marriage should also be limited to situations where there is a valid basis for presuming a marriage rather than being used to avoid dealing with the deficiencies of the law.

Legal doctrine has two aims: describing and systematising the law. The description of currently valid law within a given legal system is the most visible and, from a quantitative point of view, the most important task for legal doctrine. From a qualitative point of view, however, systematisation of the law is by far its most important task. Systematisation is the construction of a conceptual framework of the law, which is a necessary basis for any legal rule and for any legal reasoning. Systematisation presupposes a description of the rules, principles, concepts, etc, which are to be systematised. But description of the rules is impossible without the conceptual framework that the systematisation of the law offers. Even the law itself is based on this conceptual framework. Codifications, such as the Code Napoléon or the German Bürgerliches Gesetzbuch, were made possible because of the centuries-long preparatory work of legal doctrine.

While there is a central assumption that charities can be key implementers of Big Society ideals, this paper will consider whether there is compatibility between the political rhetoric of the Big Society and its delivery through the charitable sector. It will be maintained that, while much obvious synergy exists, there are inherent difficulties, at both the practical and theoretical level, for the large-scale involvement of charities and their volunteers in the delivery of the Big Society. At the practical level, it will be seen that some amendments to the legal framework, so as to accommodate the greater use of charities and volunteers within the Big Society, may need to be brought into effect. However, at the foundational level, an examination of the core characteristics of charities and their substantive legal principles reveals some more fundamental impediments to their fulfilling Big Society objectives laid out for them by government.

This paper examines the role of retributivism as a principled justification for punishment in the context of the judicial tariff judgments on Myra Hindley and Thompson and Venables. The paper examines the development of retributivist theory from the foundational premise of liberal individualism to its contemporary understanding as a communication of public censure. It is argued that, against the background of legal judgment on tariff issues, retributivism cannot be meaningful in itself. Determining the retributive requirements of justice necessarily involves the construction of a moral narrative made up of both retributivist (retrospective) and consequentialist (prospective) elements.

Strange events are occurring in the world of the jury. At a time when English confidence in the institution is on the ebb, a phenomenon evidenced both in the titles of recent jury studies - The Jury Under Attack and Taking Liberties- and in a steady stream of skeptical commentaries, it is reported that in Japan the Bar Federation is set to call for the restoration of jury trial, first introduced by a law of 1926 but suspended after an experimental period in 1942. Spain has a new Constitution that imposes a duty on the legislature to institute jury trial, an undertaking currently under examination by the Spanish Ministry of Justice. And in South Africa, recent calls for a more representative justice system have prompted the editor of the South African Law Journal, Professor Ellison Kahn, to devote a tetralogy of articles to consideration of the reintroduction of jury trial within that jurisdiction.

This article explores two questions. First, in adjudicating claims under the Human Rights Act 1998 (HRA), should the court defer to the executive or legislature on the ground that the latter two institutions possess superior expertise or information-gathering powers, when such expertise or powers fail to generate persuasive first-order reasons for the court? This article argues that rationality requires courts to defer on these second-order grounds of institutional capacity in situations of judicial uncertainty. Secondly, this article examines an underexplored question in the current literature: when is it justified for courts to consider the government as possessing second-order grounds of institutional capacity that warrant deference? It is argued that rational, impartial and open adjudication in the post-HRA era requires the government to prove its claims of superior institutional capacity, and courts to openly scrutinise such claims by considering a number of factors, including, crucially, the government institution's track record of expertise and credibility.

One of the most contested issues in UK public law is how to calibrate the appropriate intensity of proportionality review in human rights adjudication. Here, the challenge lies in formulating a theory of intensity of review that can both comply with the constitutional framework introduced by the Human Rights Act 1998 (‘HRA’) and accommodate courts' varying levels of competence in different areas of litigation. This paper attempts to sketch such a theory in two steps. First, it argues that to fulfil the constitutional expectations brought about by the HRA, a minimum rigour of proportionality review should be observed. This baseline consists of requiring the government to demonstrate to the courts by means of cogent and sufficient evidence that a rights-limiting measure satisfies the distinct stages of the proportionality test. Secondly, this paper highlights the ways in which compliance with this baseline can nonetheless accommodate the courts' varying levels of competence in different adjudicative contexts. In particular, courts can vary the intensity of review once the baseline level of review is reached and adjust the nature of the evidence required from the government.

This paper compares ‘property law’ and ‘family law’ approaches to the problems associated with people who share homes, and examines some of the reform suggestions recently made in this field. The differences between property and family approaches are highlighted by recent endeavours of the Law Commission of England and Wales to devise a specifically ‘property law’ response to home-sharing, and those differences lie at the root of many of the difficulties that the Law Commission encountered in developing its abandoned scheme. It is worthwhile identifying and reflecting on those differences in order to ascertain the sort of home-sharers' problems with which each legal regime can cope, and the sort of solution that each is able to offer.

Automated facial recognition (AFR) is perhaps the most controversial policing tool of the twenty-first century. Police forces in England and Wales, and beyond, are using facial recognition in various contexts, from evidence gathering to the identification and monitoring of criminal suspects. Despite uncertainty regarding its accuracy, and widespread concerns about its impact on human rights and broader social consequences, the rise of police facial recognition continues unabated by law. Both the Government and the domestic courts were satisfied that police use of this technology is regulated adequately by existing statutory provisions regulating the processing of data and police surveillance generally. That is, until the recent judgment of the Court of Appeal in R (Bridges) v Chief Constable of South Wales Police and Others [2020] EWCA Civ 1058, where it was held that the respondent's use of AFR was unlawful. This paper provides an analysis of AFR, reflecting on the outcome of that case and evaluates its nuanced findings. We suggest that the judgment leaves considerable room for police AFR to continue with only minor, piecemeal amendment to the legal framework. Drawing on comparative experience and relevant socio-legal scholarship, we argue that the relatively unfettered rise of police facial recognition in England and Wales illuminates deeper flaws in the domestic framework for fundamental human rights protection and adjudication, which create the conditions for authoritarian policing and surveillance to expand.

There are few other areas in family law where incongruence between the legal and social positions is as evident as that concerning parenthood. Recent cases involving lesbian couples and known sperm donors serve to highlight the increasing tension between the respective roles of biology, intention and functional parenting in the attribution of legal parental status. As both legislative and case-law developments have shown, intention is central in some circumstances, but not in others. The main claim of this paper is that this ad hoc approach leads to incoherent and unsatisfactory law: instead of striving to identify a status, what we are really looking to do is to identify the people who assume responsibility for a child. Drawing upon recent case-law, this paper explores how a conceptual reform of the law could result in a principled framework which would place formally recognised intention at the heart of parental status in order to reconnect legal duty with social reality for as many children and parents as possible. Moreover, it would ensure that parental status would not be dictated by the mode of conception of the child (natural or assisted). The analysis identifies the objectives of reform before proposing a new model which, while recognising the social importance of the biological parentage link, would reserve legal status for functional parenthood.

This paper examines the recent resurgence of interest in the legal biography among legal scholars. It argues that the legal biography has traditionally been treated with suspicion within the English law school due to ideological and methodological concerns about the intellectual validity and robustness of the form, and because of reservations about its true disciplinary province. Through a literary survey of legal biography, it claims a tension between intellectual and empirical approaches that parody the tension between the internal and external traditions in legal history. More recent biographies, however, have succeeded in bridging these divides and in demonstrating the potential value of legal biography in deepening our understanding of the human context of legal phenomena.

All the efforts of human reason tend to the elimination of [the other]. The other does not exist: such is rational faith, the incurable belief of human reason. Identity = reality, as if, in the end, everything must absolutely and necessarily be one and the same. But, the other refuses to disappear: it subsists, it persists; it is the hard bone on which reason breaks its teeth. [There is] what might be called the incurable otherness from which oneness must always suffer.

The idea of ‘collective memory’ features prominently in several disciplines but rarely in legal scholarship. Drawing on the work of Henri Bergson, Maurice Halbwachs and GWF Hegel, this paper seeks to present an account of collective memory that is relevant to discourse on law and policy. The paper uses the example of the policy response to the European sovereign debt crisis as a means of illustrating how collective memory of events in the distant past can shape individual behaviour and thinking. It argues that the current policy response can be explained, at least in part, by the influence on policy makers of the standard historical narrative of the Great Inflation of Weimar Germany. When, however, collective memory takes the form of Bergsonian ‘habit memory’, it can inhibit our efforts to resolve hard cases and the German government's opposition to the European Central Bank acting as a lender of last resort in the government bond markets neatly illustrates this point. If the debt crisis is to be managed effectively, policy makers must draw on Bergsonian ‘pure memory’ to explore the bounds of political and economic possibility.

The purpose of this paper is to examine a new work on legal reasoning by two American jurists whose aim is to ‘demystify’ it. The paper will not dispute the authors' central thesis that the existence of special forms of reasoning in law is false, but it will argue that a social science epistemologist would find their analysis at best inadequate. It will be argued that legal reasoning is not just reasoning from and about rules; it is also reasoning about facts and about the construction of factual situations. Consequently, it is vital for anyone wishing to have a serious understanding of how lawyers reason to have a familiarity with how social scientists, and indeed natural scientists, reason about fact. Such reasoning certainly involves induction, deduction and analogy but these methods are by no means adequate as an epistemological framework; schemes of intelligibility and paradigm orientations are equally important. If there is one paradigm orientation that is special to certain disciplines like theology and law, it is the authority paradigm, an orientation that must be distinguished from an inquiry paradigm. The problem with works by legal philosophers on legal reasoning is, it will be implied, that they are often conducted from within the authority paradigm and that this, in the end, prevents any demystification.

There are grounds for being optimistic about the future of legal education. Not least of these is that there is emerging a broad alliance, embracing a range of intellectual positions, which is increasingly outspoken in its criticism of the dominant vocationalism which characterises so much legal education. Neil McCormick has recently added his forceful voice to the criticism of the narrow and intellectually barren fetish of ‘learning the rules’ which constitutes the great bulk of the practice of law teaching. The context of MacCormick's advocacy of the virtues of a broad philosophical orientation in legal education was the publication of Barnett and Yach's survey of jurisprudence teaching in the United Kingdom.

The occasion of the publication of a survey of jurisprudence teaching in the law schools of the United Kingdom is a good occasion for reflecting upon the point of jurisprudence teaching in a law school. There are indeed other good occasions for such reflection, and in fact this paper was initially prepared for such an other occasion. By the invitation of the Editor, it now appears in this Journal in revised form as an outrider to Barnett and Yach's survey ofjurisprudence teaching in the United Kingdom.

One cannot but compliment the authors on the thoroughness of their survey work and on the richness of detail of their report. This comment will not seek to rival that richness.

Patient choice in the context of National Health Service (NHS) reforms in England can refer to the law and policy underpinning patient movement between the NHS and private healthcare sector (in existence since the introduction of the NHS in 1948), as well as recent competition reforms of the Health and Social Care Act 2012, the National Health Service (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 and the 2014 Private Healthcare Market Investigation by the Competition and Markets Authority (CMA). This paper highlights the existence of two discrete, yet related frameworks: the ‘NHS patient – private patient’ framework based on Department of Health, NHS England and latterly Clinical Commissioning Group policy, and the ‘NHS patient choice’ framework, derived from New Labour choice and competition policies and subsequently enshrined by the 2012 Act reforms. The juxtaposition of these frameworks underscores the symbiotic relationship between the NHS and private healthcare, which raises questions about the fitness for purpose of current policy. It also helps explain why the competition reforms are difficult to implement, and suggests that the knitting together of patient choice and competition may unravel following the 2012 Act reforms and CMA private healthcare market development.

The online publication of employment tribunal (ET) decisions in England, Wales and Scotland marks a watershed moment, opening up new innovative avenues for legal research, and promoting transparency in labour law decision-making. Drawing on this ‘dataset’, and using age discrimination decisions as a lens to facilitate analysis, this paper reflects on the advantages and limitations of using online ET decisions as a data source to support labour law research. By considering matters of time in age discrimination decisions – both in relation to time limits for bringing a claim, and ET delays – this paper uses innovative empirical findings to map the limits of the individual enforcement model adopted by discrimination laws, and illustrates some of the barriers to successfully bringing a claim for discrimination.

In this article we examine the issue of the standing of individuals and pressure groups in judicial review proceedings, with particular emphasis on standing in planning and environmental law litigation. We begin by developing a particular conception of liberalism to justify a broad, ‘citizen action’ model of standing. The article then proceeds to examine English domestic law on access to the courts against the background of this liberal model.

It is right to say at the outset that the choice of planning and environmental materials is not intended to point up issues in standing which are exclusive to that context. Instead, our purpose is to make some more general arguments about standing in public law and then, through an examination of case law in planning/environmental litigation–which features relatively frequently in the law reports–to test for coherence and contradiction in the judicial reasoning there encountered

The current law of resulting and constructive trusts and proprietary estoppel is acknowledged to provide uncertain and often unsatisfactory remedies to disputes concerning the allocation of property rights in the family home. This article reviews these inadequacies, particularly as they affect the growing numbers of cohabitants, and puts forward radical proposals for reform. It is argued that the special nature of the family home - where the parties' relationship is based on ‘trust and collaboration’ rather than commercial principles - requires reform which takes account of the broader contributions of both parties to the home and to the family in allocating property rights. The law should strive to treat all family homes in a consistent way, provide greater certainty of outcome, and yet do justice between the parties. A system of modified community property is therefore proposed. Broadly, this will provide a sliding scale of allocation of property rights over time for non-owner partners and a presumption of enhancement of the interest of the primary carer of children of the relationship. However, contracting out should be permitted; and a discretion to adjust the presumptive rights retained by the court where ‘manifest injustice’ is demonstrated.