Regulation as a legal form of social engineering has been subjected to much analysis in the last decade or so. The importance of the topic to contemporary law cannot be overstated: on the one hand, it has been the avowed aim of government to ‘deregulate’ industry; on the other hand, and paradoxically, both the concomitant policy of privatisation and the evolution towards a Single European Market have increased the need for regulation in appropriate areas. The efforts to explore the strengths and weaknesses of different regulatory forms have brought together scholars from a wide range of disciplines. Administrative lawyers have been concerned with how the power of decision-making is allocated between institutions and the general problems of accountability and control of discretion to which this gives rise. Socio-legal researchers have critically examined the practices of regulatory agencies as regards rule formulation and enforcement.

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.

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.

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.

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.

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.

Legal paternalism occurs when the law forces individuals to avoid certain risks (‘hard paternalism’), or, without coercion, nudges them away from such risks (‘soft paternalism’), on the ground that otherwise they will make unwise decisions. The questions when and how such approaches should be taken are of fundamental importance in a society in which there are increasing risks to health and livelihood resulting from technological developments and greater freedom of choice. However, they are not openly addressed in policy-making circles and have also been neglected in the European legal literature. In this paper, I attempt to explain these paradoxes and to outline a theoretical benefit–cost framework for determining when and how legal paternalism might be considered appropriate.

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.

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 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.

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 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.

In this paper, we set out what it means to offer a ‘biography’ of a law, illustrating the discussion through the example of the Abortion Act (1967), an important statute that has regulated a highly controversial field of practice for five decades. Biography is taken as a useful shorthand for an approach which requires simultaneous attention to continuity and change in the historical study of a law's life. It takes seriously the insight that written norms are rooted in the past, enshrining a certain set of historically contingent values and practices, yet that – as linguistic structures that can impact on the world only through acts of interpretation – they are simultaneously constantly evolving. It acknowledges the complex, ongoing co-constitution of law and the contexts within which it operates, recognising that understanding how law works requires historical, empirical study. Finally, it suggests that consideration of a law can offer a unique window through which to explore these broader contexts.

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.

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 norm in fitness to practise proceedings (FTPP) is that where sanctions might be imposed procedural fairness requires a court-like hearing. This paper questions that paradigm, using empirical research to focus on the FTPP to which social workers must account. Procedural fairness is a multi-faceted legitimising concept used to justify the design of decision-making processes. With FTPPs, the major justification is an ‘instrumentally’ focused model of procedural fairness which prioritises making decisions that look right, a goal which is delivered in the context of social work. But other justifications for procedural fairness are inadequately fulfilled, with in particular a ‘dignitarian’ respect not achieved due to the high levels of non-attendance by registrant social workers. Further, procedural fairness as ‘public accountability’ is undermined due to the relative lack of engagement of FTPPs with the perspective of the social work community. These findings hint that in the context of a poorly organised and resource-poor profession other hybrid forms of FTPP might have a stronger claim to procedural fairness than the court-like model.

It was not within the terms of reference of the Royal Commission on Legal Services to bring under review either procedure or the administration of justice. Nevertheless, the Commission received so much evidence on these subjects that it saw fit to publish a summary of that evidence and to recommend that ‘a full appraisal of procedure and the operation in practice of our system of justice, in particular in all civil courts’ should be carried out. Since then, the Committee on Procedure and Practice in the Chancery Division has reported, its recommendations have been largely implemented, and numerous changes of practice in the High Court and the Court of Appeal have been introduced by rule of court and practice direction.

Sexual harassment is persistent, prevalent and under-reported in Australian workplaces despite its legal regulation over many decades. The most recent survey data in Australia indicate that the majority of individuals who are subject to sexual harassment at work do not make a formal report or lodge a complaint. The opportunity for voice that organisational processes provide to those who experience sexual harassment at work is a particular focus, given the under-reporting problem. The paper also considers the impact of organisational processes on those who observe the inappropriate behaviour and/or the organisational response. Ultimately, this paper argues that organisations should reduce their reliance on individual complaints by expanding the pathways by which concerns can be raised or observed behaviours addressed that offer alternative voice mechanisms, with an emphasis on problem-solving and early intervention where this is appropriate. The paper also considers different communications strategies, such as approaches to training, the sharing of information about workplace incidents, and leadership on the issue within organisations.