This article argues that the express trust should be understood as a species of obligation rather than as a means of organising the ownership of property. Two propositions seem fundamental to the traditional understanding of the trust as an aspect of property law. Firstly, in the nature of the trust, there must be a separation of legal and beneficial ownership. Secondly, there must be trust property. Neither is necessarily true. With many discretionary trusts and other recognised types of express trust it is impossible to locate the beneficial estate. Furthermore, the requirement for there to be trust property is, on closer analysis, a requirement of certainty of obligation in relation to specific subject-matter within which the trust property can be located.

The article explores the implications of understanding the trust as a species of obligation. It allows all express trusts, including charitable trusts, to be explained as resting on the same fundamental concepts. The trust in the common law world may still be distinguished from contract and from the civil law forms of the trust. This new conceptualisation also illuminates what is the irreducible core content of the trust. The article concludes with a new definition of the express trust.

A decade ago the conflict between George Ward, proprietor of Grunwick Processing, and the Association of Professional, Executive Clerical and Computer Staff (APEX) provided a platform for an extended debate about the role of the law in industrial relations, the right of employers to refuse to recognise trade unions for collective bargaining purposes and, in particular, the efficacy of legislation as a means of promoting such recognition. In 1986 the decision to move the printing of various newspapers within the News International Group (the chairman of which is Mr. Rupert Murdoch) from Fleet Street to a new purpose-built printing plant at Wapping in London's docklands occasioned another set-piece battle between labour and a strong-minded employer. The issues and the climate of industrial relations in which the dispute took place are very different but, like Grunwick, the Wapping dispute provides rich material for all interested in how the law can be used as part of the strategy of industrial conflict.

Gain-Based remedies are now often characterised as either “restitution” or “disgorgement”. Restitution is the giving back of wealth received by a defendant from a claimant, which must be given back or restored because it amounts to an unjust enrichment at the claimant’s expense. Disgorgement is the giving up to a claimant of a gain made by a defendant, as a consequence of a wrongdoing committed against the claimant, but received from a third party. This dichotomy presents a difficult problem: what happens if a defendant, who is liable only in unjust enrichment and not in wrongdoing, makes a gain causally related to the unjust enrichment but by receipt from a third party? An answer to this question has important consequences for the coherence of an independent claim in unjust enrichment.

Before the dawn of the millennium new legislative and executive authorities will have been established in Edinburgh, Cardiff and (subject to further political and other progress) in Belfast. This article analyses the nature of these constitutional initiatives, and examines their place in the unitary state which is the United Kingdom. It begins by tracing the history of constitutional union between England, Wales, Scotland, and Ireland. The legal effect of the 1998 devolution statutes is examined, in particular on the legal sovereignty of the United Kingdom Parliament. A triple constitutional and legal lock exists in the Scotland Act 1998 to ensure that the devolution settlement is the final step away from the pure unitary state which has enfolded Scotland in Great Britain. The nature and likely success of that lock are analysed in some detail. The lawmaking powers of the Scottish Parliament, the Welsh Assembly, and the Northern Ireland Assembly are assessed. The similarities and differences between each of the three devolved governments and the British Government are highlighted, and consequences and possible lessons for future government-making at Westminster are drawn. The article concludes with a peer into the possible constitutional futures for the United Kingdom.

Everybody knows how Rabelais dumbfounded, ere they had yet found time to speak out, those unruly spirits who would not trust his account of the miraculous nativity of the horrific Gargantua. Pourquoy ne le croiriez vous? he exclaimed. Pour ce, dictes vous, qu'il n'y a nulle apparence. Je vous dicz que pour ceste seule cause vous le debvez croire en foy parfaicte. Car les Sorbonistes disent que foy est argument des choses de nulle apparence. Fortunately enough, modern interpolationists have not yet made use of this argument. And it is still possible, there-fore, to put in a word for some good classical texts and concepts which we are asked to regard as the miraculous offspring of the horrific Tribonian.

What is it to make a promise? What its conceptual ingredients? How do promises compare with other statements? How exactly do they relate to agreements or basic contract theory? These, broadly, are the major, if not quite the only, questions we shall here try to elucidate.

THE relation of war to the international system was stated by W. E. Hall in a well-known passage of his treatise in these words: ‘International law has no alternative but to accept war, independently of the justice of its origin, as a relation which the parties to it may set up if they choose, and to busy itself only in regulating the effects of the relation.’ This view, which came to be more or less generally accepted by international lawyers in the course of the nineteenth century, marked the definite abandonment of the claim of the classical jurists to distinguish between bellum iustum, and bellum iniustum, and it was in a sense an admission that international law had so far failed in the primary task of all legal systems, that of establishing and maintaining a distinction between the legal and the illegal use of force. But it had the great merit of candour, and it brought the theory of the law into accord with what had always been and still remained the facts of international practice.

It has been suggested in this article that every shareholder does have a right to have all the provisions of the company contract enforced, but that this right is not an absolute one, and cannot be considered in isolation. For a more complete appreciation of the picture this right must be viewed in a context where the company contract constitutes the framework of a long-term relationship between the contracting parties. Thus we need to take into account the equally valid rights of the other shareholders to enforce conflicting provisions of this contract, to change those provisions, and to condone or regularise breaches of those provisions relating, inter alia, to the rules of internal procedure. We need also to consider the machinery provided by company law for the resolution of disputes concerning these conflicting rights, machinery which includes reference of the dispute to the decision of the majority, where it is appropriate to do so. Finally, it must be borne in mind that one of the aims of providing such machinery is the preservation of the long-term relationship between the participants in the company. It is only be considering such factors as these that the relative, rather than absolute, nature of any one shareholder's right to enforce the company contract can be truly understood.

The widespread commercial planting of genetically modified crops has yet to be sanctioned in Europe, but cannot be far away. This is a prospect that arouses considerable public concern as to both the health and environmental implications of genetically modified organisms (“GMOs”). The application of biotechnology in the development of new agricultural products raises major concerns not only for environmental protection, however, but also for the potential role of liability regimes in the allocation and protection of property rights. In the European Union, a regulatory framework for field trials and the commercial exploitation of GM crops was introduced at a relatively early stage in the development of agricultural biotechnology. The Directives on the Deliberate Release into the Environment of Genetically Modified Organisms and on the Contained Use of genetically modified microorganisms1 require technocratic authorisation processes based on a scientific risk assessment of GM releases.

The litigation in Metall und Rohstoff A.G. v. Donaldson Lufkin & Jenrette Inc. appeared to herald a much-needed review by the House of Lords of the torts of conspiracy to injure by lawful and unlawful means. Since that will not now take place, the law will for the present remain as the Court of Appeal in Metall und Rohstoff has interpreted the decision of the House of Lords in Lonrho Ltd v. Shell Petroleum Co. Ltd. (No. 2). The purpose of this article is to argue that there is an important division in principle between the tort of conspiracy to injure another by lawful means and the tort of conspiracy to injure by unlawful means, and that the rules governing liability for the former tort should be different from, and more limited than, the rules governing liability for the latter tort. Thus recent authority is questioned on the basis that the law in this area was properly set out in the older cases, but for reasons which lie buried and are not always expressly articulated in them. It will be the thrust of this article that the narrow view of the scope of conspiracy to injure by unlawful means which appears in the speech of Lord Diplock in Lonrho v. Shell (No. 2), as interpreted after full argument in the Court of Appeal in Metall und Rohstoff, is mistaken, and that the House of Lords (when eventually it has the opportunity to review these two decisions) should revive the distinction which existed between conspiracy to injure by lawful means and conspiracy to injure by unlawful means prior to 1982.

There may be a point in reviewing the controversy occasioned by Lord Justice Devlin's Maccabaean lecture from an American point of vantage. For the Justice's brilliant and original paper has been heatedly attacked as “illiberal.” In the popular sport of classifying all positions on all subjects as either Liberal or Conservative— and the sport is quite as popular in the United States as it is in other countries—there is an intriguing difference between the rules of the game as it is conventionally played on the opposite sides of the Atlantic. In Great Britain, the suggestion that law has a moral content seems to raise theocratic ghosts in many quarters, perhaps in most; and clearly, theocracy is “Conservative.” In the United States, however, it is just the other way around. Every American schoolboy—or at least every American law student—considers Austinian Positivism, and the strict separation of law and morals, to be certain hallmarks of a position labelled “Conservative,” “Rigidly Technical,” “Reactionary,” or worse. And the view of law as an instrument for carrying out the moral purposes of its own tradition, and those of the society it rules, is a familiar touchstone of orthodox “Liberalism.”

This article evaluates the established judicial proposition that an agreement to negotiate in good faith is antithetical to the principles of the common law. English courts are reluctant to enforce such agreements on the ground that they constitute unenforceable “agreements to agree”. Recently, courts have started to recognise an exception in cases where parties agree to negotiate over a term mandated by an existing agreement, such as to review a price clause or resolve a dispute by undertaking negotiations in good faith. The primary arguments against enforcing an independent agreement to negotiate in good faith are threefold. First, parties engaged in good faith negotiations are assumed to lack a serious legal intention to contract. Second, such an agreement is substantively uncertain in nature and does not promise to produce a contract. Third, the failure of parties to conclude their negotiations does not lead to an easily identifiable loss. In light of these considerations, this article considers the viability of enforcing an agreement to negotiate in good faith in the absence of a pre-existing contract. It argues that the legal obstacles to recognising agreements to negotiate have been overstated. Given the commercial value of enforcing such agreements, it proposes that agreements to negotiate in good faith should be recognised and given legal content by common law courts.

The primary focus in current analyses of English unjust enrichment law is upon restitutionary rights, not remedies. There are a number of explanations for this; some pragmatic, some historical, some linguistic, some theoretical. The author argues that none of these, when closely examined, justifies a failure to develop a separate remedial agenda for the subject, such as exists in other private law subjects like contract and tort. Indeed, there are powerful arguments in favour of this approach. The existing conceptual apparatus of unjust enrichment law (based on causes of action and defences) is ill-equipped to cope with quantification, valuation and choice of remedy issues. At a theoretical level, the traditional distinction drawn between primary and secondary rights (remedies) is as valid in unjust enrichment law as it is in contract and tort. A separate remedial focus contributes significantly to our understanding of restitutionary rights and has significant organisational advantages. Furthermore, the concerns expressed about the Canadian “remedial” constructive trust concept are misplaced in so far as they imply that remedial approaches are necessarily uncertain. The development of appropriate remedial concepts ought, if conducted in a disciplined way, to increase the coherence and predictability of outcomes, not detract from the achievement of these aims.

We live in “an age of increasingly multicultural societies”. This multiplicity of cultures brings with it diversity and differences: religious beliefs form one, but arguably an increasingly important, point of distinction within our societies today – both between religious and non-religious people and between people of different faiths. Recent and current events – local and global – emphasise the importance for society of maintaining adequate means of mediating between different and divergent interests in matters of faith.

Regulatory competition is a salient feature of US federalism. The fifty States potentially serve as the rivalling jurisdictions' laboratories breeding constant legislative innovation.

In a judgment awaited with great apprehension, the House of Lords on 29 November 2001 refused Diane Pretty’s application to compel the Director of Public Prosecutions to give her and her husband prior assurance that her husband would not be prosecuted under section 2(1) of the Suicide Act 1961, were he to help her to commit suicide some time in the not too distant future, when she would clearly have communicated her wish to quit this world, but would, on account of her physical condition, be unable to accomplish her objective without the assistance of another person. The European Court of Human Rights subsequently confirmed that the exceptionless prohibition of assisted suicide, even in so far as it indirectly prevented a person in Mrs. Pretty’s physical predicament from committing suicide at all, was compatible with the United Kingdom’s obligations towards Mrs. Pretty under the European Convention on Human Rights. At the same time, there are important discrepancies between the analysis of the human rights issues in the House of Lords and the reasoning of the European Court of Human Rights. Had their Lordships realised that the scope of protection afforded to personal autonomy under the Convention includes the making of autonomous choices even in matters of life and death, and that the particularly burdensome effects of the domestic law on persons like Mrs. Pretty stood in need of separate and particular justification under Article 14, the outcome of the case might have been a different one.