This article suggests that Jeremy Bentham's principle of utility plays a crucial role in his work as a ground not only of moral or censorial judgment but also of expositorial legal judgment. If we are to reject the characterisation of Bentham as a natural lawyer, the most coherent re-interpretation of his position, a morally sceptical interpretation of his insistence on law as a cause of social order, would be as a noble or enlightened despotism, a decision to defend utility as a politically authoritative but philosophically unjustified principle. It concludes that other rationalist legal positivists face similar versions of this dilemma.

It is sometimes supposed by English lawyers that one of the principal differences between their law and other European legal systems is that the common law is founded on decided cases, whereas systems influenced by Roman law depend on texts and doctrinal literature. Some Civilians might accept the distinction. But the canonist knows that it is hardly accurate. In the first place, his decretals can be regarded both as case-law and as texts. Moreover, once the pope began to commit his adjudicative authority to a court composed of doctors of law, canon law became increasingly the jurisprudence of a learned tribunal. The supreme papal court was the “Audience,” where cases were heard before the auditors of the papal palace (domini auditores sacri palacii apostolici). The pope had appointed auditors of causes since early times, and their procedure had become regularised during the thirteenth century. By the fourteenth century, when these judges were lawyers of distinction from all over Europe, the Court of Audience had become a collegiate body; and under Pope John XXII (1316–34) it was given a written constitution and a settled home. John settled his curia at Avignon, and built a hall of audience alongside his palace there. In 1331 he promulgated the bull Ratio iuris, which was intended to govern for all time what it described as “the highest court established under divine inspiration, where the quality of justice abounds in excellence and brilliance.”

This article seeks to defend the law of unjust enrichment against the recent influential attacks of Robert Stevens (“The Unjust Enrichment Disaster” (2018) 134 LQR 574) and Lionel Smith (“Restitution: A New Start?” in Devonshire and Havelock, The Impact of Equity and Restitution in Commerce (2018), ch. 5). A central argument here put forward is that there is a law of unjust enrichment, embodying a cause of action in unjust enrichment, which unites what Stevens and Smith see as disparate categories. A linked but separate argument is that, within the central area of unjust enrichment, Stevens is incorrect to regard the defendant's acceptance of performance as being necessary to trigger restitution albeit that acceptance may be relevant in establishing that the defendant has been enriched. A further, and more specific, argument is that, with great respect, the overruling, as a matter of principle, of Sempra Metals Ltd. v IRC [2007] UKHL 34, [2008] 1 A.C. 561, by the Supreme Court in Prudential Assurance Ltd. v HMRC [2018] UKSC 39, [2018] 3 WLR 652, seems unfortunate and appears to have been influenced by Stevens's excessively narrow approach to the meaning of “at the expense of”.

After a decade of adventure, Anns v. Merton Borough Council has been killed off. The case that seemed to many to be the most important statement of the law of negligence in England since Donoghue v. Stevenson has been finally done to death by a specially augmented House of Lords in Murphy v. Brentwood District Council?

For the House of Lords openly to overrule one of its own previous decisions is itself an event rare enough to deserve comment. But when the Law Lords, by 7–0, declare unsound a case that has been cited in 189 English cases in only 13 years (and until recently mostly with approval), we know that something extraordinary has happened.

The increase in the powers of public authorities is rightly accompanied by a concern that they should be neither abused nor exceeded. One form of control lies in the judicial remedies, of which the least employed is damages. This is not surprising since, regardless of the loss sustained, the unlawfulness of an administrative act does not automatically confer any right to compensation. Where an administrative act is unlawful because it involves a tort such as negligence, nuisance or trespass, then it is well-established that the public authority responsible will be liable to pay damages to those whom it affects. It is, however, unlikely that one of those torts will be committed where the unlawfulness stems from a breach of the rules of natural justice or a failure to consider all the relevant factors. Nor will they necessarily be involved where an authority misuses or exceeds its powers; for example, by the wrongful refusal or cancellation of a licence. Nevertheless, the extent of governmental regulation means that loss for individuals and businesses is not inconceivable where these types of illegality take place. If there is no right to compensation in such cases, then success in obtaining certiorari or mandamus might well be regarded as a pyrrhic victory.

THERE are few more vexed areas of contract law than that of a mistake as to the identity of a contracting party. The case law is difficult to reconcile. Judges and jurists disagree as to the effect of a mistake of identity upon the formation of a contract. This disagreement extends beyond discordance as to the operative principles to the very existence of the doctrine. That the issues are of current concern can be seen in the recent decision in Shogun Finance v. Hudson. This article examines how and why such a situation arose through an examination of the historical development of the doctrine. The thesis of this article is that the meaning of the early cases is obscured when they are viewed solely from a contractual perspective. The participants in these cases were also concerned with issues of criminal law and tort law. As these concerns disappeared from the law the meaning of the early cases was obscured and the cases have ceased to make sense. The article concludes with two sets of observations: first, what can be concluded, as a matter of legal history, from the development of this doctrine; secondly, how the modern law of mistake as to identity should regard these early cases.

According to Ronald Dworkin, all judges are by necessity philosophers, and no judge is a better philosopher than Hercules. This superhuman jurist understands that law's empire embraces not just decisions about rights made in the past, but also rights implicit in the theory of political morality that those decisions presuppose. He is able to survey all of the diverse laws within a system and then construct a comprehensive theory of political morality that shows those laws to be as coherent and unified and just as they can be. From this theory not only will right answers in hard cases emerge, but the value of integrity-the value of extending to everyone the rights extended to some so that equal concern and respect is secured for all-will be honoured. In contrast, Herbert, the judge Dworkin introduces as Hercules' nemesis, thinks that law ends just at the point where hard cases begin. Herbert is intellectually flatfooted in the face of legal challenges that Hercules can handle adeptly and accurately.

In his first book, Taking Rights Seriously, Ronald Dworkin opposed the view that law is a body of publicly ascertainable rules identifiable by some basic master test or rule of recognition. In place of that account he offered a rival vision. Law was portrayed as inherently controversial in content. Discovering the law on this or that subject is not, Dworkin argued, simply a matter of looking up the established rules: it is a matter of constructing a justificatory theory beneath which the established legal rules can be subsumed. In his latest book, Law's Empire, that account of the nature of law has been backed up by an analogous account of the nature of legal theory. A sound theory of law, we are told, is not one that unearths semantic rules governing the use of the word ‘law’. Disputes between rival legal theories do not hinge on the discovery of such deep semantic criteria, any more than disputes about the content of the law in hard cases hinge on the correct application of a rule of recognition. Disputes of both kinds are interpretive disputes: they concern the proper interpretation of legal practices.

This article examines a variety of legal systems with a view to assessing the role currently played within each of them by the principle of unjust enrichment. By focusing on the characteristic features of unjust enrichment claims it seeks to demonstrate that, although there are significant differences between the ways in which different countries handle such claims, there is also much that those systems have in common. While under the common law the principle of unjust enrichment has endured a long struggle for recognition, in civil law systems it has been acknowledged for centuries. This may be because in civil law countries the principle has been expected to play only a residual, and therefore non-threatening, role in the law of obligations while in common law countries it has been called upon, if at all, to serve as the basis for the whole of the law of restitution. We should not assume, however, that all common law systems share one set of characteristics while all civil law systems share another. In some respects there is more in common between systems drawn from each category than there is between systems drawn from the same category. Mixed legal systems, as one might expect, tend to display characteristics drawn from both.

EVER since the establishment of separate legal personality of companies and their limited liability in the nineteenth century, there have been attempts by voluntary and involuntary creditors of the insolvent or dissolved subsidiary to obtain remedies from the parent company. The orthodox view is that the parent company is neither responsible for the acts and omissions of the subsidiary nor liable for its debts. The Court of Appeal in David Thompson v The Renwick Group plc [2014] EWCA Civ 635 confirmed that the exceptions to this orthodoxy apply only in truly exceptional circumstances. As discussed below, the importance of this judgment extends into the realm of international human rights and environmental litigation and has the potential to set back the existing efforts within the European Union to ensure effective judicial remedy for corporate abuses.

In English law, mens rea terms can be defined differently depending on the context. This article attacks this approach, arguing that it pays insufficient attention to the criminal law's twin needs to communicate effective guidance to citizens who wish to avoid punishment, and to control the discretion accorded to the criminal law's institutions. It would be preferable to have clear definitions of mens rea terms applied uniformly across the criminal law. If there are gaps, these ought to be filled by additional mens rea terms. The practical issues raised by this argument are considered briefly.

Despite the fact that the “nature, role and form” of financial market regulation has varied—sometimes significantly—from jurisdiction to jurisdiction, traditionally there has been a remarkable degree of unanimity about the need for comprehensive regulatory controls governing the operations of financial institutions and the financial markets more generally. In essence, this consensus derives from a conception of financial markets as being sufficiently distinct from other kinds of economic activity, such as manufacturing electrical goods, or the marketing of adventure holidays, to require extensive regulation and oversight. From a descriptive point of view, the inspiration for much of this regulation—at least in its statutory form—can very often be traced to various reactions to financial crises. In the US, for example, extensive Federal Securities legislation, which has been in place since the 1930s, was Congress’s response to bank runs and alleged financial abuses in the depression era.

This paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort. It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse. In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018). The Australian reports suggest reforms not only to state practice, but also to private law. This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention. It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart.

Anti-Social behaviour sits at a strange juncture in the law. Maybe this is because of the many forms that it takes—noise nuisance, fouling public areas, aggressive and violent conduct. Some of this is simply non-neighbourly whereas some is quite clearly criminal. The legal responses to anti-social behaviour also take many forms, but the main focus—notwithstanding that anti-social behaviour affects the whole community—has been to see it as a problem to be tackled by local authorities wearing their “housing management” hat. Even the much trumpeted anti-social behaviour order (asbo), which looks in many respects like part of a criminal code, can be applied for by local authorities and other registered social landlords. This focus on the housing dimension may well have fed the notion that it is council tenants who cause anti-social behaviour, and council tenants alone who the local authority is responsible to, and for.

Section 3(1) Human Rights Act 1998 appears to limit the powers of the court; statutes can only be interpreted in a manner compatible with Convention rights ‘so far as possible’. However, in practice, Parliament has given the judiciary carte blanche to determine when it is impossible to interpret statutes in a manner compatible with Convention rights. The express words of section 3(1) are so vague as to provide no clear outline of the limits of possibility. Nor does the legislative history of the Act provide any clear boundary. Should the judiciary so wish, section 3(1) could have the same effect in practice as if it impliedly repealed the provisions of all statutes contrary to Convention rights. It is the judiciary and not Parliament that determine how far human rights will be protected.

Property owners in modern common-law jurisdictions have a wide variety of legal instruments at their disposal to effect the inter-generational transfer of wealth. Indeed the object of much reform in the area of estate transmission in the course of this century has been to reduce the formality required to execute the comprehensive succession arrangements which anthropologists and historians have termed “strategies.” Yet the process of relaxation of formality has not produced a law devoid of requirement, because societal interest is thought at times to conflict with unimpinged informality of transfer. For example, legislatures and courts believe that some formality protects the property owner (who at the time his act has legal effect may be dead) from those who seek to influence or subvert the succession process. Moreover, because nearly all members of society partake of the process, the administrative burden on the judicial system is lessened when law provides a clear set of hurdles for a disposition to surmount in order to be valid. Likewise, the more detailed and tailored to these aims the requirements for validity are constructed, the less likely disputes regarding dispositions will arise. Thus, in modern law, the virtue of simplification is balanced with protective concerns, creating a law of wills and trusts on the one hand sufficiently complex both to embarrass practitioners and confound students, but leaving individuals relatively free to craft estate plans consistent with their own desires.