When I was first called upon to lecture during the darkest days of the war in 1941, because Hersch Lauterpacht was on some mission, I was still surrounded by my own teachers—Buckland, Duff, Gutteridge and McNair (Hazeltine had left). Of these Gutteridge and McNair influenced me most—the former by convincing me that foreign law was well worth studying, if not for its own sake, then in order to test the validity of one's own cherished notions and established techniques and to acquire the inspiration for new solutions, but not in order to discover an all pervading droit commun legislatif. McNair impressed upon me the reality of the rules of international law in the practice of states and in the administration of law by domestic courts. Not monism of a doctrinaire kind, but the age old tradition of the common lawyer to interpret English law so as not to conflict with international law was his inspiration, which has guided me ever since. I must not omit two other formative influences from times long passed. My teachers in Berlin included the last “Pandectist” (Th. Kipp), the broadly based Romanist, Greek scholar and modern comparatist as well as innovator of private international law (Rabel), and the superb exponent of private and private international law (M. Wolff) whose nephew, I am happy to think, will continue the propagation of the work which has been carried out in Cambridge since 1930 by Gutteridge, Hamson and myself. Gutteridge, Rabel and Wolff, whose works in the English language have enriched the fund of the common law, probably gave me the foundations on which most of my own work is based.

The purpose of the present study is to consider the constitutional significance of four House of Lords decisions which raise fundamental questions about the legal status of the Executive branch of government in the United Kingdom and its relationship to the courts. The decisions are those in: Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C. 75; [1964] 2 All E.R. 348; Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853; [1966] 2 All E.R. 536; Conway v. Rimmer [1968] A.C. 910; [1968] 1 All E.R. 874; Nissan v. Attorney-General [1970] A.C. 179; [1969] 1 All E.R. 629.

A person who receives property under an apparent contract of sale can be guilty of theft of what he receives if the contract is void, for mistake or otherwise. It seems, since the decision of the House of Lords in Lawrence, that a person who obtains a voidable title (title under a voidable contract) can be similarly guilty (assuming, as always, that the other essentials of theft are present). I argue else where that a person who obtains a valid title to property generally does not by doing so make a dishonest appropriation (even though he may be morally dishonest), and should not be guilty of theft. The object of this article is to consider the way in which these principles apply to transfers made under mistake.

In Lawrence the defendant's title to the money was voidable for fraud, which induces a degree of mistake by the transferor; but other sources of mistake are possible. The transferor may make a spontaneous mistake, or a mistake resulting from the transferee's innocent misrepresentation, without fraud.

Three legal results can follow from a mistake in transferring property, according to circumstances.

(1) The mistake may avoid the transaction, preventing title from passing. The transferee can be guilty of theft of the property on ordinary principles, that is to say by applying the definition in section 1 (1) of the Theft Act 1968.

(2) The mistake may make the transaction voidable, so that a voidable title passes. Precisely when the transferee commits theft is a complex question, which will be postponed for the time being.

The English lawyer has been notoriously unwilling to admit the relevance of social sciences to his discipline. In part, this may be attributed to his lack of formal training in economics or sociology. As regards the latter, there are some signs of the handicap being overcome: much current research effort is now being directed to the interpretation of law and the legal system as social phenomena. But the application of economic reasoning to legal instruments and institutions has been limited and tentative. Although it has long been recognised that a marriage of the two disciplines is necessary for the procreation of effective norms in areas where the law clearly governs economic activities, for example, the regulation of trade and income redistribution, so far, in this country at least, creative thinking about central legal institutions such as tort, contract, property and crime has remained relatively untouched by such a mode of analysis. Yet, as Americans have demonstrated, there is nothing inappropriate in such an exercise. At first sight the subject areas of economics and law will appear to diverge significantly: the former is “concerned with the manner in which a society produces, distributes and consumes wealth when it is constrained by scarcity, either of tangible resources or of intangible resources,” while the latter is often viewed as a system of norms governing the conduct of individuals and institutions. Yet such conduct will generally involve the transfer and acquisition of resources. With this congruence of interest, therefore, the opportunity exists to compare economic analysis with prevailing legal rules on particular issues to see whether the “right” solution is reached.

In his Analysis of the Laws of England, Blackstone briefly assesses the work of those of his predecessors “who have laboured in reducing our laws to a system.” Glanville and Bracton were overburdened with ancient learning; the abridgements of Fitzherbert and Brooke “merely alphabetical in character”; Francis Bacon's Elements “purposely avoided any regular order”; Coke's Institutes “are unfortunately as deficient in method as they are rich in matter.” However, “Sir Henry Finch's discourse of law is a treatise of a very different character; his method is greatly superior to all that were before extant; his text is weighty, concise and nervous; his illustrations are apposite, clear and authentic.” Indeed by Blackstone's own account it would seem that but for the abolition of military tenures and the disuse of real actions, which had rendered “near half of the book obsolete,” Finch's “happy progress in reducing the elements of the law from their former chaos to a regular methodical science” might have provided the scheme for that “proposed course of academical lectures” which was the immediate source of the Commentaries on the Laws of England.

It is unlikely that those who were responsible for giving the World Court the power to indicate interim measures of protection could have anticipated the controversy which was ultimately to surround its exercise. Applications for interim measures have been few, even by the inexacting standards of international litigation, but the cases in which such measures have been sought have raised questions of fundamental importance. Controversial issues have included the power of the Court to indicate interim measures on its own initiative, the binding nature and enforceability of interim measures, their purpose and their relation to the Court's substantive jurisdiction, that is its jurisdiction to rule upon the merits of a dispute.

The concept of authority is one which may be explicated in many ways—normatively, psychologically, sociologically, politically. That is to say, one may seek to show how it is used in the contexts of normative justifications or of assertions about psychological, sociological or political phenomena. As a normative concept, “authority” relates to situations in which there is given as a reason warranting that something should, must not, or may be done the fact that a particular individual or individuals has so laid it down.

I. Introduction

The Philosophy of the law has largely accepted that laws are rules although it still struggles with the completeness of that paradigm. Nevertheles there has been no clear analysis for the law of what a rule is and what it entails. This paper is an attempt to do that.

J. M. Steiner has argued, in a fashion to be gone into in a moment, that inevitably “the judge retains a field of choice” in legal decision. This choice is substantive and not merely discretionary in some soft sense which would find discretion, like judgment, necessary to the application of any and all rules. The thesis is not the weak one that an official, say a sports referee, must judge—and be allowed the discretion to judge—whether an infraction has been committed before he can apply the relevant rule. It is the strong one that, sometimes at least, an official must himself supply additional premises, which are from “outside” the law, for his decision. These external premises are of the same level of substance and import as any statute or precedent might be.

His argument for this position is negative in form. He holds that since no ordered set of “principles” or goals can give guidance on cases “outside” their range, and since many such cases will systematically exist, the law in order to be decisive—a virtue of high worth—must allow the judge the power to complete the legal argument for such excluded cases. He will do so presumably by supplying the missing premise from his “field of choice” and ex hypothesi not from precedents or statutes. Let us suppose, along with Steiner, that the set of premises whose adequacy is in question is a set which contains the goals of the law. Steiner's position then is that any such set which exists within the law and is “closed” to addition by the judge will be systematically inadequate for some or many cases which can come before him for decision.

The period from about 1300 to 1628 witnessed the beginnings of martial law, the establishment of custom governing the situations in which it might be invoked, then a break with that custom followed by a period of widened application, and finally, a reaction, once again restricting the Crown's use of martial law. Although extended, this period needs to be understood as a coherent whole, what might be termed, the first chapter in the history of martial law in England.