In dealing with rules of a procedural type lawyers often make a distinction which is referred to as that between ‘mandatory’, and ‘directory’ rules. (The terms ‘imperative’, ‘absolute’, ‘obligatory’, ‘compulsory’, and ‘peremptory’, have sometimes been used instead of ‘mandatory’.) The distinction has to do with the effect of breach of a rule on the process to which it relates. Very broadly, mandatory rules are those procedural rules the breach of which necessarily invalidates the process to which they relate, while directory rules are procedural rules the breach of which does not necessarily have this effect. This distinction has existed in the common law for about three hundred years, yet, so far as I can discover, no serious attempt has ever been made to explore its logical basis. That is surprising, for on its face the distinction is a puzzling one.

In his book Courts on Trial Jerome Frank suggests that we might turn our attention, when studying law, to the trial rather than the appellate courts. It is what goes on there that should inform us when talking of justice. Frank was worried over the unsatisfactory state of fact gathering in these courts and the book is not just a critique of what happens but also suggests many reforms. In this paper I am going to be concerned with his slashing attack on adversarial methods of trial in a chapter in the book revealingly entitled ‘The Fight Theory vs the Truth Theory’.

‘The House of Lords has a dismal record in criminal cases. All too often their lordships’ decisions have to be reversed by legislation…the present decision could well be another'.

In two recent criminal appeals of major importance on the meaning of mens rea, Caldwell and Lawrence, the House of Lords has departed so far from the academically accepted deffition of ‘recklessness’, that Professor Smith is driven to ask, ‘Can we really afford the House of Lords as an appellate criminal court?’. Such desperation surely indicates that their Lordships have got things badly wrong and it is our purpose in this article to examine whether this is indeed the case.

It is commonplace in the commercial world for contractual obligations to be performed by persons other than the original parties to the contract. Because of the doctrine of privity of contract persons who are not party to a contract generally cannot take advantage of terms contained in it. If, therefore, a person undertakhg the performance of obligations which someone else has originally assumed misperforms those tasks so as to incur legal liability towards the other original contracting party, it would seem that he cannot rely on a protecting clause in the contract even though that clause may purport to afford him cover. A variety of avenues of escape from this situation (which is often commerically inconvenient) have been at various times advocated: the doctrine of vicarious immunity and the trust idea have been explored and eventually rejected. Other methods of avoidance retain more vigour: we have probably not heard the last of arguments based on the doctrines of volenti non fit injuria and disclaimer, of the bailment on terms and of the idea of spelling out a separate contract (or offer) between the party now suing and the third party.

May a worker bring a common law action against an employer who refuses him employment on racial grounds? The established view is that the answer is an emphatic ‘no’. The clearest enunciation of this view has been made by Hepple who explains the alleged absence of a common law remedy for discrimination in employment on both ‘doctrinal’ and ‘practical’ grounds. This article examines these doctrinal and practical underpinnings of the established view and suggests that they may not be as secure as is commonly believed. It is suggested that, while the weight of academic opinion denies the availability of a common law action based on a tort of discrimination, there may be theoretical and empirical grounds for the alternative view that, in appropriate circumstances, a plaintiff might successfully raise in an English court a common law action for racial discrimination in hiring. This is of particular importance in view of the weaknesses of the statutory remedies documented by Lustgarten.

Many words do not have a single meaning. There is rarely a problem where two different words of the same spelling have a different meaning as the context usually will clarify which of the alternative words is intended. The difficulty arises where the same word has more than one meaning and the different meanings are not unrelated to each other. The word wilful is such a word and much would have been gained if it had been struck out of the Parliamentary draftsman's dictionary many years ago. Very popular in Victorian legislation, its use in modern drafting is less common, but it still haunts the statute book providing problems of interpretation and illustrating the underlying conceptual weakness of much of English law.