Any discipline or body of knowledge operates within the confines of a set of criteria as to what constitutes its object and equally as to how that object is to be known. The two sets of criteria, of object and method, are obviously interrelated. How we know an object is in large part constitutive of what that object is taken to be. At the same time, if there is in some sense an object external to how we come to know it, this presupposed or preconstructed object is going to act as a powerful limit upon what can be knowledge of it, without at some point transgressing the boundaries of the common sense of the object. There comes a point, in other words, when divergent statements are no longer concerned with the same object. It is my contention here that positivist jurisprudence, a certain tradition of statements about what law ‘is’, has already arrived at this point.

In most branches of the law where statute dominates, such as taxation, social security and employment protection, the legislation is nowadays quite frequently revised. Often this is because a new government requires important changes of a political character, although the oportunity can be taken to remove ambiguous, anomalous or antiquated phrasing. But from time to time, perhaps as a result of a Law Commission report, a statute is revised for social, administrative or even juridical reasons. At all events, what may be called the operational art of our statute book dating from before 1945 is comparatively small.

For the first time in nearly 40 years the House of Lords has examined the basis for liability for negligently inflicted nervous shock. The primary conclusion of their Lordships in Mcbughlin v O’Brian, that liability depends upon foresight of shock in the absence of considerations relevant to negative the duty of care, confirms the earlier approach of the House in Bourhill v Young, but the decision for the plaintiff makes it clear that the known scope of the tort of negligence has undoubtedly been expanded. Mrs McLoughlin was two miles away when the accident in which her family was injured occurred and the shock she suffered came not from seeing the accident but from coming upon its after math sometime later at the local hospital. In no other English case had there been liability where there was such a separation of time and places’.

It is a commonplace of the law of mitigation and remoteness in tort that if a plaintiff who has suffered tortiously inflicted personal injuries unreasonably refuses medical treatment he will be regarded as having failed to mitigate. Tersely stated this may seem almost self-evident though case law here and in Australia shows that it involves a number of difficult issues.

Workmen's Compensation supplied a prologue to the present law. Though the statutes nowhere required an injured workman to mitigate by undergoing treatment, the courts held that any incapacity which could be regarded as resulting from a workman's unreasonable refusal of treatment was not proximately caused by the accident on which the claim was based and hence did not qualify for compensation.

The substance of this article revolves around Kenny's rhetorical question. It is a widely held view among lawyers and legal philosophers that the idea of criminal justice involves the presupposition of the freedom of the will, but there are good grounds for accepting some version of determinism as a working hypothesis to explain criminal behaviour. Judges themselves on occasion do this. Unless it can be shown, therefore, that determinism is either compatible with free will, or is itself an incoherent doctrine, the whole rationale of the criminal law as a form of social control stands exposed to criticism.

Ten years ago, the House of Lords decided the case of The Atlantic Star. Hitherto it had been clear beyond argument that English law denied the idea that an action brought in English courts could be stayed on the ground (however the criteria be formulated) that a foreign court was more suitable for the case to be adjudicated in. That case, however, touched off the process of reconsideration: a process which continues today, and which shows no clear signs of settling down to a coherent and well-founded body of law applicable to motions for stays. It is the purpose of this paper to examine the progress which has been made so far, and to demonstrate that it does contain the raw material from which an entirely satisfactory restatement of English law could be made.