This paper, delivered as the Second Scarman lecture, argues that the role of a judge on the Supreme Court of a democratic state is to protect both the constitution and the democracy. Judges in modern democracies should protect democracy both from terrorism and from the means the state wishes to use to fight terrorism. Judges meet their supreme test when they face situations of war and terrorism. The protection of human rights of every individual is a duty much more formidable in situations of war or terrorism than in times of peace and security. But if judges fail in their role in times of war and terrorism, they will be unable to fulfil their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace. The paper explores these issues through an examination of the need for a balanced and proportionate approach and by using illustrations from the example of the Israeli Supreme Court, with a focus on the role of judicial review in the ‘war on terror’.

Arguments are sometimes made attempting to justify proprietary awards to unjust enrichment claimants by reference to the ‘priority’ such awards supposedly give in the defendant's insolvency. Those justifications are variously that unjust enrichment claimants do not take insolvency risks, that the defendant's creditors would otherwise receive an underserved windfall, and that unjust enrichment claimants occupy a position analogous to secured creditors. This paper shows that such arguments are flawed. To award unjust enrichment claimants' proprietary rights is not to give them priority in their defendant's insolvency but to withdraw the right from the estate available for distribution to all the unsecured creditors, whatever their order of priority. Moreover, insolvency ‘priority’ is not the only consequence of such an award. Finally, when seen for what they are, viz arguments for the award of property rights, the justifications do not, for a number of reasons, stand up.

The death of an Aboriginal man, Mulrunji, in an Australian police cell in 2004 precipitated an extraordinary response from the community. The usual distinctions between the roles of police, coroner, prosecutors and politicians became confused and merged in the media maelstrom that followed the death. Uneasy alliances developed which qualified the binary response of right versus wrong. Could the coroner's findings be reconciled with the decision of the prosecutor not to try the police officer involved? Was the government's response of overriding the decision of the independent prosecutor justified? What does this case tell us about the adversarial and inquisitorial approaches to evidence? This paper examines the tensions at play in the response to the death of Mulrunji and explores the wide reaching implications for law and justice in death in custody cases.

In constructing criminal policy the Irish legislature seems to be driven predominantly by a pragmatic and populist approach, in contrast to the rights-oriented jurisprudence of the Supreme Court. This paper describes the conflict between the courts and the legislature in relation to criminal justice matters in Ireland, particularly in the context of bail, the exclusionary rule and sentencing, and analyses the reasons for this divergence, drawing on the concept of penal populism. Although the Irish courts serve as a valuable bulwark against punitive populist policies, this paper considers if this failure to adhere to the desires of the legislature and to public opinion is anti-democratic. Furthermore, in assessing the apparent rift between the two arms of the Irish State, this paper highlights areas of criminal justice in which this conceptualisation of the legislature as punitive and the courts as rights-enforcing is unduly simplistic and possibly inaccurate.

The decision of the House of Lords in Elitestone v Morris [1997] 2 All ER 513 added an extra element to the traditional classification of objects brought onto land. The traditional classification divides such objects into chattels and fixtures. In Elitestone, Lord Lloyd of Berwick suggested, borrowing words from Woodfall on Landlord and Tenant, that it might be better to apply a threefold classification: chattels, fixtures and items which are ‘part and parcel of the land itself’. This paper explores the origins of this threefold classification, and suggests that there may be little, if any, historical basis for the new third category; it may owe its origins to the confusion which has surrounded the various meanings of the word ‘fixture’. The paper also investigates how the decision in Elitestone has been applied by later courts, and suggests that it is unlikely that it has made the judges' task any easier.

The relationship between law and justice has long been a concern of legal theory, but the gap of uncertainty, or aporia, between them has been a particular focus of recent jurisprudence. Some theorists, such as Costas Douzinas and Ronnie Warrington, have focused on the cleavage between judgment and the aspiration to ethical justice to the Other, while others, such as Robert Cover, Austin Sarat and Thomas Kearns, have worked on the gulf between law and justice in the face of violence and pain, within, caused by and before the law. This paper suggests that such theories are primarily concerned with problematised dislocation, as a critical technique and an observed state, which is also to be found in modernist fiction, especially in Joseph Conrad's Weltanschauung and literary style. It is argued that examining the disconnections that characterise Conrad's fiction, through engagement with his stories and secondary commentaries thereon, and combining that analysis with the study of dislocation in legal theory, permit the development of a richer picture of these shared concerns. On this basis, the paper constructs a distinct concept of ‘dislocation’ and suggests how it can supplement jurisprudential discussion.

Singapore's Westminster parliamentary system of government was adopted as a historical result of it being a British colony. In its post-independence constitutional development, the dominant People's Action Party political leadership had made a series of constitutional amendments to its original electoral system, introducing innovative schemes such as Group Representation Constituencies, Non-Constituency Members of Parliament, Nominated Members of Parliament and the Elected Presidency. These changes have resulted in an electoral system that is so different and divergent from the Westminster model that it should be regarded a unique regime of its own. This paper advances the view that the constitutional evolution of its electoral system is reflective of a political vision structured along elitist lines – underscored by a desire to restructure the voting behaviour of its citizens, and ensure predictability and the preservation of the status quo. It has been driven by paternalistic assumptions about what is beneficial for its citizens. This paper examines the subsequent implementation of the schemes, before reflecting on how it is a system that has the potential to affect adversely the development of political participation and political pluralism, and dilute democratic politics in Singapore.