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’.

Proposals for a new constitutional settlement have highlighted issues, many of them factitious, about the Human Rights Act. This paper suggests that the relationship of rights to duties is poorly understood, and that the majority of recognised rights already carry corresponding duties, but that to try to make the enjoyment of rights conditional on the fulfilment of duties is neither principled nor practicable. It is suggested that, using mutual respect as a sounder basis, a larger Bill of Rights can be contemplated. But good constitutions cannot be willed into being: pending the arrival of a constitutional moment, reform is likely to be a process of interest-group wrangling in which the most that can be looked for are some modest but necessary reforms.

No legal integration project can circumvent the matter of language. Yet, lawyers advocating one form or other of Europeanisation of law, apparently basing themselves on the unexamined view that everything is adequately translatable, do not seem prepared to address linguistic issues. But a move beyond law's disciplinary barriers – in particular, a foray into translation studies (or ‘translatology’) – compels one to challenge the effectivity of the uniformisation agenda. First, it shows that the inherently local character of language resists the establishment of uniform law. Second, it demonstrates that no uniform law, irrespective of the language in which it is written, can account for local legal experience. Both claims suggest that language simply cannot be made subservient to the lawyer's agenda and that the assumption that it can be ignored is mistaken.

This paper explores Dworkin's ‘law as a chain novel’ analogy and considers the recent work of Dworkin and MacCormick through close scrutiny of two recent judgments of Lord Hoffmann, in Barlow Clowes v Eurotrust International [2005] UKPC 37 and Barker v Corus [2006] UKHL 20. The aim is to examine Dworkin's theory in the context of recent English private law decisions and determine whether Lord Hoffmann's approach to interpretation is consistent with that of Dworkin (as his Lordship has contended in the past). It is argued that Lord Hoffmann's treatment of recent decisions on which he himself sat raises significant questions regarding fidelity, coherence and the institutional structure of the House of Lords.

There is increasing support in the contract literature for the view that the remoteness rule is essentially concerned with identifying an implicit allocation of risk made by the contracting parties. This paper argues that the remoteness doctrine is more accurately seen as a method by which the courts allocate risks which the contracting parties have failed to allocate, rather than an interpretative rule. Through analysis of the principles and their application in the recent case-law in England, Canada and Australia, the paper shows that the identification of an implicit allocation of risk does not and cannot determine remoteness cases in contract. The justice of the remoteness rule is not based on the notion that the defendant undertook responsibility for the risk in question, but on a concern that the defendant should have a reasonable opportunity to consider the risks that might arise from breach and take action to avoid them.

The 1844 decision of the House of Lords in R v Millis – which apparently held that the presence of an episcopally ordained minister had been necessary to create a valid marriage even before legislation was introduced to regulate the formation of marriage – has universally been regarded as erroneous by generations of scholars. This paper shows that the outcome of the case was in fact correct, even though the reasoning of all but one of the judges was flawed. It explains why the case has been misunderstood, and why the misunderstandings it demonstrated have never been corrected.

Despite exerting a considerable influence over contemporary constitutional thought, there is a very real sense in which the political constitutionalism of JAG Griffith has been neglected. This paper seeks a genuine engagement with Griffith's work and, in doing so, offers a reconstruction and partial defence of Griffith's political constitutionalism. The article characterises Griffith's political constitutionalism as ‘agonistic’– that is to say, issuing from a belief in the inescapably conflictual nature of human association. Central to this agonistic political constitutionalism is the relationship between conflict and politics – or what might be termed the political management of conflict. This paper argues that Griffith's account of conflict, although central to his constitutional thought, is underdeveloped, not least in its failure to elucidate precisely what is to be understood by ‘politics’. It is thus that the paper draws on the work of Michael Oakeshott to propose an understanding of politics as the pursuit of intimations that, it is argued, can help draw out an important blend of conflict, continuity and contingency in Griffith's political constitutionalism.

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.

Corporate governance best practice now includes the requirement for a board to ensure that the system of internal control is effective in managing risks in the manner which it has approved. The Turnbull Guidance on this matter is ‘based on the adoption by a company's board of a risk-based approach to establishing a sound system of internal control and reviewing its effectiveness’. This involves the identification and prioritising of risks and embedding the risk management approach in the culture and processes of the business. This article explores the use of risk assessment in the law, particularly as it applies to the activities of companies. It is suggested that a concentration on, and perhaps a spurious quantification of, risk could mask the difficulty of making board-level decisions under conditions of true or Knightian uncertainty. Knight maintained that true uncertainty was something distinctly not of the character of risk. It occurs when ‘. . . there is no possibility of forming in any way groups of instances of sufficient homogeneity to make possible a quantitative determination of true probability. Business decisions, for example, deal with situations which are far too unique, generally speaking, for any sort of statistical tabulation to have any value for guidance. The concept of objectively measurable probability or chance is simply inapplicable’.

I will argue that – as an exception to the general rule adopted in England and Wales – third parties, including victims, should in some circumstances be permitted to bring proceedings for (inter alia) judicial review of sentences, and other measures, imposed on offenders. Such proceedings should not be ruled out when parts of sentences, or other orders, are meant to affect the interests of individual third parties themselves, and the prosecution cannot reasonably be expected to be solely responsible for protecting those interests. However, I will also conclude that, from a public law perspective, there is a preferable solution. Third parties who may be adversely affected by sentences or orders imposed on offenders should sometimes be given a limited degree of involvement in the process leading up to the imposition of those sentences or orders. Recent legislation takes us some way towards this goal.

In determining whether an employer is vicariously liable for the torts committed by his employee, the House of Lords in the landmark decision of Lister v Hesley Hall proposed that courts should now focus on the relative closeness between the nature of the employment and the tort. Unfortunately, this touchstone test simply begs the question of how close must the nature of employment and the tortious action be before liability can be found. To say that the tort in question was inextricably interwoven or so closely connected with the nature of the employment is conclusory not prescriptive. The close connection test in itself merely provides the court with a formula to confirm its result, not reach one. This author seeks to argue instead that the following legal tests should be employed to determine whether an employee's wrong was committed in the course of his employment. (1) Where the employee has been negligent in the performance of his duties or where the employee has deliberately engaged in self-serving conduct (not amounting to a tort) and in doing so negligently causes injury to another, the employer would only be vicariously responsible if the injury suffered by the victim arises from the inherent risks of the employment. (2) Where the tort committed by the employee is trespassory/intentional in nature, the employer would only be vicariously liable if he has materially increased the likelihood of occurrence of an injury that arises from an inherent risk of the employment. Essentially, my suggested formula would only find liability when the injury suffered by the victim arises from the risks inherent in the tortfeasor's employment, ie the employer would not be liable for all risks he creates when the wayward worker is in his employ.

The tort of unlawful interference with economic relations is anomalous since it allows a plaintiff to sue a defendant for a loss that is occasioned by an unlawful act committed by that defendant against a third party. This parasitic liability is seemingly in violation of the basic tort law principle that in order to make out a claim what the plaintiff must show is a violation of her own rights, not merely a wrong to someone else. Thus, it appears that the tort is an instance of damnum absque injuria. This paper examines whether this is in fact the case by examining if there are any rights-based theories that can explain the tort in a way that is consistent with basic private law principle. In other words, is it possible to find an independent right of the defendant that has somehow been violated, one which explains why the defendant is able to sue in their own right? Upon examination, it appears that the ‘right to trade’, ‘remoteness’ and ‘abuse of right’ theories are largely incapable of providing such an explanation since they display many seemingly insurmountable problems of coherence and fit with the existing case-law. More promising are the arguments that the tort is a justified exception to basic principle or that it is an example of public rights being vindicated in private law, yet each of these theories is also problematic in some respects. The overall thesis of the paper is that the tort of unlawful interference with economic relations is radically under-theorised and that it, and the other economic torts, could benefit tremendously from more intense academic examination.

Systems of representative democracy require that the electorate be given at regular intervals the opportunity to replace the party in government with a rival political association. In this context, the right of individuals to freedom of association permits the formation of competitor parties and prevents forms of state intervention that might otherwise privilege existing office holders and their political programmes. It follows then that restrictions on the right to political association are deserving of particularly close scrutiny. At the same time, liberal democratic constitutions usually insist that participants in electoral process manifest a level of commitment to core liberal democratic norms (such as the rule of law, toleration, the equal worth of each individual and the peaceful resolution of grievances). In the case of intolerant, extremist parties that would reject some/most of these norms, the state may invoke a range of defensive measures up to and including proscription in order to safeguard democracy. This paper takes as its focus the constitutional issues raised by the banning in Spain of Batasuna – the political wing of ETA. A legal challenge to the ban is currently before the European Court of Human Rights. Making reference to work of John Rawls, this paper considers whether the ban on Batasuna is justifiable in terms of liberal political theory, before analysing the extent to which proscription conforms to international human rights law and European Court of Human Rights jurisprudence.

Truth commissions have an intuitive appeal in squaring the circle of peace and accountability post-conflict, but some claims for their benefits risk utopianism. Law provides both opportunities and pitfalls for post-conflict justice initiatives, including the operation of truth commissions. Rather than adopting a heavily legalised approach, derived from Public Inquiries, an ‘holistic legal model’, employing social science fact-finding methodologies to explore pattern of violations, and drawing appropriately on legal standards, may provide the best option for a possible Northern Ireland truth commission.

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 integration of national financial markets over the past 30 years has resulted in a globalised market for corporate control which has increased both the opportunities for companies to fund acquisitions and the possibility of being acquired. Takeovers and mergers have, as a result, become a matter of some concern for governments, as they try to encourage the development of financial markets but also deal with the consequences of a globalised market for corporate control, where even companies regarded as national champions are within the reach of a foreign takeover. In the course of the last decade General Principle No 7 of the UK Takeover Code, that shareholders should decide the outcome of a takeover bid, has been adopted in many jurisdictions around the world and has formed the heart of the EU Directive on Takeovers. The Principle is however a controversial one, as its adoption is often viewed in civil law jurisdictions as an attack on a core part of a social market system. This has been particularly evident in the debate on the EU Directive on Takeovers. A number of common law heritage countries have also based their takeover regime around General Principle No 7 and many of these common law heritage counties have similarities with social market systems, in that they have less significant stock exchanges than the UK, the make up of their shareholding base is more concentrated and employment protections are more extensive. A central jurisdiction in that overlap is Australia, with exactly this combination. The purpose of this paper is to examine the historical effect of introducing UK takeover principles into the Australian system, by creating an empirical data set of takeovers of Australian listed companies covering the period before and after those UK-based principles were introduced. In doing so the paper found that factors such as concentrated ownership, capital controls and protective labour law have significant effects on the market for corporate control. There was no transforming effect evident in adopting an anti-managerial pro-shareholder takeover regime. As such, the fear that the adoption of a standardised EU-wide takeover Directive, along the lines of the UK Panel on Takeovers and Mergers' shareholder-oriented General Principle 7, would have a negative transforming effect on social market systems appears, on the Australian evidence, to be overblown, while other key features of such systems, particularly concentrated ownership and protective labour laws, remain in place.

Recent judgments in England and Wales have confirmed and extended the High Court's inherent jurisdiction to make declarations about interventions into the lives of ‘vulnerable’, rather than simply ‘mentally incapacitated’ adults. We argue that this shift is problematic because of the ways that the ‘vulnerable adult’ has been constructed in order to justify such interventions. The accounts of vulnerability drawn upon in the constructive process highlight the person's inherent characteristics and/or the circumstances within which that person might be denied the ability to make a free choice. Such an approach parallels the public policy protection of ‘vulnerable adults’ from abuse in care services and the statutory protection of ‘vulnerable witnesses’ in the criminal justice system, and is built on an external and objective assessment of being ‘at risk’, rather than an understanding of the subjective experience of being vulnerable. We argue that this imbalance might act to disempower the ‘vulnerable adult’ by reducing that person's life to a series of risk factors that fail, first, to place him/her at the heart of the decision to intervene, and, secondly, to engage adequately with the experiences through which that person ascribes meaning to his/her life.

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.

This paper examines the challenges of enrolling minors in biomedical research that does not offer participants any prospect of direct benefit. It does so in the context of the current Singapore regime for the protection of research subjects, and seeks to evaluate if this is adequate for the task. In the process, it reviews appropriate Commonwealth and US precedents, regulatory instruments and guidelines that bear on three main issues raised by such research, and makes some recommendations on how they might be better addressed: first, the protective ceilings of risk prescribed beyond which minors may not be exposed to. Secondly, the allocation of decision-making authority and processes employed before a minor is permitted to enrol in such research. Finally, the particular regulatory oversight mechanisms that are needed to improve ethical and legal compliance.