A rule of English law is that, where a contract comprises promises that are independent of each other, neither party is entitled to rescind the contract for failure by the other to perform. This paper illuminates the rule by examining various versions of the independent/dependent distinction. On one account, it concerns the reason why someone gives a promise; on others, it concerns the conditionality of a promise. The account in terms of reasons conflicts with the doctrines of offer and acceptance and of consideration. All the conditional accounts provide a justification for the rule, but certain of them — in terms of external conditionality — unduly limit the availability of rescission. The others — in terms of internal conditionality — are therefore proposed. Assuming that an agreement is likewise modelled in terms of internal conditionality, one promise's being independent of another, where ‘independent’ is defined as proposed, is inconsistent with their constituting an agreement. The rule on rescission presupposes, however, that some independent promises constitute a contract. So this is a new reason to hold that, just as not all agreements are contracts, so not all contracts are agreements.

Devolution is usually described in terms of the transfer of powers from central to regional and subordinate authorities. Attention then tends to focus on one dimension of relational power, namely that between the sovereign ‘principal’ and its ‘devolved’ agent. In this paper, and without seeking to assert that devolved institutions are sovereign, it is suggested that we need to develop an additional dimension to our studies of devolution, namely the relational power between government and governed in devolved contexts. Taking the example of devolution to Scotland and the exercise of devolved law-making powers to repeal ‘section 28’ of the Local Government Act 1988, it is argued that in the process of exercising legal and political authority, contestation and conflict over government can produce important constitutional discourses that normativise what counts as an appropriate or inappropriate exercise of devolved governmental power. The process of contesting devolved government is productive of what it means to govern and be governed under conditions of devolution, thereby producing and reproducing devolution itself.

This paper contends that a feminist legal curriculum is necessary for legal education, and that it is also necessary for feminism. It argues that feminism is more than simply one of a number of useful critical perspectives, and that it must be located centrally within the law school and the legal curriculum in order to be effective. In accepting that a black-letter training has many merits and that the current core curriculum has value, the paper nevertheless suggests that both require substantive modifications and new critical dimensions. Specifically, to meet its obligations to our students, the legal curriculum needs to incorporate subjects relevant to women's experience, to make space for women's viewpoints and to offer feminist perspectives in every area of law - and these must be compulsory, not optional, additions. Finally, the paper concludes that implementation of such a curriculum is not only desirable, but also possible, and may indeed become a policy imperative as well as a feminist one.

This paper examines the recent trends in regional and international tribunals that relate to the position of the victim in the criminal process. Recent decisions in both the European Court of Human Rights and other international tribunals have illustrated a new and progressive attitude towards the role of the crime victim. This can be attributed, in part, to the breakdown of the public/private divide in human rights law and the mutually expanding parameters of both human rights discourse and criminal law. It is argued here that cross-fertilisation between these disciplines, which is widely evident in current policy making and judicial decision-making, has meant that the traditional failures of human rights law and the criminal law to protect victims are being addressed – at least to some extent. A line of European and international case law has developed which suggests that victims of crime have acquired a number of enforceable substantive rights, similar to those held by victims of abuse of power. While the potential for victims to be further empowered will always be inherently limited in adversarial jurisdictions, it is none the less a welcome development that a clear trend is emerging which indicates that international policy makers and tribunals are viewing criminal justice issues in a much more holistic manner.

This paper considers the written statements provided to the Bristol Inquiry by parents whose children underwent cardiac surgery at the Bristol Royal Infirmary between 1984 and 1995, seeking to learn from their experiences, opinions, feelings and expectations. The law regulating the relationship between healthcare professional, parent and child is considered in light of these accounts. The limitations of the existing law are such that a new legal framework is required which fosters the relationship between healthcare professional, parent and child, supporting them in the shared endeavour of caring for the child. Of central importance within this new framework would be recognition of each child as a distinct individual and of the expertise which parents can contribute to the care of their child.

The law of theft, as understood in Gomez and Hinks, has been the occasion of almost unanimous academic condemnation and of robust dissenting opinions in the House of Lords. While much of the critical discussion is sophisticated and challenging, it is important that the baby is not to be expelled with the bathwater. We suggest that one argument in favour of the current position is that it offers distinct protection to some of the more vulnerable members of society. This advantage ought nevertheless to be sacrificed if it can be purchased only at the cost of violating the rule of law and the harm principle. But our examination of these ideas reveals that the price need not be paid. The rule of law contains not one idea, but a plurality of ideas, many of which support the current position. As for the harm principle, it is notable that Hinks does not castigate harmless behaviour; rather it attacks the wrong of exploitation. This raises many difficult issues, but we argue that unless such exploitative behaviour is explicitly addressed in Legislation, reforming the current ‘broad’ understanding of the law in favour of a ‘reductive’ account assimilating theft to non-voluntary transfers would be a retrograde step. In principle the new concern for protecting the vulnerable from exploitation is welcome.

Both the Family Division of the High Court and the Chancery Division of the High Court exercise jurisdiction over the Inheritance (Provision for Family and Dependents) Act 1975, with the applicant being able to elect the Division that they wish to proceed in. Many practitioners believe that the two Divisions have different attitudes towards the Act. This paper argues the structure of the 1975 Act makes it highly likely that the two Divisions will approach in different ways and that a close analysis of judgments shows that there is a discernible difference in the rhetoric that is used in judgments in the two Divisions, that this difference in rhetoric affects the way in which applicants are viewed and that thus sometimes it affects the outcome of cases. Since there is no advantage in practice to having the two jurisdictions and since the difference between the jurisprudences in the two Divisions can result in like cases not being treated alike, an elementary form of injustice. The paper concludes that it would be better if one Division exercised sole jurisdiction over the Act.

This paper examines the interplay between discourses of exclusion and inclusion in the relationship between land law and human rights. It explores the common law conception of property in land and its relationship with the conceptual structure of property before suggesting that the particular form the conception takes in the English common law is problematic as a discourse of exclusion in the light of inclusive human rights considerations. However, further submerged exclusions in law are also explored, suggesting a problematic ideological continuity between land law and human rights law, notwithstanding identifiable surface tensions between them as contrasting discourses. Once the continuity of hidden exclusions is identified, the paper explores the theoretical unity between the deep structure of property as ‘propriety’ and human rights as ‘what is due’, and suggests their mutual potential for embracing more inclusive concerns. Finally, two modest proposals for future theoretical reform are offered: the need for a more anthropologically adequate and inclusive construct of the human being as legal actor, and the need for a more differentiated, context-sensitive formulation of the common law1 property conception, one capable of reconciling conceptually necessary elements of excludability with inclusive human rights impulses.

An important demographic and social trend is becoming indisputably evident in the UK. The population is ageing, and a clearly discernible group of elderly persons is growing. As this trend continues, it will be necessary to reconsider the effectiveness and application of the law from the perspective of the elderly claimant. While it has been recognised that there must be a legal scheme to oversee the care and protection of persons, including elders, who are unable to care for their interests due to severe disability, it is becoming evident that even elders who are apparently healthy and able may be vulnerable. Undue influence inter vivos is a significant legal doctrine upon which elderly people have relied in recent times to set aside gifs, contracts and guarantees which they (or their representatives) have considered in hindsight were not in their best interests. This paper seeks to provide an analysis of and contribute to an understanding of the doctrine of undue influence from the perspective of the elderly claimant in the UK. The paper considers actual and presumed undue influence and the impact of the House of Lords decision in Royal Bank of Scotland plc v Etridge (No2). It will be argued that the law of undue influence inter vivos is in transition from a nineteenth-century doctrine which did not confer a special legal status on the elderly to one which is applied in the context of an increasing recognition that the events leading up to the transaction and the circumstances of the case may indicate that elders need the relief which the doctrine affords. Nevertheless, the transition to a modem system of undue influence for the elderly is incomplete. There remain outstanding issues which need consideration before it can be said that there is a comprehensive or logically coherent approach to elders and undue influence.

While recent public attention has focused on disputes concerning the fate of the dead such as the Bristol and Alder Hey organ retention scandals, this paper considers a much less publicised area of dispute which has nevertheless generated a significant amount of case law and potentially affects a much wider proportion of society. The paper looks at conflicts which arise when relatives cannot agree on how to bury their dead, the motives behind such disputes and the factors which influence their resolution. It examines the legal framework which has been applied by courts to date, proposes alternative solutions to this framework and questions the potential impact of the Human Rights Act 1998 on family burial conflicts.

This paper re-examines the Orientalist view that Islamic criminal justice operates without any constitutional protections for the individual. It takes the works of Noel Coulson as representative of the canon and subjects them to critical scrutiny. Rather than mimic Orientalist methods of analysis, the author integrates the views of a contemporary, but traditional Islamic scholar, and demonstrates that an accused receives similar, if not more, protection than in a secular, Western tradition.

From the 1970 decision of Corbett onwards, legal narratives established two modes of categorising complex social identity in relation to sex and gender. These narratives responded to complex identity questions by attempting to simplify identity by limiting it to biological factors or anatomical and psychological factors.

I demonstrate that the law's struggle to ‘make’ sex is reflected to a certain extent by feminism's trajectory, in that feminisms have also attempted to grapple with these complex questions, and often opted for the same simple solutions to the problem of understanding gender, sex and identity. The aim of this paper is to show that some strands of feminist theory, specifically post-structuralist feminist theory, can produce a more progressive and constructive approach to determining sex in their ability to illuminate the complexities of identity. In particular, my aim is to urge those courts that ‘make’ sex to consider these complexities and the implications that flow from placing transgender people into rigid and narrow categories.

This paper drawls on the experience of the authors during a TACIS project in Russia. Part of the project involved assisting Russian legal experts in drafting a law on the reorganisation of companies. The methodology adopted was split into three stages: identification of the concepts of reorganisation in different jurisdictions, the policy and economic context of the proposed reform and examination of the institutional background. At each of these stages it was necessary to discover the underlying cultural, economic and philosophical issues which were formative of laws in each of the five jurisdictions that were examined and offer a menu of possible solutions to the risk-balancing exercise which this area of law presents.

This paper considers the effectiveness of the range of mechanisms open to children in need in order to make local authorities accountable in respect of their duties towards such children under the Children Act 1989, Pt III and Sch 2. By effectiveness, what is meant is either that these mechanisms help to ensure that the relevant duties are fulfilled, or that they provide adequate redress when they are not fulfilled. In simple terms, without any effective accountability, the Children Act 1989 duties count for very little.

This paper critically evaluates the contractual theories of companies and company law which have risen to prominence in recent years. It argues that history reveals as misguided the attempt to depict public companies as essentially contractual in nature, one of the most striking features of the development in nineteenth century Britain of the first body of (joint stock) company law having been its gradual move away from the principles of agency and contract underlying the law of partnership from which it emerged. Against this backdrop, the paper moves on to explore the ways in which theorists have tried, against the odds, to characterise public Companies as contractual and the reasons for their attempting to do so. While it might be apposite to view many private or closely held companies through the prism of contract, the paper argues, public companies and much of company law itself can only properly be understood when viewed through the prism of financial property. Indeed, it suggests, this is implicitly confirmed by the Company Law Review and (paradoxically) by the recent work of corporate governance specialists and financial economists in the US, with its focus on investor protection and the preservation of financial property's integrity, and its emphasis on the crucial role of (public) regulation in these processes. The paper concludes that these property forms are not merely the objects, but the products of regulation and that this has important implications for our understanding of both company law and corporate governance. In making these arguments, it seeks to cast some light on the nature of intangible property, on the differences between contract-based and property-based rights, on the neo-liberal idea of ‘deregulation’, and on the unity and scope of company law as a legal category.

This paper examines the role of retributivism as a principled justification for punishment in the context of the judicial tariff judgments on Myra Hindley and Thompson and Venables. The paper examines the development of retributivist theory from the foundational premise of liberal individualism to its contemporary understanding as a communication of public censure. It is argued that, against the background of legal judgment on tariff issues, retributivism cannot be meaningful in itself. Determining the retributive requirements of justice necessarily involves the construction of a moral narrative made up of both retributivist (retrospective) and consequentialist (prospective) elements.

Following the Gillick case in 1986, it was recognised that mature minors were owed a duty of confidentiality in respect of their medical information. Subsequent cases confirmed that the duty was also owed to non-competent children, including infants, but without explaining the basis for finding the existence of such a duty and its scope. It is particularly unclear when and upon what legal basis a doctor could disclose information to parents when their child wished to keep it confidential. This paper will examine the law of confidentiality as it applies to children, identifying issues which are problematic. Developments in the law of personal confidences which have taken place as a result of the Human Rights Act 1998, and the recognition of Article 8 rights as part of the law, will be reviewed and analysed from the perspective of the duty of confidence owed to children in respect of their medical information. Finally, the paper will offer an explanation of a basis for disclosure to parents which minimises violations of a minor's autonomy.

Repeated comments are made as to the similarity between the common intention constructive trust and proprietary estoppel, but there remains considerable confusion over the precise nature of this interrelationship. The constituent elements of each doctrine bear close comparison and, although their respective modes of operation remain distinct, they may lead to similar results. The recent redefinition of the Pallant v Morgan equity provides an opportunity to probe once more the interrelationship between these doctrines. The Pallant v Morgan1 equity explores the operation of the Rochefoucauld v Boustead2 doctrine in the context of the joint acquisition of land and demonstrates the enforceability of express oral intention based upon a wider range of unconscionablity than the detriment based conduct which dominates both the common intention constructive trust and estoppel.

Almost every leading work on the law of confidence mentions the possibility of a declaration of a constructive trust as a remedy for a claim involving an abuse of confidence. Apart from the Canadian Supreme Court, no other appellate court in the Commonwealth has seriously debated this issue. This paper investigates the legitimacy of the use of the constructive trust in this context.

This paper compares ‘property law’ and ‘family law’ approaches to the problems associated with people who share homes, and examines some of the reform suggestions recently made in this field. The differences between property and family approaches are highlighted by recent endeavours of the Law Commission of England and Wales to devise a specifically ‘property law’ response to home-sharing, and those differences lie at the root of many of the difficulties that the Law Commission encountered in developing its abandoned scheme. It is worthwhile identifying and reflecting on those differences in order to ascertain the sort of home-sharers' problems with which each legal regime can cope, and the sort of solution that each is able to offer.