What, if any, is the distinction between offences and exculpatory defences, between definitional elements and defence elements, between rules and exceptions? In recent years the courts have shown a tendency to attach legal importance to this distinction, even as a matter of substantive law. But ought it to have this importance, and anyway is it usable?

On their face, exculpatory defences often relate to the same kind of question as the inculpation provisions of the criminal law. The offence-creating provision states what must or must not, in general, be done; the exculpatory provision states the limits of the prohibition in particular circumstances. As Professor Paul Robinson expresses it, in a long and learned article on defences, defences ‘refine the wording of the offence’; they ‘provide a more sophisticated account, when needed, of the harm or evil sought to be prohibited’. But the refinements may be expressed in the provision itself, as well as in the defences.

The statute book bears eloquent testimony that the law has been regarded as an appropriate vehicle for protecting the consuming public. The Molony Report, 1962, has borne much legislative fruit and, 20 years later, enthusiasm for legislation in the consumer interest does not appear to be waning.

As law teachers, we are more reticent about our aims than our colleagues in other countries. It does no harm, therefore, to remind ourselves of what we are expected to do. We must start from the peculiar structure of legal education in England and Wales. The sharp division between the academic stage and the professional stage, each in the hands of institutions totally independent of each other, is almost unique to England and Wales. It does not exist in Scotland or in Northern Ireland, where there are no professional schools, and where the Universities share responsibility with the professions for most of the professional training. And it does not exist with such sharpness on the continent of Europe, or in North America. This distinction is the product of the Report of the House of Commons Committee of Legal Education in 1846. That Committee was set up when it was discovered that there was ‘no Legal Education, worthy of the name, of a public nature, in England or Ireland.

Legal scholars over the last 25 years or so have experienced a growing sense of dissatisfaction with the traditional classifications that segment university curricula and legal textbooks. Contract and tort, for instance, are felt to be not so different after all. The intimate historical links between the tort of negligence and the action of assumpsit may be seen as reflecting the realitics more truly than the later doctrinal separation of voluntarily and involuntarily incurred obligations. The growing impact of public law on the exercise of privatc rights, and the interweaving of public and private law that runs through an evcn greater portion of the legal system, cause still more fundamental doubts.

It is thirteen years since the passing of the Trade Descriptions Act 1968 and case law has now largely determined the effect of the major provisions of the Act. There is little doubt statistically that the Act has had its primary impact upon the motor trade, and that the most prosecuted offence is that of the ‘clocked’ car. There is a lot of additional money to be made if a car is sold with a low mileage rather than with a high one. A high proportion of new cars are supplied to companies who keep these fleet vehicles for about two years and then sell them, often through the large motor auctions, whereby they come into the hands of the motor trade. These fleet cars will invariably have travelled in excess of sixty thousand miles. Too many of these cars are handled by several dealers and then are displayed for sale to the public with a mileage shown in the region of twenty to thirty thousand. All that can be said in such a case is that someone, somewhere along the chain of distributors, has fraudulently turned back the vehicle odometer but it is usually very difficult to prove who did it.

Natural law is discussed by almost every modern writer on jurisprudence; but with a few exceptions - of which John Finnis' Natural Law and Natural Rights is the most substantial - the impression given is that it is of historical interest only, that it has in some way been discredited, or at least superseded, by legal positivism. The implicit idea - and here legal positivism borrows from Comte - is that natural law represented some earlier ‘metaphysical’ stage which was then followed by ‘scientific’ legal positivism. This account requires the existence of a natural law theory that dominated juristic and philosophical thinking until the eighteenth century, when it was overthrown by Hume and Bentham. Hume, the story goes, found the decisive argument against the natural law theory; while Bentham created the new theory oflegal positivism. The argument Hume discovered was that ought cannot be derived from is; and this, it is widely supposed, is fatal to all varieties of natural law.

‘Legal reasoning’ and its character have been under discussion for some time: the character, that is, of the reasoning which judges, advocates, solicitors, and others engaged in matters of legal practice and decision must pursue if their conclusions are to claim validity. Do they – or should they – reason on lines dictated by the laws of formal logic, i.e. deductively in the strict sense of that term? Or must we say that judges, and lawyers in general, cannot reach or justify conclusions on deductive lines, and that in fact – and quite legitimately – they use, in establishing and justifying conclusions, a mode of reasoning which is not deductive but has a quite different determinate character of its own? If so, what is that determinate character? Does it provide criteria whereby we may appriase legal argumentation in particular instances as valid or invalid or, at least, as rational or failing in rationality?

If the reader cares to look at the foot of the back inside cover of this journal he will observe the statement ‘Printed by Kent Paper Company Ltd., London and Ashford, Kent’. He should also find if he looks at any other book or periodical that this too will contain the name of the printer, sometimes as with Legal Studies on the back page and sometimes as, for example, with the Law Quarterly Review and Smith's The Law of Theft on one of the front pages. Why is it that the name of the printer appears thus on publications? The answer is not, as perhaps one may expect, self-advertisement by the printer but because the law so requires.

For the past 75 years the Trade Disputes Act 1906 has been regarded as a statute of fundamental importance, both for its provisions and for the fact that it established that the future of labour relations in Britain was to be placed firmly on the basis of voluntary collective bargaining rather than arbitration. This Act is often regarded as an immutable foundation of principle based on well debated theory, but it would be a mistake to ascribe such grandiose origins to this particular statute, for it was the result of a combination of political pressure by the trade unions, the nascent Labour Party and the Liberal Radicals, the retreat of the government from its own Bill for political expediency, and the opposition's concern with other problems. Accordingly the Bill had a most remarkable journey through Parliament and the story is not only interesting in itself but also it illustrates many of the theoretical difficulties that face any reform of the law of trade disputes today.

The article by Jenny McEwan and St. John Robilliard ((1981) 1 LS 267) is entitled ‘Recklessness’, but the argument makes it plain that the authors not only are staunch supporters of the extended meaning now given by the House of Lords (under the leadership of Lord Diplock) to the notion of recklessness, but give their approval also to the extended meaning that Lord Diplock would like to give to the notion of intention. While most of those who are concerned with the criminal law would now like to see its severity alleviated, if only to reduce the pressure on the prisons, Lord Diplock and his two academic allies want to notch criminal liability up a degree (or to keep it notched up) in two respects. They want foresight of probability without purpose to be placed or kept within the notion of intention (instead of within the notion of recklessness), and they want part of inadvertent negligence to be placed or kept within the notion of recklessness (instead of within the notion of negligence).

Both Dr Wilson and Dr Patricia White in another review have made sound and telling criticisms of my efforts in Chapter 2 of Legal Reasoning and Legal Theory at translating legal argument into the technical forms of logic. At the time of writing the book, I was apprehensive about the likely resistance at least of lawyers and law-students to any excessive resort to technicalities of symbolism; it therefore seemed wise to simplify matters by ignoring differenees between propositional logic and the logic of predicates and of relations, thc latter being at least ostensibly the more complex and difficult, albeit more rigorously fitted to the subject matter. I hoped that my perhaps unduly cryptic footnote 5 on page 28 (noted by Dr Wilson at her footnote 29) was a sufficient acknowledgment of the technical difficulties which I was thus sweeping under the carpet. Like Dr White, but unlike Dr Wilson, I took the view that my main point about the deductive character of the arguments I had in view was unaffected by the technical infelicity from a logician's point of view of my resort to the symbolic forms of propositional logic.

There has grown up over the years in the textbooks a considerable body of rules to determine when the benefit of a covenant undertaken by one landowner in favour of another can be passed on to the latter's successor in title. However, no one is now quite sure how these rules are to be reconciled with the widely-drafted but little-litigated section 78 of the Law of Property Act 1925. Although intended, no doubt, to resolve the difficulties over this section, judgments in the Court of Appeal in Federated Homes Ltd v Mill Lodge Properties Ltd have been severely criticised by at least three writers. What I hope to show in this article is firstly that the decision in the case was correct although the authority given for it, partly in the writings of academics and partly in two earlier Court of Appeal cases, is unsatisfactory, since the academics have adopted a false premise and the judgments support the opposite conclusion; and secondly that the body of rules now in the books is not part of the law and ought to be removed from them.

The reply of Professor Williams to our article ‘Recklessness: the House of Lords and the criminal law’ is interesting and vigorous. We continue, however, to adhere to our original view, and attempt below to summarise our objections to what appear to be his main arguments on the law. On the moral issue, we do not consider that Professor Williams has answered the arguments for ‘Caldwell - recklessness’ put forward by Duff. We find the Professor's philosophical position somewhat confusing. Why is it acceptable to convict those who fail to appreciate an obvious risk because of ‘blind rage’ or self-iduced intoxication, but not those whose failure to appreciate it arises from total indifference to the well-being of others?

We should like to make the following points in reply to those charges against us which seem the gravest.

In this article I hope to be able to demolish a number of false assumptions that are to be found in textbooks on Criminal Law. These are the assumption that intoxication (whether voluntary or involuntary) is a ‘defence’; the assumption that, when D raises in evidence that he was intoxicated, special rules come into play; and the assumption that there is a difference between the legal effect of voluntary and involuntary intoxication. Whereas these assumptions may have been justified in the nineteenth century or even a few years ago, it will be shown that recent cases have tended more and more to assimilate the rules on intoxication to the general law, so that by now the differences have virtually vanished. If this is so, it might even be possible to eliminate a chapter from future editions of Criminal Law textbooks, and to save students a very troublesome week of study.

In this article I wish to deal with a problem about the analysis of intention in criminal law. The issue I want to take up has arisen primarily in the context of theft and theft-related offences. However, there is no reason to suppose that it is a problem confined to theft. It could arise in any area of the criminal law which involves intention as constitutive of mens rea.

The general problem can be stated very briefly. How is the law to deal with an accused who intended to perform some act which, if performed with simple intention, would be an offence, when he intended to perform that act only if some contingency occurred? The case law on theft demonstrates that, far from being an arcane question, this is a live issue. This is for the simple reason that a great many intentions are intentions of this conditional nature.

As an academic discipline in the United Kingdom, European Community law is a relative newcomer. I belong to the last generation that learnt its Community law on the hoof, through teaching it to others or practising it. I was, though, very fortunate in serving two apprenticeships, one, in the theory of the subject, under the late Professor J. D. B. Mitchell as a Lecturer in the Centre of European Governmental Studies at the University of Edinburgh and the other, in its practical application, as Legal Secretary to Sir Jean-Pierre Warner (as he became after his appointment to the Chancery bench of the High Court) when he was Advocate General at the Court of Justice of the European Communites. John Mitchell was an enthusiastic admirer of the Court of Justice and deeply learned in its ways; and one topic among many that interested him was the role of the Advocate General, a role it fell to J. P. Warner to show that a lawyer from this side of the Channel could fill with distinction. It was with my debt to those two masters very much in mind that the subject of this lecture was chosen.

The English choice of law rules for tort cannot be stated with any certainty. The most likely version, as a result of Chplin v Boys, is a double actionability rule, with provision for a proper law or ‘interests’ approach in exceptional cases, but if that is the law there is little cause for satisfaction. The purpose of this article is to consider what shape any future reform ofthe law in this area should take, confining the discussion, however, for reasons of space, to torts wholly committed within a single country.

Where a contract of employment is brought to an end during, rather than at the end of, a working period, the question arises of the employee's right to be paid for the part-period worked. If the termination has come about because of the employer's breach of contract, it is not difficult to see that the employee will at least have a claim for damages for breach, which must take into account what the employee has lost by not being allowed to work up to the end of the period in question.