The late Professor Birks made an immense contribution to the study and development of the common law in devising his taxonomy, derived from the Roman classification of Justinian's Institutes. The utility of the taxonomy has always been the subject of controversy and its value has been increasingly questioned since his untimely death. Some of the criticisms are undoubtedly valid but it is seriously arguable that the pendulum has swung too far in the other direction. This paper seeks to highlight the common abuses of the taxonomy and demonstrate that, even taking account of its limitations, the taxonomy continues to be a useful device for our study and development of the common law.

The purpose of this paper is to examine a new work on legal reasoning by two American jurists whose aim is to ‘demystify’ it. The paper will not dispute the authors' central thesis that the existence of special forms of reasoning in law is false, but it will argue that a social science epistemologist would find their analysis at best inadequate. It will be argued that legal reasoning is not just reasoning from and about rules; it is also reasoning about facts and about the construction of factual situations. Consequently, it is vital for anyone wishing to have a serious understanding of how lawyers reason to have a familiarity with how social scientists, and indeed natural scientists, reason about fact. Such reasoning certainly involves induction, deduction and analogy but these methods are by no means adequate as an epistemological framework; schemes of intelligibility and paradigm orientations are equally important. If there is one paradigm orientation that is special to certain disciplines like theology and law, it is the authority paradigm, an orientation that must be distinguished from an inquiry paradigm. The problem with works by legal philosophers on legal reasoning is, it will be implied, that they are often conducted from within the authority paradigm and that this, in the end, prevents any demystification.

Law has the potential to be one of the humanistic disciplines that is an integral part of general culture. But it is not usually perceived in that way by non-lawyers. As the Society of Legal Scholars celebrates its Centenary, its members are under pressure to broaden the audiences of legal scholarship. Setting this expectation in the context of the movement to encourage all academic disciplines to place greater emphasis on ‘public understanding’ and ‘public engagement’, this lecture considers the what, why and how of confronting this challenge, recognises some obstacles and constraints, and suggests how the Society, law schools and law publishers might contribute to this enterprise.

This paper examines, in the context of complicity as an example, how and why scholars theorise about the basis of the rules governing criminal responsibility and about the practice of the courts in imposing such responsibility and asks what sort of ‘impact’ of legal scholarship should be regarded as desirable or achievable or successful or should or can be sought. The methods and reasons of such scholars may include the habit and desire of providing explanations of the outcomes reached by the courts in particular difficult situations and may also involve developing justifications or critiques of them based on, or influenced by, theories of moral philosophy. This may also include a desire to influence future outcomes ‘in practice’ in related factual scenarios in a predictable and ‘just’ fashion consistently with the preferred theory. The paper examines whether the language in which (a contender for) a satisfactory explanation of a theory of derivative responsibility, expressed in terms inspired by George Fletcher, of complicity in wrongful even if excused conduct, can be (or has been) satisfactorily transposed into one expressed in language thought to be more amenable to the courts (such as ‘procuring an actus reus’). Case-law in this area is examined to see whether this sort of transposition does more harm than good and to what extent compromising or adapting an expression of principle in this manner may lead to unintended consequences. An alternative conclusion is also examined, which is that however carefully one formulates rules or statements of principle, unintended consequences will always or often follow and that this may not necessarily be a bad thing. Indeed, the ultimate conclusion may be that whilst having a beneficial influence on the substantive law may be a desirable impact which legal scholarship should aspire to or may be justified by, to adapt the words of John Gardner in a somewhat different context, having that impact should not be confused with trying to have that impact, since often it is the trying which is the problem (Offences and Defences (Oxford University Press, 2007) p 279).

Socio-legal scholarship in contract maintains that the classical law is ineffective in regulating commercial agreements, and that the law should be more attentive to the role played by relational norms of cooperation and implicit understandings in business dealings. This paper explores the extent to which the parties' own narratives about their business relationship, as presented to a judge through testimony, can be both a source of information to judges about how business is conducted and a corrective to the classical contract law mindset, which favours the operation of individualist over cooperative norms in the resolution of commercial disputes. The paper examines a body of ‘law and narrative’ scholarship which underlines narrative's power to subvert traditional legal norms. It also considers some of the difficulties with relying on party narratives as evidence of the implicit dimensions of commercial agreements, but concludes that such narratives may have a role to play in the development of a more relationally constituted contract law and are thus worthy of closer scrutiny.

Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 has often been derided as a Cinderella provision, but during the last few years, this has started to change. This paper examines how Art 14 has developed and how it may live up to its potential as a powerful non-discrimination principle. The case-law developments in relation to the ‘ambit’ requirement in Art 14, the development of indirect discrimination case-law and the approval of positive action, all point to a more substantive conception of equality, which offers protection to disadvantaged and vulnerable groups.

This paper explores, through illustrations from the law of contract, the important central theme to the effect that the rules and principles, which constitute the doctrine of the law, are not ends in themselves but are, rather, the means through which the courts arrive at substantively fair outcomes in the cases before them. The paper focuses on the concept of ‘radicalism’, which relates to the point at which the courts decide that it is legally permissible to hold that a contract should come to an end because a radical or fundamental ‘legal tipping point’ has not only been arrived at but has, in fact, been crossed. It explores the role of this concept as embodied in the doctrines of frustration, common mistake, discharge by breach, as well as fundamental breach in the context of exception clauses – in particular, how ‘radicalism’ with regard to these doctrines can be viewed from the (integrated) perspectives of structure, linkage and fairness. The paper also touches briefly on linkages amongst the doctrines of economic duress, undue influence and unconscionability, as well as the ultimate aim these doctrines share of achieving fair outcomes in the cases concerned.

Legislative restrictions on the sale of organs, gametes and surrogacy services are often seen as having no basis other than mere prejudice or taboo. This paper argues instead that they can be read as instances of a broader decommodification of healthcare provision established in Britain with the creation of the NHS in 1948. Restrictions on the marketisation of medicine were justified by Aneurin Bevan, the founder of the NHS, and by Richard Titmuss, one of its chief academic defenders, in distinctly utopian terms. On this vision, the NHS would function as a utopian enclave prefiguring an idealised non-capitalist future. This commonsense of post-war medicine was fatally destabilised by fiscal crisis and social critique in the 1970s. Influential commentators like Ian Kennedy developed an anti-utopian account of the real NHS and proposed legalistic and market-based reform. These reforms sought to dissolve the enclave, assimilating medical work and the NHS as a whole to broader systems of accounting and accountability. Insofar as they have been realised, they achieve a recommodification of medicine in Britain. The paper concludes by examining recent studies of the ‘new NHS’, which see in the latter-day idealisation of market processes a novel form of self-denying utopianism.

Should the doctrine of transferred malice operate in the law of tort? Although there has been little written on this topic in England and Wales, it appears generally to have been accepted by academic commentators that the answer to this question is in the affirmative. Consequently, when the High Court in Bici v Ministry of Defence applied the doctrine to the tort of battery, most regarded this as unremarkable. This paper, however, argues that this position is mistaken: that the doctrine of transferred malice has, and can have, no place in the law of tort. The paper also examines the nature of intention operative in the law of trespass and its relationship with recklessness.

The use of pharmacotherapy (more emotively known as chemical castration) is the use of drugs to treat and help manage the risk that sex offenders, and in particular paedophiles, pose to society. Due to the increased climate of public fear of this risk, the government recently published a Review of the Protection of Children from Sex Offenders (the Review). This Review, published in June 2007, sought to explore how the protection of children could be improved and how greater reassurance to the public on the management of sex offenders could be provided. The Review makes several proposals with regard to managing high-risk sex offenders. Amongst the list of 20 actions, the trialling of polygraph tests, satellite tracking technology and the use of anti-libidinal suppressants is included. This paper examines the latter, pharmacotherapy, and assesses how concepts such as dignity and consent underpin the human rights' implications of its use. The paper will also assess the recent changes to mental health legislation and evaluate whether such treatment for incompetent or competent offenders is a viable option given the UK's obligations under the European Convention on Human Rights.

The Comedy of Errors, always loved on the stage, has long been deemed less substantial than Shakespeare's ‘mature’ works. Its references to private and public law have certainly been noted: a trial, a breached contract, a stand-off between monarchical and parliamentary powers. Yet the play's legal elements are more than historical curios within an otherwise light-hearted venture. The play is pervasively structured by an array of socio-legal dualisms: master–servant, husband–wife, native–alien, parent–child, monarch–parliament, buyer–seller. All confront fraught transitions from pre-modern to early modern forms. Those fundamentally legal relationships fuel character and action, even where no conventionally legal norm or procedure is at issue. ‘Errors’ in the play serve constantly to highlight unstable and shifting relationships of dominance and submission. Law undergoes its own transition from feudal–aristocratic to commercial forms. Through a theatrical framing device, it thereby re-emerges to remind us that those dualisms, even in their new incarnations, will remain squarely within law's ambit.

The paper provides a critical survey of certain methodological debates in the field of legal philosophy in order to assess their implications for legal research in general. Underpinning this survey is a concern to establish the independence and integrity of both legal practice and legal research in the light of the risks posed by preponderant forms of instrumental rationality. Thus, Brian Leiter's recent call for a ‘naturalised’ jurisprudence is criticised for the instrumentalist basis upon which he claims to privilege forms of legal research apparently ‘continuous with’ the natural and empirical social sciences. As against Leiter, it is argued that there are in fact a range of distinct but interrelated modes of legal research. In this respect, the work of HLA Hart is interpreted as an example of a distinctively theoretical mode of inquiry into law. In addition, an account of the nature of a distinctively practical mode of legal inquiry is developed from a critique of Ronald Dworkin's excessively ‘theoretical’ reading of the interpretive character of legal practice. A constitutive practical feature of both modes of inquiry is their capacity to take up a certain distance from any exclusive concern with instrumental or pragmatic action.

The origins of the cooperative movement can be traced to the Rochdale Society of Equitable Pioneers in 1844, from which similar institutions emerged in Central Europe, the North American continent and the rest of the world. Modern credit unions evolved from these small cooperative societies and have developed into mainstream providers of financial services in many jurisdictions. However, credit unions in the UK have not made a similar impact. There are several factors that have limited their growth – an inadequate legislative framework, an ineffective credit union regulatory system, inappropriate development models, an over-reliance on state subsidies and a disunited movement. The aim of this paper is to re-examine these factors in light of the level of political support provided by the government since 1997.

This paper explores the relationship between religion and sentencing. It considers what problems may arise when a judge fails to take proper account of a defendant's religious beliefs at the sentencing stage, or takes improper account. It highlights the need for more guidance to be given to judges in order to ensure greater consistency and fairness in sentencing outcomes.

Recently, the Law Commission has indicated that it will be considering the abolition of the crime of high treason. The purpose of this paper is to analyse the interesting legal history of one of the offences which go to make up high treason – violating the sovereign's wife or his eldest unmarried daughter or the wife of his eldest son and heir – and to argue for its abolition.

This paper offers a critical perspective on how immigration control regulates the family lives of British residents and nationals of migrant descent. Family migration is problematic for a government determined to restrict long-term immigration to the skilled. The extended or ‘corporate’ family is particularly problematic because it also causes the reproduction of forms of family life that are regarded as oppressive and a barrier to cohesion. Policies have tended to minimise these forms of migration, and recent changes and proposals are consistent with that. The result is the increased marginalisation or exclusion of some migrants and pressure on migrant family life to conform more closely to majority norms.

The enactment of the Charities Act 2006 is widely viewed as one of the most momentous events in the recent history of English charity law, and the impact of the Act on the pre-existing law is still being debated. This paper inquires into the operation of the Act within the religious sphere. It seeks to explore the basis upon which charitable recognition was accorded within this sphere before the Act and to assess how far the law that was previously in force has been preserved, modified or rendered inoperative by the provisions of the Act. Three fundamental dimensions of the legal regime governing religious charities are especially relevant to this inquiry. The first dimension encompasses the elusive quest for the meaning of religion in the charitable sense. The second focuses on the long-standing requirement that religious purposes must be beneficial to the public in order to be charitable. The third is concerned with the human rights implications of conferring or withholding charitable status within the religious domain. Each dimension is examined in turn with a view to providing an insight into the complexities and difficulties inherent in the pre-existing law and the extent to which these have been addressed by the reforms contemplated by the Act.

In this paper, we argue that clients who purchase commercial sex from victims of forced prostitution should be strictly liable in torts towards the victims. Such an approach is both normatively defensible and doctrinally feasible. Fairness and equality demand that clients would compensate victims, even if one refuses to acknowledge that purchasing sex from a prostitute who might be a victim is a faulty behaviour. Clients profit from the activity of purchasing commercial sex, so fairness demands they will bear the costs they impose on victims who are unable to refuse the contact. Strict liability will bring about desirable distributive results along the lines of sex, class and race. Imposing strict liability will ensure consistency of the English law of trespass and it is supported by several instrumental considerations.

Such strict liability could be grounded in battery, despite the appearance of apparent consent by the victim to sell sexual services to the client. This is so for two main reasons. First, the extreme coercion operated on the victim renders her consent void so that an innocent third party cannot rely on the appearance of consent. Secondly, the client should be considered as having constructive notice with respect to the trafficker's coercion. Our argument is supported by – but does not hinge upon accepting – the insight that the client's behaviour is ultimately faulty.

Although nanotechnologies create new and innovative opportunities in many industrial and technological sectors, they present a number of regulatory challenges. There is evidence to suggest that some nanomaterials may pose risks of harm to health and the environment. The nature of these risks, however, is profoundly uncertain. In the first part of this paper, I show that legislative provisions currently used to regulate nanomaterials are ill-equipped for this purpose. In light of this, I proceed in the second part to examine how risks from nanomaterials ought to be regulated. Using what loosely may be described as a cost–benefit analytical framework, I appraise alternative regulatory options and draw initial conclusions about which is likely to prove the most cost-effective.

The compatibility of anti-terrorism control orders with Arts 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was the subject of litigation culminating in three House of Lords' judgments in late 2007, and a further case on Art 6 will be argued before a nine-panel House of Lords in March 2009. To date, the litigation has required important modifications to be made to how control orders work, but the regime provided by the Prevention of Terrorism Act 2005 remains essentially intact. The government therefore claims that control orders strike an appropriate balance between the interests of liberty and security. This paper critiques the role played by the courts in challenging control orders under human rights laws. It argues that it is necessary to incorporate the right to freedom of movement into UK law in order to allow a proper balance between liberty and security to be effected by the courts.