The Old Hall is full tonight. Those outside who turn and see the line of festal light will not know that the windows are illumined by the brilliance of the company within. This audience is indeed most intimidatingly distinguished. These facts do proper honour to the memory of Francis Mann. He would have welcomed too the happy coincidence, given that Lady Fox is in the chair, that we also have the opportunity to celebrate the appointment of one of this century's greatest judges to the Order of Merit. Three such appointments were announced today. I hope we are allowed to think that Lord Denning has succeeded to the place of Sir Isaiah Berlin, one champion of liberty and human dignity following another.

As lawyers concerned with the regulation of economic activity, we applaud the recognition in Professor Charles Goodhart's recent Chorley lecture that much of the ‘law and economics’ of the past quarter-century has involved ‘too much one-way traffic’. If the field of law and economics has indeed largely, as Professor Goodhart suggests, consisted of a process of intellectual imperialism, specifically of the colonisation of law by economics, we consider it important to reflect on the reasons for this, and to make some suggestions to improve the collaboration between the two disciplines. In brief, we suggest that this interaction has been bedevilled by its tendency to reproduce the worst aspects of formalism in each discipline.

Professor Goodhart shows that the bulk of law and economics has consisted of a fairly unthinking application of standard neo-classical economic assumptions to legal phenomena which have themselves typically been conceived in conventional doctrinal terms.

X (minors) v Bedfordshire County Council is by far the most important decision on the liability in negligence of public authorities since Anns v Merton London Borough Council. These two authorities, along with Dorset Yacht Co v Home Office, furnish the ground rules for such actions. The leading judgment in X v Bedfordshire CC, in which all his brethren concur, is given by Lord Browne- Wilkinson; the only other judgment being given by Lord Jauncey. The common thread running through this trilogy of cases is the emphasis on the significance of the element of discretion in the exercise of the statutory functions of a public authority: ‘Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed’.

The general theme of this conference - legal change and legal scholarship across Europe - reflects a growing interest of British academic lawyers in the increasing European dimension of law. Indeed, the new dynamics of the unification movement is one of the most salient features of the legal development of the recent past. It has many aspects, including EC legislation and the drafting of restatements and of general principles of law, which I will shed some light upon in the first part of my paper. I will then venture an explanation for the renascence and the new appeal of the unification movement (section II) before turning to a more specific discussion of the hamonisation of private law in Europe (section III), the significance of general principles of law for its unification (section IV), and the restatements of contract law and their role in the process of integration (section V). For the sake of clarity, I should like to premise that harmonisation and unification, although technically having different meanings, will be used interchangeably here.

This paper advances and defends a ‘constitutionalist’ perspective on the Europeanisation of private law. The first introductory section places the Europeanisation of private law in relation to current debates and then proceeds, in section II, to its practical implications with the help of identifying a significant cluster of conflict. The main part of this paper, however, is concerned with the theoretical issues of the analytical background and normative basis of the constitutionalist perspective.

‘Doctrine’, from the legal point of view, is often understood, in France at least, as a collection of works. For example, Le Petit Robert defines it as ‘the entirety of legal works whose aim is to expound or interpret the law (as opposed to legislation and judicial decisions)’. This definition is not erroneous, but it only captures one aspect of the matter. If doctrine were only a collection of works, it would be nothing more than a university or law court library. However, it is clearly much more than that. Likewise, it is clear that poetry cannot simply be reduced to a huge collection comprising the works of all French poets. Beyond the production of doctrine (or poetry) lie the workings of doctrine (or poetry), that is to say the persons who devote themselves to it. It is at this point that one encounters other meanings of the term.

Schemes for compensating injury which operate alongside each other call for important policy decisions to be made concerning their inter-relationship. Are they to take account of one another and, if so, to what extent? These issues can arise in a variety of contexts. Within particular regimes they are the concern, for example, of the overlapping benefit regulations in social security law and the rules relating to contribution in insurance law. However, the focus of this article is upon personal injury litigation. It examines the policy reasons which have been used to justify the different results reached by the law when faced with the problem of ‘collateral benefits’ received by an accident victim also seeking damages. Typically, these benefits are received from the state, or an employer, or an insurer.

The need for certainty about the scope of the court's jurisdiction to interfere with a mortgagee's right to possession of a dwelling house following default by the mortgagor needs little emphasis. Much is at stake, and unless the mortgagor can plead some substantive defence such as undue influence, the mortgagor faces losing what is usually the family home. Until relatively recently, this certainty has existed and the extent of the court's jurisdiction to control or deny a mortgagee's possessory rights has not been in issue, the focus being instead on the narrower question of how the court's recognised powers should be exercised. However, a number of recent decisions, including Cheltenham and Gloucester plc v Krausz; Cheltenham and Gloucester plc v Booker and Bristol & West Building Society v Ellis and Ellis, have prompted more fundamental questions.

In 1629 Jones, the registrar to the court of the Bishop of Gloucester, suffered so from the smoke emanating from a nearby brewhouse that he brought an action in nuisance before the Court of Kings Bench. At the time, as water was unsafe to drink, beer and ale were staple beverages. Inclined to reject the claim, Whitelock J pronounced that ‘what is necessary for the commonwealth can never be called a nuisance to any private person.’ His colleague on the bench, Dodderidge J, was more cautious, concluding that, had the brewery been a long-established enterprise, no action would have been available, as one who comes to live near an existing brewhouse must take it as one finds it. However, where - as was true of this case - the brewhouse was a relatively new operation, the matter was less clear.

It is difficult to capture, even metaphorically, the nature of law as practised in the criminal appellate courts when considering the fundamentals of the subject -the basic principles of mens rea. If law is treated metaphorically as a science, allowing, as Lord Denning suggested, its principles to be revised by the demands of justice, in the way that scientific principles are revised by the demands of experimental data, then there should at least be a coherent development of the subject where identifiable principles of law are matched to a more sophisticated grasp of the requirements of justice.

Of course, such a formal image is less fashionable today than it once was, and a more ‘critical’ perspective of legal materials may be taken. But here, too, we lack a suitable image to convey the current state of the law.

The ability to identify arrangements affecting property as falling within one or other of the recognised categories of proprietary interest, for example tenancies, licences or easements, and as resulting in certain consequences, is not only desirable, but is in the interest of certainty for all concerned essential. If an occupant of land is a tenant, certain known consequences follow: for example, the occupant has statutory protection which would not be the case were he merely a licensee. Again, if I cross your land merely by your permission, my privilege may be withdrawn at any time, whereas if I have an easement to do so, you cannot stop me. Arrangements which do not behave according to the rules, by appearing to create one type of interest while possessing the attributes of another, either undermine the recognised rules or are exceptional cases which must be acknowledged as such.

In 1970, when commenting on the law's progress in dealing with negligently inflicted psychiatric damage that does not result from physical injury (hereinafter ‘psychiatric damage’), Windeyer J delivered a famous ‘backhanded’ compliment, by observing ‘[l]aw, marching with medicine but in the rear and limping a little’. At the risk of straining that metaphor by re-casting it into a medical perspective, the purpose of this article is to provide a diagnosis and prognosis as to the current state of that legal limp. It would conclude: ‘legal patient now seems docile and uncharacteristically compliant, makes right noises but limp no better. Query whether symptomatic of more serious problem requiring radical surgery?’

This rather negative assessment is acknowledged to be somewhat at odds with a more optimistic prognosis that could be derived from recent trends that seem generally to signify a growing ditente between law and medicine.

To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law.

In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.

Racism has climbed the political agenda at national, European and international levels. Reports from national and international non-governmental organisations (NGO’s) and inter-governmental organisations have focused considerable attention on racism and xenophobia and document an increase in racism, xenophobia, anti-Semitism and race-related activities. As racism has climbed the political agendas, so there has been a substantial increase in the number of national, European and international legal instruments devoted to it. In particular, race-related restrictions on freedom of expression (‘hate-speech’) are increasing and seem likely to continue to do so. Such restrictions give rise to controversy in terms of constitutionality, legal policy and consistency with European and international human rights law. There are also differences of views between the policies of NGO's on restrictions on racist speech.

This article describes an empirical study that was undertaken to see whether lawyers possess the statistical and, more particularly, probabilistic understanding that they need for their professional duties. Their earlier training in mathematics might have been expected to provide them with the relevant understanding, but was found to be wanting. The implications for legal decision making are discussed, and recommendations are made for preparing lawyers with the necessary skills.

In Hungary, a comprehensive amendment to the 1949 Constitution took effect on 23 October 1989. According to the new preamble of the considerably amended Constitution, the revision was needed ‘in order to promote the peaceful political transition into the rule of law realizing the multiparty system, parliamentary democracy and social market economy’. This amendment changed not only the state organisation, but also the regulation of human rights.

The intention of distancing itself from the historical period of the past 40 years is expressed in para 1 of the amended Constitution, which proclaims that Hungary is a republic. With this, Hungarian constitution-making went back to a number of legal institutions incorporated in Act I of 1946 which is on the state form of Hungary adopted by the National Assembly, formed after the frst free elections after the Second World War.

In January 1995, during the furore over the murder conviction of Private Lee Clegg, the Home Office announced a review of the law of murder as the House of Lords had declared it to be. In March 1996 the Report of the Inter-Departmental Review of the Law on the Use of Lethal Force in Self-Defence or the Prevention of Crime was completed and, if not exactly ‘published’, then at least available to interested members of the public. The review was primarily concerned with the possibility of enacting a partial defence to murder, whereby a soldier or policemen who had used excessive force resulting in the death of a criminal suspect would be convicted only of manslaughter, but the Home Office also examined the possibility of giving statutory authority to the internal Army and police regulations upon the use of firearms, in order to clarify the concept of ‘reasonable force’. In the end, however, the Inter-Departmental Review (hereafter ‘the Review’) proposed no change to the law of murder nor of voluntary manslaughter, and neither did it propose any method of clarifying the concept of ‘reasonable force’.

In 1977, the Council of the European Community unanimously adopted Directive 77/187/EEC on the approximation of laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses, or parts of businesses. The first half of the 1970s had witnessed an ever increasing incidence of business restructuring throughout the territory of the Community. Concern over the possible impact of such structural changes on affected employees prompted the introduction of the Acquired Rights Directive, which, according to its preamble, had the primary purpose of providing ‘for the protection of employees in the event of a change of employer, in particular to ensure that their rights are safeguarded’. In the event that a transfer of an undertaking results in a change of employer, the directive provides for the automatic transfer of the employment relationship from the old employer (the transferor) to the new employer (the transferee).

The role of independent institutions, the relationship between independence and accountability, and the meaning and significance of these concepts in terms of democratic ideals, are issues that constitutional analysis of modem government can hardly avoid. The institutions and practice of government audit provide concrete illustrations of the complexities and dilemmas involved in such analysis.

Auditors themselves conventionally distinguish internal from external audit. A widely accepted definition is that external audit means the examination of accounts and other activities, conducted from outside an organisation by an independent review body for the purpose of holding managers to account. In contrast, internal audit takes place within an organisation, to review accounting and other operations as a service to management. An internal audit unit normally operates separately from those within the organisation who are responsible for the activities under review.