Much has often been made of Maine's striking opening sentence to his Ancient Law, in which he states that the most celebrated system of jurisprudence in the world, the Roman law system, ‘begins, as it ends, with a code.’ It is a remark which serves well those who argue that law has evolved as a predominantly written culture. Yet, as Maine points out, the publication of the Twelve Tables (these traditionally being regarded as the foundation of Roman law) ‘is not the earliest point at which we can take up the history of law.’

‘The principle of elegance’ means that the law should be internally consistent with itself, and while it is in no sense an overriding principle it is preferable that rules should be logical rather than illogical within the parameters of the system. The principle cannot of course be an absolute one for there is nothing wrong with inelegance if the state ofaffairs comes about for good reasons of pragmatism or policy. However a consequence of the principle is that where in practical terms the rules of law become inelegant or dislocated, the situation should not be resolved by covering up the disjunction that has occurred by a bland generalisation which hides what is truly happening. The situation arises because of the continual struggle between principle and practical justice, and where a gap opens between the two, the principle of elegance suggests (but does not require) that the problem should be resolved, usually by refining principle to take account of variations of practice and developments of theory. In this way the cases and principles derived from them are re-interpreted or re-defined so as to re-establish a consistent system.

A contract which is believed to be legally binding sometimes turns out to be unenforceable by one or both parties because of some defect at the time it was made. An agreement may be affected, for example, by mistake; by uncertainty; or by the incapacity of one of the parties. Often preparation or performance has already begun, and the question then arises as to how the relationship – which was thought to be governed by the agreement – is to be adjusted. Where one party has received what he was promised under the agreement there exists the possibility of a claim against him in restitution. A difficulty in many cases of this kind is that the same factors which render the contract unenforceable also provide an argument against allowing a restitutionary claim. However, this is not always the case; and even where it is, there may be some justification for permitting recovery in restitution whilst refusing an action in con tract.

This paper discusses the role of theory in legal education. It builds on an exchange between the author and Neil MacCormick and upon the discussion of the place of theory in legal education in William Twining’s symposium. The paper will move from some fairly concrete issues about the place of jurisprudence in the law curriculum towards some wider problems about the place of theory in legal studies and, finally, will consider some issues about the relationship between theory and jurisprudence. On the way it discusses the relationship between theory and philosophy in a manner which focuses upon the controversy about the foundational claims and pretensions of the theoretical and philosophical enterprise.

Even the casual observer of trends in estoppel jurisprudence may have noted that discussions of promissory estoppel have recently become less ubiquitous in reported decisions. What may have been less apparent, but of no less significance, is that during this period there has been an upsurge of interest in estoppel by convention as a basis for judicial action. Although this doctrine was once referred to as being ‘as old as the hills’, it had languished in judicial and academic obscurity for many years prior to current interest. More recently it has been hailed as ‘an essential arrow in the quiver of every commercial counsel’. This phenomenon has occurred against the backdrop of a proliferation of so-called ‘equitable’ and proprietary estoppels, and judicial and scholarly exasperation at the disorder into which estoppel issues generally appeared to have fallen.

The issue of the admissibility of improperly obtained non-confessional evidence in criminal proceedings has been the subject of considerable academic discussion. However, much of the discussion in England has been confined to an exploration of the deficiencies and internal inconsistencies of the English law in the area. In particular, the House of Lords decision in R v Sang has been subjected to intense scrutiny and criticism. Little has been written which examines the theoretical issues associated with the problem of improperly obtained evidence, with view to laying down foundations for a new approach. It is this task which I seek to undertake here. First, it will be demonstrated that the major Anglo- American legal systems have all abandoned rules ofmandatory inclusion and mandatory exclusion of improperly obtained evidence in favour of more flexible positions whereby such evidence is to be admitted in some circumstances but excluded in others. This suggests that rules of mandatory inclusion and mandatory exclusion have been perceived to be undesirable.

After years of debate, and pages of parliamentary reports, the House of Commons has agreed in principle to allow the televising of its proceedings, both in the Chamber and in Select Committee hearings.’ The purpose of this article is to consider the application of parliamentary privilege to the broadcasting of Parliament by radio or television. The issue of parliamentary privilege arises because of the absolute privilege’ of freedom of speech for Members, which enables them in the course of ‘proceedings in Parliament’ to say or do something which, had it been said or done elsewhere, could have given rise to civil or criminal liability by the person concerned. Absolute privilege exists because it is of outstanding public importance that Members should be able to speak their minds, and this outweighs any consequential harm that may be suffered by an individual or the State. Examples of the use of the protection of absolute privilege are the making of a statement that appears to be defamatory, and the oral commission of one of a variety of criminal offences.

Parliamentary election law in the United Kingdom has been the subject of much review in Westminster and Whitehall over the past few years. The last Parliament, 1983-87, extended the franchise to British citizens temporarily resident overseas, and allowed for a greater use of postal and proxy voting. The amount of a parliamentary candidate's deposit was increased from the 1918 figure of £l50 to £500, and the threshold below which it is forfeited was reduced from 121/2% to 5% of valid votes cast. The law relating to the work of the Boundary Commissions was consolidated, and most recently the House of Commons Home Affairs Committee has reported its recommendations upon redistribution of seats, including among them a proposal for a stabilisation in the number of constituencies at its present level of 650.

The traditional view of the scope of the tort of private nuisance is that the action protects a person's right to the use and enjoyment of land, and therefore only a person who can show that he has an interest in land is entitled to sue. What is a sufficient interest in the land affected, however, has never been free from doubt. Whilst freeholders and lessees in possession may certainly sue, there is doubt as to the entitlement of certain licensees, such as members of the family of a freeholder or lessee. In the recent case of Deuon Lumber Co Ltd u MacNeill, the New Brunswick Court of Appeal held, by a majority, that the children of a freeholder who had been adversely affected by dust from the defendant's adjacent cedar mill were entitled to sue in private nuisance, for ‘even though the children lacked any legal title to the property, they had a right of occupation sufficient to support an action on their behalf for damages for any unreasonable and substantial interference with their lawful use or enjoyment of the family residence’.

Although the law relating to common mistake has engendered a plethora of conundrums, many problem areas have in fact been well-traversed in the literature. The present article does not seek to re-cover such welltrodden ground, but attempts, instead, to suggest a different and more systematic approach that would effect a merger of the common law and equitable branches of common mistake into one coherent, doctrine.

Duty of care is in dire straits. Until recently, Lord Atkin's ‘neighbour principle’ was ‘the very foundation of the law of negligence’. It was a simple, all-purpose test for the existence of a duty of care. However, times have changed. There has been a loss of confidence in the neighbour principle. Its suitability as a general test for duty of care has been questioned, in a way that would have been unthinkable only a decade ago. In 1970, it was still possible to say that the principle ‘ought to apply unless there is some justification or valid explanation for its exclusion’. By 1984, apostasy had set in, and it was said that the principle ‘has long been recognised as not intended to afford a comprehensive definition’ In 1978, Lord Wilberforce attempted to make the principle more workable by marrying it to policy considerations in a two-state test for duty. Even this modified version of the principle has now fallen out of favour. In 1987, it was said of Lord Wilberforce's two-stage test that it ‘is not to be regarded as in all circumstances a suitable guide to the existence of a duty of care.’

Any project to draft a criminal code has to compromise between the desirable and the politically possible. It may be that the draft now produced by the Law Commission, or something like it, is the best that can safely be backed, though the contrast between it and the American Law Institute's Model Penal Code (which also had to take account of political realities, and yet has been adopted in many States) is a painful reflection on our stodginess. It is hard to avoid the impression that the Law Commission have been too cautious in their approach, leaning too much in favour of bare restatement of the existing law and against modifications that experience or reflection show to be necessary.

The idea that psychoanalysis might be of use in the study oflaw and legal activity is by no means anything new. At the beginning of this century, the Russo-Polish jurist Leon Petrazycki proposed a theory of legal psychology, arguing that law, as an intuitively intelligible component of the human mental process, is in essence constituted by individual feelings of moral obligation and responsibility. Around the same time, psychoanalytical theory was beginning to make a slight impact on American and European jurisprudential thinking. This impact was to become all the more significant when, in the 1930s, Thurman Arnold and Jerome Frank presented arguments about the nature oflegal reasoning, and the roles of both academic lawyers and judges, which were very clearly founded upon broad interpretations of psychoanalytic ideas and concepts. In the continental tradition, Hans Kelsen, though in his early work drawing a distinction ‘between pure legal theory and psychological-sociological speculation,’ nevertheless attempted on occasion to conceive of the sovereignty of the state in Freudian psychoanalytic terms

In a previous article in Legal Studies I suggested a general framework of rules for analysing problems of restitution which arise from ineffective transactions. It was explained that normally a claim should be available to a party who has performed his part, usually based on mistake or failure or consideration, or on ‘policy’ grounds. A benefit to the recipient of goods and services will usually be shown by the fact that in making the agreement he requested the performance Problems may arise, however, when the factor which renders the contract unenforceable also provides an argument against allowing a claim in restitution. One problem which arises frequently with goods and services is that the factor which vitiates the contract makes it difficult to show a benefit. For example, when the defendant mistakes the nature of the goods which he is purchasing, it may be impossible to say that he requested them for the purpose of showing they are of benefit to him.

A trustee who has accepted trust obligations can retire from his trusteeship in four ways: (i) by virtue of the trust instrument which expressly or impliedly authorises him to do so; (ii) under s 36 of the Trustee Act 1925; (iii) under s 39 of the Trustee Act 1925 and (iv) under s 41 of the Trustee Act 1925, ie by permission of the court.

In regard to retirement under s 36 which provides for non-judicial appointment of new trustees, it is widely accepted that a trustee may so retire only by the valid appointment of another trustee in his place; retirement without replacement is only possible under s 39 and that would require consent to the retirement. An examination of the relevant case law reveals that it assumes rather than establishes the widely accepted view; but more importantly the effect of legislative changes culminating in the present s 36 removes the most probable reason for the view so that the formulation for it has, so to speak, disappeared.