It has often been asserted that English private international law has no doctrine of evasion of the law. It is true that English law has never developed a general doctrine, like the French one of fraude a la hi, to deal with cases of evasion. Nonetheless, evasion of the law has been recognised as a problem in at least some areas of private international law, and an increasing number of specific anti-evasion measures have been introduced in response to this. The English approach towards evasion is a pragmatic one rather than being based on any broad underlying theory. In particular, the fundamental questions have not been addressed of what is wrong with evasion of the law and how it can be dealt with most effectively. The purpose of this article is to examine the present law on evasion, determine what is wrong with evasion of the law and put forward proposals for a principled approach to deal with the problem.

In this paper I propose to defend legal conventionalism against the attack mounted on it in Chapter 4 of Ronald Dworkin's book Law's Empire. I do not propose to defend legal conventionalism against other arguments which might conceivably be deployed against it. Nor do I propose to say anything of great substance about the positive merits of the position.

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

The growth of royal justice in England consisted in part in the development of writs to begin proceedings in royal, county, or seignorial court. In the late twelfth and thirteenth centuries the King's court seldom created entirely new substantive rules and entitlements. Rather, the growth of royal justice consisted in the reinstitutionalisation of customary norms and entitlements in the legal mechanism of royal government. The available writs and the rules governing their use—especially writs which began proceedings directly in the King's court—constituted the structure of royal justice in that they determined which norms and entitlements would be shaped in the King's court and would have the power and authority of royal government behind them. Bracton's ideal that there ought to be a writ for every case requiring a remedy motivated the proliferation of royal writs—both the creation of new writs and the division of existing writs into two or more variants—from the forty-five writs found in Glanvill (1187–9) to the 886 writs found in an early fourteenth-century register of writs. Each new writ brought a new social situation within the ken of royal government or changed the terms in which royal government recognised and enforced social norms. The division of a single writ into two or more variants meant a refinement of the legal structure. Changes in the rules governing the use of a writ also changed the interaction between royal government and social life. The reinstitutionalisation of customary norms and entitlements created additional subjects for argument. In addition to the customary norms as recognised in the King's court, persons could also argue about the writs and rules of the King's court itself. Substantive issues could thus be suppressed and transposed into procedural issues that deter-mined the boundaries to the royal judicial power to affirm and to effectuate customary norms. In 1176, the King asserted royal jurisdiction over the customary entitlement known as dower. This essay traces the development of the writs of dower from their creation to Chapter 49 of the Statute of Westminster I (1275), which changed the rule for using thepraecipe writ of dower.