This article argues that the idea of conscience can play a useful, albeit limited and highly general, explanatory role in private law, if we have regard to two distinctive contexts in which it is used. First, it tells us something about how equitable obligations arise and reminds us that they directly enforce moral duties. Second, it conveys the message that the courts are reluctant to impose primary liabilities which restrict the exercise of legal rights absent a past or prospective breach of moral duty by the defendant. Without further explanation, the indiscriminate invocation of conscience in both contexts can lead to confusion and uncertainty, but if the distinction between obligation and liability is observed, the explanatory force of conscience in relation to each becomes clearer, and it plays a valuable role in bolstering the authority of private law.

This paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort. It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse. In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018). The Australian reports suggest reforms not only to state practice, but also to private law. This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention. It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart.

For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory copyrights and consolidated them in the hands of publishers and printers, with the 1887 Dawes Act, which served a crucial function in the American divestment of Indian land. I draw from the stories of the two laws the same moral: Constituting something as a freely alienable property right will almost always lead to results mirroring or exacerbating disparities in wealth and bargaining power. The legal dogma surrounding property rights makes it easy for us not to notice.

Disputes involving shared mistakes should be resolved by considering the meaning (explicit and implicit) of the parties’ agreement. There is no room for a free-standing doctrine of mistake. The argument is illustrated by considering three recent decisions on common mistake.

The history of commercial law has often been written as if it were merely a product of the common law, disregarding the role played by legislation. The principal exception to this has been work on company law. Until recently, the prevailing view has been that the Companies Acts 1844–62 represented the triumph of the free market and the expulsion of the state from business. But, although these laws did make incorporation easier and granted companies privileges, what this view ignores is that they also imposed regulation, such as obligations to register the company and charges on its assets and to hold shareholder meetings. At the forefront of these legal changes were insurance companies. Yet, in spite of the proliferation of these companies and their role in, for example, the inquiry that led to the 1844 Act, they have been neglected. This may be because, while the successful campaign in 1824 to remove restrictions on access to the marine-insurance market would seem to support the view of legislation driven by free-market ideas, that explanation seems contradicted by the closing of access to the life-assurance market and the imposition of various obligations on life offices in 1870, a time when the liberalisation of company laws seemed at their peak. Neither development can, however, be so easily explained, and both show the effect of fierce divisions within the insurance industry.

This article considers how problems in legal historiography can lead to real legal problems, through a case-study of two recent judgments which appear to revolutionise the law on overreaching under section 2(1)(ii) of the Law of Property Act 1925. Their reasoning ignored plain wording in the Act, in a way foreshadowed by problems in the historiography of the 1925 property legislation; and the legislative history shows that the version of overreaching they promote, one with a clear political meaning, was rejected by Parliament. One of these decisions has now been reversed on appeal, but on reasoning so untenable as to invite further challenge; and now two Court of Appeal judgments on overreaching contradict, without even mentioning, two prior Court of Appeal decisions and a decision of the House of Lords. The court should reaffirm the law on overreaching, and academics should develop a new historiography.

Drafters of legislation occupy an important position of constitutional significance, involving the translation of political will into legal form. They help clarify and refine the instructions from politicians and create statutory schemes which are internally coherent and have external coherence with wider legal and constitutional values. They begin the process of disciplining and refining political will through application of constitutional reason, which is then continued at the stage of interpretation of statutes by the courts. Drafters of legislation thus contribute to the formal rule of law values of predictability and certainty and also to more substantive values of fairness and respect for constitutional principles and rights. The better the drafting of legislation, the smoother the integration of democracy and the rule of law and the less need there is for interstitial law-making by judges in the interpretive exercise.