The recognition of ‘torts’ as a separate and distinct branch of th law is, as things legal go, extremely recent. The first English text-book on the subject (Addison) did not appear until 1860. Since that time, however, the subject of ‘Torts’ has probably received more attention from both legal writers and the Courts than any other subject in the law. This is understandable if one grasps the extremely wide scope of the field involved, and at the same time bears in mind the impact of modern science on the various activities in which men engage in present-day society.

Some years ago the position of the unborn child in the English law of tort attracted my attention and it is chiefly in connection with that branch of the law that I wish to discuss the topic. But, as almost invariably happens in legal research, I soon found that there were other aspects of the subject which at least deserved passing notice, and at most might be useful for analogy with or distinction from the aspect in tort. It is the old tale of going out to catch a whale and landing several other fish in the process. The three other branches of the law with which I made contact were the law of property, criminal law and the law of contract. I shall touch upon these, but I have no intention of investigating them in detail. There are plenty of books which cover the topic in Property Law and Criminal Law respectively. In the law of contract there is a significant blank. The order of discussion in this article will be:—

I—The law of property.

II—Criminal law.

III—The law of contract.

IV—The law of tort.

In English law the definitions of the most important crimes were framed in an age when economic conditions and social relations were simple and when the paramount need was to give protection rather against violence than against deceit. As time passed a much more complicated economic order developed and in consequence of this evolution the intellectual aspect of crime gained an ever increasing prominence at the expense of the physical aspect. Not only did more subtle forms of transgression in the economic sphere, such as are now the crimes of forgery, obtaining by false pretences, etc., make their appearance, but also the lines of demarcation between what should be regarded as business astuteness and what should be stigmatized as criminal fraud became more and more difficult to draw.

A Case which will be of interest to students of medical law, public law and human rights, North West Lancashire Health Authority v. A, D, & G [1999] Lloyd's Rep. Med. 399, concerned three transsexuals who wanted “sex-change” operations. The health authority's policy was to give low funding priority to procedures it considered of little or no clinical benefit; the authority would not fund “gender reassignment” except in cases of “overriding clinical need” or other exceptional circumstances, though it would fund psychotherapy.

Twenty years ago Mr. Cairns set himself the task of looking at law from three points of view, that of the social sciences, that of logic and the empirical sciences, and that of philosophy. Law and the Social Sciences was published in 1935, the Theory of Legal Science in 1941. The volume under review completes the trilogy. The object of all these volumes is the same—‘To construct the foundation of a theory of law which is the necessary antecedeat of a possible jurisprudence’. All those who have come under the spell of Mr. Cairns' stimulating thought will look forward with the greatest interest to the application and expansion of his conclusions which is now promised us in a projected final work, The Elements of Legal Theory.

I

Gentlemen:

With some reluctance I have given way to a wish that I have heard and have consented to say a few words about the course of study for the Second Part of the Law Tripos. Some of the reasons for my reluctance will become apparent hereafter; one of my reasons for yielding I will state at once. Along with other members of the Special Board for Law I took part in preparing what we know as the New Regulations. And certainly it did not seem to me then that we were proposing an impossible scheme; nor do I now regard the scheme either as impossible or as bad, but still I will frankly admit that, had I some years ago seen as clearly as I do now the circumstances in which students will be placed when they have first issued from the First Part of the Tripos, I should have wished to make some changes in the programme. The programme set before you is undoubtedly a heavy one and I may say at once that I do not think that you will do very well in the examination next year unless you set to work at once, and use what remains of this present term and a considerable part of the Long Vacation.

I

The title of this essay refers to the titles of three recent works by Professors of Jurisprudence. It is proposed to use these works to illustrate the problem of Jurisprudence in discovering its own appropriate concepts and making sense of its literature.

Jurisprudence, it may be assumed, is what Professors of Jurisprudence write. They write it presumably for the edification of students in the Faculties to which they are attached, to help them to see the coherence and the relevance of the more specialised studies in which they are engaged. These Faculties are Faculties of Law. But what is law? The diverse strange and even paradoxical ways in which this question has been answered by serious thinkers, says Professor Hart in his opening paragraph, constitute “a situation not paralleled in any other subject systematically studied as a separate academic discipline.” If we say, then, that Professors of Jurisprudence write about law, our statement may fail to convey any exact or agreed information. Even if it may correctly be assumed that Professors of Jurisprudence use the word ‘law’ to refer to their basic subject-matter, it cannot be assumed that the precise identity of this subject-matter is universally or even generally agreed. Consider some of the identifications of law quoted by Professor Hart—‘ What officials do about disputes is… the law itself’; ‘The prophecies of what the courts will do… are what I mean by the law’; Statutes are ‘sources of Law… not parts of the Law itself’; ‘Constitutional law is positive morality merely’; ‘One shall not steal; if somebody steals he shall be punished… If at all existent, the first norm is contained in the second norm which is the only genuine norm… Law is the primary norm which stipulates the sanction.’

The New Shorter Oxford Dictionary defines heresy as an opinion or doctrine contrary to the accepted doctrine of any subject. In Pye v. Graham [2002] 3 W.L.R. 221 the House of Lords robustly confirmed the orthodoxy relating to adverse possession and discounted discordant voices as heretical. There is probably general relief that no fireworks have disturbed the established law in its twilight years, but for this writer there is some regret over a wasted opportunity. Yet again in an adverse possession case, a result has been reached that caused some of the judges misgivings about the fairness of the outcome, but there was no serious attempt to try to address this by subjecting the whole area to a fresh scrutiny and considering whether there was any merit in heretical views.

The conflict between common law and equity on the question of when time should be regarded as being “of the essence” for the performance of a contract has often been debated, as has the impact of its resolution by the Judicature reforms in favour of equity's more relaxed approach. Even so, it is tolerably clear that the two approaches have been substantially assimilated within general principles of discharge for breach. If, as a matter of construction, a time stipulation is a condition, then time is of the essence. Alternatively, time may have become of the essence by an effective notice to perform served by a promisee. If the contract has been validly discharged on either basis, specific performance will not be ordered in favour of the promisor.1