This paper explores Dworkin's ‘law as a chain novel’ analogy and considers the recent work of Dworkin and MacCormick through close scrutiny of two recent judgments of Lord Hoffmann, in Barlow Clowes v Eurotrust International [2005] UKPC 37 and Barker v Corus [2006] UKHL 20. The aim is to examine Dworkin's theory in the context of recent English private law decisions and determine whether Lord Hoffmann's approach to interpretation is consistent with that of Dworkin (as his Lordship has contended in the past). It is argued that Lord Hoffmann's treatment of recent decisions on which he himself sat raises significant questions regarding fidelity, coherence and the institutional structure of the House of Lords.

Despite exerting a considerable influence over contemporary constitutional thought, there is a very real sense in which the political constitutionalism of JAG Griffith has been neglected. This paper seeks a genuine engagement with Griffith's work and, in doing so, offers a reconstruction and partial defence of Griffith's political constitutionalism. The article characterises Griffith's political constitutionalism as ‘agonistic’– that is to say, issuing from a belief in the inescapably conflictual nature of human association. Central to this agonistic political constitutionalism is the relationship between conflict and politics – or what might be termed the political management of conflict. This paper argues that Griffith's account of conflict, although central to his constitutional thought, is underdeveloped, not least in its failure to elucidate precisely what is to be understood by ‘politics’. It is thus that the paper draws on the work of Michael Oakeshott to propose an understanding of politics as the pursuit of intimations that, it is argued, can help draw out an important blend of conflict, continuity and contingency in Griffith's political constitutionalism.

Corporate governance best practice now includes the requirement for a board to ensure that the system of internal control is effective in managing risks in the manner which it has approved. The Turnbull Guidance on this matter is ‘based on the adoption by a company's board of a risk-based approach to establishing a sound system of internal control and reviewing its effectiveness’. This involves the identification and prioritising of risks and embedding the risk management approach in the culture and processes of the business. This article explores the use of risk assessment in the law, particularly as it applies to the activities of companies. It is suggested that a concentration on, and perhaps a spurious quantification of, risk could mask the difficulty of making board-level decisions under conditions of true or Knightian uncertainty. Knight maintained that true uncertainty was something distinctly not of the character of risk. It occurs when ‘. . . there is no possibility of forming in any way groups of instances of sufficient homogeneity to make possible a quantitative determination of true probability. Business decisions, for example, deal with situations which are far too unique, generally speaking, for any sort of statistical tabulation to have any value for guidance. The concept of objectively measurable probability or chance is simply inapplicable’.

Systems of representative democracy require that the electorate be given at regular intervals the opportunity to replace the party in government with a rival political association. In this context, the right of individuals to freedom of association permits the formation of competitor parties and prevents forms of state intervention that might otherwise privilege existing office holders and their political programmes. It follows then that restrictions on the right to political association are deserving of particularly close scrutiny. At the same time, liberal democratic constitutions usually insist that participants in electoral process manifest a level of commitment to core liberal democratic norms (such as the rule of law, toleration, the equal worth of each individual and the peaceful resolution of grievances). In the case of intolerant, extremist parties that would reject some/most of these norms, the state may invoke a range of defensive measures up to and including proscription in order to safeguard democracy. This paper takes as its focus the constitutional issues raised by the banning in Spain of Batasuna – the political wing of ETA. A legal challenge to the ban is currently before the European Court of Human Rights. Making reference to work of John Rawls, this paper considers whether the ban on Batasuna is justifiable in terms of liberal political theory, before analysing the extent to which proscription conforms to international human rights law and European Court of Human Rights jurisprudence.

The integration of national financial markets over the past 30 years has resulted in a globalised market for corporate control which has increased both the opportunities for companies to fund acquisitions and the possibility of being acquired. Takeovers and mergers have, as a result, become a matter of some concern for governments, as they try to encourage the development of financial markets but also deal with the consequences of a globalised market for corporate control, where even companies regarded as national champions are within the reach of a foreign takeover. In the course of the last decade General Principle No 7 of the UK Takeover Code, that shareholders should decide the outcome of a takeover bid, has been adopted in many jurisdictions around the world and has formed the heart of the EU Directive on Takeovers. The Principle is however a controversial one, as its adoption is often viewed in civil law jurisdictions as an attack on a core part of a social market system. This has been particularly evident in the debate on the EU Directive on Takeovers. A number of common law heritage countries have also based their takeover regime around General Principle No 7 and many of these common law heritage counties have similarities with social market systems, in that they have less significant stock exchanges than the UK, the make up of their shareholding base is more concentrated and employment protections are more extensive. A central jurisdiction in that overlap is Australia, with exactly this combination. The purpose of this paper is to examine the historical effect of introducing UK takeover principles into the Australian system, by creating an empirical data set of takeovers of Australian listed companies covering the period before and after those UK-based principles were introduced. In doing so the paper found that factors such as concentrated ownership, capital controls and protective labour law have significant effects on the market for corporate control. There was no transforming effect evident in adopting an anti-managerial pro-shareholder takeover regime. As such, the fear that the adoption of a standardised EU-wide takeover Directive, along the lines of the UK Panel on Takeovers and Mergers' shareholder-oriented General Principle 7, would have a negative transforming effect on social market systems appears, on the Australian evidence, to be overblown, while other key features of such systems, particularly concentrated ownership and protective labour laws, remain in place.

The function and effectiveness of legal rules as instruments of social organisation have become an important focus of attention for those interested in financial architecture. This paper offers a critical overview of the policy of rule use of the Financial Services Authority (FSA) in the UK and considers the background of this policy, its nature and some problems pertaining to its implementation. The aim is twofold: first, to describe how current policy trends interact with and shape the FSA's policy of rule use and, secondly, to assess the impact of these trends on the effectiveness of this policy. Special attention will be given to developments such as the policy of making more intensive use of rules termed in a high level of abstractness and generality, the fostering of a discursive and participatory character of regulation, the shift towards meta-regulation and the adoption of a risk-based approach to regulation.