The article assesses the interaction between the United Kingdom's traditional constitutional principles and the innovative Human Rights Act 1998, which introduces a range of substantive, constitutional values through ‘Convention rights. These values are compatible with collective as well as individual interests, and the scheme of the Act accommodates existing constitutional principles. The Act should therefore generate evolutionary rather than revolutionary change. The limited measure of judicial review of primary legislation should not threaten parliamentary sovereignty. In its technical detail the Act represents a small step beyond the principle of dualism of national and international law, subtly affecting national sovereignty and influencing the research agenda of legal practitioners and academics. The main constitutional effect of the Act, however, will be to bolster Rule of Law principles, with new remedies focusing attention on the notion of equality before the law and putting the conceptual distinction between public and private law under increasing pressure.

This paper is concerned with how law organises and controls space. It offers a new history of enclosure in the context of early English colonialism. By drawing this connection, the paper opens up new lines of enquiry into how law organises and produces space at both the domestic and international scale.

This paper aims to lay the foundations for a more critical approach to the relationship between corporate social responsibility (CSR) and corporate law. Limitations on legislative approaches including directors’ duties, disclosure of information, sustainable decisions, direct promotion and corporate internal management structure are critically analysed, trying to find well thought-out and effectively implemented adjudication that provides meaningful instruction for regulating CSR. The paper explores the manner in which corporate law may contribute to accommodating CSR principles within corporate strategies, in order to establish a transformative legal regulatory framework within corporate law by using the authoritative legal mode to promote corporate regulatory mechanisms. The paper critically studies a few legislative measures supported by the relevant legislative experiences from various jurisdictions as examples of currently enforced CSR laws at national level, in order to offer comprehensive and potentially effective legislative suggestions for accommodating CSR elements. However, a ‘one size fits all’ approach is clearly not desirable, and these suggestions should be interpreted and implemented in a locally relevant manner, according to path dependence theory.

The story of the woman judge as one of exclusion and isolation plagued with allegations of bias is well documented. Interestingly, despite significant differences in time and place, a common theme unites these tales: the woman judge is a dangerous outsider, a threat to the aesthetic norm. The judicial climate, at least in most of the common law world, is somewhat chilly: reactions to her presence on the bench vary from the largely indifferent to the downright hostile. Why is this? After all, most people, perhaps acknowledging the political and democratic gains underlying calls for a more representative judiciary, would wish to encourage – or at least not discourage – judicial diversity.

Taking the stories of the woman judge as its starting point, this paper contends that underlying these tales is an image of the judge that is as much intuitive as it is reasoned; that our understanding of the judge and judging is as much derived from the imagination as from what is conventionally considered as rational thought. Thus, the paper deploys the narrative strategies of fairy tales in an attempt to disrupt the imaginative hold of familiar yet particular images that infuse and distort current discourses on adjudication. It suggests that despite the Department for Constitutional Affairs’ ongoing quest to increase diversity within the judiciary, current initiatives do not confront fully these instinctive images. As a result, their narrative of inclusiveness and difference fails. In response, the paper appeals to the imagination as a route toward engendering new conceptions on the judge and judging, the possibility of truly diverse judiciaries and, perhaps, a fairy tale ending to the woman judge’s story.

This paper examines the recent trends in regional and international tribunals that relate to the position of the victim in the criminal process. Recent decisions in both the European Court of Human Rights and other international tribunals have illustrated a new and progressive attitude towards the role of the crime victim. This can be attributed, in part, to the breakdown of the public/private divide in human rights law and the mutually expanding parameters of both human rights discourse and criminal law. It is argued here that cross-fertilisation between these disciplines, which is widely evident in current policy making and judicial decision-making, has meant that the traditional failures of human rights law and the criminal law to protect victims are being addressed – at least to some extent. A line of European and international case law has developed which suggests that victims of crime have acquired a number of enforceable substantive rights, similar to those held by victims of abuse of power. While the potential for victims to be further empowered will always be inherently limited in adversarial jurisdictions, it is none the less a welcome development that a clear trend is emerging which indicates that international policy makers and tribunals are viewing criminal justice issues in a much more holistic manner.

Citizenship laws provide us with models of membership. They define the terms on which strangers and natives belong to political communities, allocating both the benefits of membership and the brutalities of exclusion. Recent legal changes in Ireland, restricting the right to citizenship by birth and limiting the rights of migrant families, highlight the vulnerability of children in migrant families and the limits of citizenship status. Many other states have grappled in recent times with the right to citizenship by birth and the entitlements to family life that come with such a claim. In both the UK and Australia the jus soli principle has been significantly restricted. In the US, Canada and elsewhere, while the jus soli principle continues to apply, citizen children born to undocumented migrant parents are subject to de facto deportations, their right to membership of the nation-state ‘postponed’ because of the legal status of their parents. In challenges to deportation proceedings involving such children, the perspective of the child as a bearer of rights is marginalised, with disputes turning largely on the balancing of states' interests in immigration control against the residence claims made by migrant parents.

To be recognised as a legal person is to be individualised: it is to be rendered a separate and distinct being, the unitary bearer of rights and duties. By contrast, to be assigned a legal sex is to be grouped with others, to be placed within one of only two sexes, as either a man or a woman, a necessarily crude dichotomy. It is to be legally defined by the characteristics we are said to share with half the human population rather than regarded as an individual in our own right. This paper entails a critical comparative analysis of the legal concept of person and the legal concept of sex: of maleness or femaleness. It questions the logic and defensibility of this double characterisation of our legal lives. How can law reconcile its deep commitment to individualism with its persisting commitment to a two-sex system?

Legislative restrictions on the sale of organs, gametes and surrogacy services are often seen as having no basis other than mere prejudice or taboo. This paper argues instead that they can be read as instances of a broader decommodification of healthcare provision established in Britain with the creation of the NHS in 1948. Restrictions on the marketisation of medicine were justified by Aneurin Bevan, the founder of the NHS, and by Richard Titmuss, one of its chief academic defenders, in distinctly utopian terms. On this vision, the NHS would function as a utopian enclave prefiguring an idealised non-capitalist future. This commonsense of post-war medicine was fatally destabilised by fiscal crisis and social critique in the 1970s. Influential commentators like Ian Kennedy developed an anti-utopian account of the real NHS and proposed legalistic and market-based reform. These reforms sought to dissolve the enclave, assimilating medical work and the NHS as a whole to broader systems of accounting and accountability. Insofar as they have been realised, they achieve a recommodification of medicine in Britain. The paper concludes by examining recent studies of the ‘new NHS’, which see in the latter-day idealisation of market processes a novel form of self-denying utopianism.

The problem of how to hold a company criminally accountable for the harm produced in the course of its business activity continues to vex the English judiciary. The attempt to apply conventional criminal law to companies has not been a resounding success. This was perhaps predictable, as the relevant rules and doctrines had been developed in cases involving human defendants. Their transposition to an inanimate organizational entity such as a company was never going to be easy. Not only did the judges fail to rise to the challenge, however, they managed to construe the relevant law in a regressive manner that has all but insulated large companies from criminal liability.

Private nuisance is, on the face of it, an old-fashioned tort, whose agrarian, antidevelopmental roots may make its contemporary relevance seem limited. On the other hand, both nuisance and Rylands v Fletcher hold obvious attractions for litigants whose interests have suffered as a result of environmental change. The potential apotheosis of nuisance into a ‘Toxic Tort’ presents tort lawyers and environmental lawyers with a number of pressing questions concerning the nature and scope of private law in this context.

This article will seek to assess in outline the positive potential of tort law in this respect, but it will also be argued that there may nevertheless be real conflicts between the law of tort and central elements of environmental law. The nature of those potential conflicts can only be understood if we clarify the form (or forms) of liability effected by relevant torts, and here the tort of nuisance poses particular problems. Once clarified, however, I would suggest that these conflicts can contribute to debates, not just about tort law, but also about the basic aspirations of environmental law and policy.

As someone who has spent a lot of time examining the underlying economic and social factors which affect lawyers and the services which they provide, I have to admit that I have no special insights which inform me how the legal profession will alter over the next few years. So much has happened in the recent past, such is the state of flux in the wake of the government's green and white papers that it would be a very foolish person who would confidently predict developments. Even the enactment of the Courts and Legal Services Bill will only provide a limited framework for the changes which are now taking place and further legislation may be necessary within a short period.

A number of writers have invited attention to the fact that Kelsen, in a long and extraordinarily productive career, gave very little attention to questions of legal interpretation. Kelsen's younger colleague in the Vienna School of Legal Theory, Fritz Schreier, himself a legal philosopher of note, remarked in 1929 that the Vienna School had neglected interpretation. Michael Thaler made the same point a half century later, writing that Kelsen devoted himself ‘entirely to an elucidation of the object of interpretation’, that is to say, the legal norm itself, without providing any details on ‘ how interpretation is to be done’. Other recent writers go further: Klaus Adomeit dismisses Kelsen's theory of interpretation as ‘methodological nihilism’ Günther Winkler writes that Kelsen’s theory, although ‘simple’, is both ‘mistaken and misleading’. Indeed, most recent writers who have examined the Pure Theory of Law on questions of legal interpretation take a dim view of Kelsen's work in the field.

In the last twenty-five years consent has emerged as central to ethical and legal thinking on medical treatment. The meaning of consent and its importance and applicability in the medical context has been tested by scholars and judges in most western jurisdictions. This essay seeks to re-examine the role of consent in medical law in England having regard to a recent series of cases concerning the refusal of treatment. By linking the law, as it has emerged from these decisions, with that developed in the 1980s concerning the doctrine of informed consent it should be possible to draw some conclusions regarding the role of law and the courts in medicine. Throughout we shall be contrasting the supposedly traditional and outdated paternalism of the medical profession with the liberal, pro-autonomy strategies of (mainly) academic commentators.

The national courts of the European Community are faced with a formidable task. On the one hand, judges are appointed and operate within their own domestic legal order, and derive their authority from their national constitutions. On the other hand, with the advent of the Community and the development of the doctrines of direct effect and supremacy, they have acquired a Community mantle and are responsible for the implementation of directly effective Community rights within the national realm. This paper examines how the role of the national courts has been created, what basis exists for it in the Treaty and the theoretical underpinnings of the role. In short, why are the national judiciary also Community judges: and to what extent can they be truly so?

The modern argument that the law of obligations should be recast in restitutionary terms appears to have achieved its victory over contract in A-G v Blake. Although ritual obeisance to compensatory damages is made, Blake recognises a general restitutionary remedy for breach of contract the logic of which must be to undermine completely the expectation interest. The general effect of restitutionary rather than expectation-based remedies will be to furnish a greater deterrent against breach, a result welcomed by advocates of the ‘performance interest’. All this would be well were all breaches ‘wrongs’ which should be deterred. This, however, is not so. Breach has a positive, indeed essential, role in the operation of the law of contract as the legal institution regulating economic exchange and pursuit of its general prevention is inconsistent with the operation of a market economy. The victory of restitution therefore is illusory: it is impossible that the position established in Blake can be sustained.

Restorative justice principles often feature prominently in peace agreements and initiatives to foster reconciliation and peace-building. As part of its own transitional process, Northern Ireland has undertaken a wide-ranging programme of criminal justice reform, whereby restorative practices have become a central response to juvenile offending. Drawing on a major evaluation of the Northern Ireland Youth Conferencing Scheme, this paper suggests that restorative conferencing holds the potential not only to promote reconciliation between victims and offenders, but it may even bolster the legitimacy deficit suffered by criminal justice institutions. Whilst is vital that such schemes continue to foster their engagement with civil society and the wider community, the broader potential of restorative processes to contribute to post-conflict peace-building is considerable, especially in relation to fostering a sense of legitimacy necessary for the operation of society and the institutions of the state.

Based on a findings of a simulation study in which 160 members of the public observed a mini rape trial re-enactment and were then asked to deliberate in jury groups towards a unanimous verdict, this paper explores the extent to which participants were able, and willing, to understand and apply judicial directions, and the legal tests or criteria contained therein. More specifically, it reflects on whether the additional provision of written directions in the jury room influenced the tone or direction of jurors' discussions, and illustrates the limited recourse made by participants to their contents, as well as their tendency to misinterpret or misapply them when they were relied upon. Having done so, this paper moves on to explore the reasons behind this limited impact, suggesting that fundamental tensions may exist between legal and lay imaginaries, such that jurors are reluctant to jettison their more natural inclinations to reach individual and collective verdicts on the basis of narrative constructions grounded in ‘common sense’ and ‘personal experience’.

The immediate problem of Plato’s prisoners in the cave, it will be recalled, was understanding what was going on in the cave (for they could see only the shadows on the wall). In our contention, the situation of those who try to operate consistently within the constraints imposed by the traditional exposition of contract (sometimes pejoratively referred to as the ‘black-letter’ approach), is somewhat akin to that of Plato’s prisoners. They may perceive shadows, but they are unable to interpret them from the confines of their position. The purpose of this article is to sketch a framework for the law of contract, which we hope will assist in this interpretive exercise.

The recent experience of the credit crunch has cast doubt on the prudence of regulation of the mortgage market based upon the concepts of responsible lending and borrowing. Both the Turner Review and the Financial Services Authority's follow-up Mortgage Market Review identified irresponsible lending as one of the principle causes of the credit crunch. Yet easy access to mortgage finance has underpinned the growth of owner occupation and the promotion of low-cost home ownership. This paper examines recent regulatory initiatives to articulate responsible lending and borrowing in more concrete terms, which suggests a shift towards greater lender responsibility through affordability checks, clearer product explanation and the possibility of product regulation. Whilst such proposals may assist in the pursuit of a more stable mortgage market, they cast serious doubt on the future sustainability of low-cost home ownership.

The Enterprise Act 2002 sought to assist troubled companies by enhancing the rescue-friendliness of the UK insolvency regime. Assessing that regime calls for a focus on: the different roles and control powers of the various parties involved with troubled companies; the essential tasks that a rescue regime has to carry out; and the level of co-ordination that is to be expected between different parties. Key tasks in the furtherance of rescue are: the collectiiig of relevant information; the production of sound judgments and strategies; and the taking of timely actions and decisions. The problems of co-ordination, moreover, vary from task to task. For judges, central challenges in coming years will be not only to protect parties’rights within the new rescue regime but also to use judicial oversight powers to encourage co-ordinated action in pursuit of rescue. An appreciation of the co-ordination issue is central to an understanding of the post-Enterprise Act 2002 regime and the potential of the judges to enhance that regime in its furtherance of rescue.