Relational contract theory holds that the interpretation of a contract must take full account of the context and surrounding circumstances of the parties’ bargain so as to give effect to their respective intentions. This paper argues that if a relational treatment of contracts is to be institutionalised, in the sense of being utilised in a contract dispute to determine and give effect to the parties’ intentions, then it must operate at an abstract level. That is to say, rather than using relevant context to determine what the actual parties intended in the circumstances at hand, the contextualist enquiry should ascertain the relevant context by reference to what the parties would have agreed to in the circumstances, had they properly reflected on what their self-interest requires. I discuss the merits of this proposition by reference to a number of appellate judgments, which already endorse contextualism as a response to contractual ambiguity, and I ultimately apply it to the Supreme Court's judgment in Rainy Sky SA v Kookmin Bank.

Sir Paul Vinogradoff was once well known for his historically contextualised approach to legal theory which held that legal ideas were the contingent products of social factors. Law was necessarily engaged with other subjects, and ‘historical jurisprudence’ could produce real insight into the nature of law – in part by placing theories such as analytical jurisprudence in context, evaluating and modifying theoretical models by reference to the contingent social facts of an era. This was part of the nineteenth-century turn to ‘science’ in history and a focus on methodology. Sir Henry Maine argued that legal history proved the insufficiency of analytic theories, but his method met with many criticisms, some of which Vinogradoff sought to address. However, Vinogradoff's insights have rarely been pursued or developed, with legal history favouring Maitland's more doctrinal approach, and legal theory rejecting historical jurisprudence – at least explicitly. Despite its imperfections, historical jurisprudence offers a rich and valuable way to understand law, including to evaluate analytical models such of those of HLA Hart, and as a methodology for dialogue between comparative and historical legal scholarship. It has, in fact, continued to do so without explicit recognition in the 100 years since Vinogradoff's death.

Most universities (bar profit-making institutions) are charities as a matter of law but, historically, have been exempt from charity law regulation. This paper considers the statutory reforms of 2006, which sought to level the regulatory playing field by appointing ‘Principal Regulators’ of such ‘exempt charities’ to promote compliance with charity law. Focusing on the university sector – where some universities are now registered charities (and regulated by the Charity Commission) whilst others remain exempt – it will note how the reforms have resulted in the application of significantly different degrees of scrutiny and accountability, both between individual universities and between universities and other charities. In part, this is due to the statutory framework itself but, significantly, is also attributable to the radically different approach taken by the Office for Students, which replaced HEFCE as Principal Regulator in 2018. Possible improvements in regulatory practice and statutory reform are offered.

This paper explores the impact of cuts and continued fee stagnation on publicly funded criminal defence in England and Wales. In so doing, we take an explicit focus on Wales, which has been neglected in socio-legal scholarship on criminal justice matters. Drawing on 20 interviews with criminal defence lawyers in south Wales, we examine how they have experienced the changes to criminal legal aid in recent years. The lawyers in this study largely considered underfunding as a key political issue, with criminal legal aid identified as an easy target, also highlighting concerns around the impact of underfunding on their practice and how they can work for clients. As such, lawyers queried whether there is a viable future for criminal legal aid. These findings have implications for Wales, and the whole England and Wales jurisdiction, as we will discuss throughout.

The pressure to distinguish high quality from lower quality law journals is intensifying. To contribute to this debate, citation-based and peer review-based ranking of law journals are paralleled in the paper, using qualitative and quantitative analysis. It is found that all law journals that are considered as journals of the highest quality by legal experts are also ranked highly in Web of Science (WoS) and that 40% of the law journals categorised as ‘internationally leading’ by the peers are not listed in WoS. This paper explores what the editors of some of the internationally leading law journals that are not listed in the WoS think about applying to be listed in it. The paper offers data to support the contention that legal scholarship is characterised by regionalism in academic publishing and citation patterns. It is submitted that there is no perfect indicator of quality, and that no evaluation system will ever convince every legal scholar in the world of its value. WoS could be adopted as a rigorous and internationally recognised index for law journals only if it were aligned more closely with the Leiden Manifesto.

It is an accepted principle of domestic and international law and policy that the welfare or best interests of the child must be the primary or paramount consideration in any decision made with regard to that child's upbringing. While this ‘best interests standard’ has become a core principle of welfare law, what might constitute a child or young person's best interests is given very little formal shape or content. This has provoked sustained criticism from practitioners, academics and the judiciary. In response, this paper argues that the capabilities approach can give best interests assessments much needed normative content, thereby addressing many of the criticisms directed towards the standard. The approach provides a theoretically nuanced framework for theorising about basic social justice and for evaluation, deliberation, and policy development across social welfare sectors. In arguing for a capabilities approach to best interests assessments, the paper sets out an agenda for change. It addresses the conceptual and methodological justifications for this change, and explores the empirical work that would be required. It identifies the steps and underlying principles necessary for a best interests process aligned with the capabilities approach, providing the necessary foundations for a radical reconceptualisation of best interests processes.

The paper explores the use of statistical data and statistical assumptions as evidence in criminal trials. It is suggested that a finding of guilt includes not only its main factual proposition but also additional propositions that support and affirm it. Specifically, it includes not only the proposition that the defendant committed the offence but also the additional affirming proposition that it is this defendant rather than any other potential defendant who committed the offence (the ‘D rather than A’ proposition). Some statistical generalisations provide reasons in defence of the main proposition but not in defence of the affirming proposition, which then remains random or arbitrary. Yet since criminal convictions include a moral judgement, they cannot be justified where some of their propositions are arbitrary. Accordingly, such statistical generalisations cannot justify a criminal conviction.

This paper presents the findings of a comparative statistical study examining the application and trends in the deployment and utilisation of European Union (EU) law before the Scottish and Irish courts over a 10-year period from 2009–2018. The paper poses the question, how does European integration impact on the domestic legal systems of EU Member States due to the increasing volume, and significance, of cases where EU law is raised and applied within domestic legal systems? The research presented is of particular relevance in light of Brexit. It allows prescient reflection on the significant disruption and impact the United Kingdom's exit from the EU is likely to have on areas of domestic law which are highly integrated with EU law. It highlights the potential difficulties implicit in attempting to unpick over 40 years of assimilation of EU law and principles into Scots law. These research outcomes should lead to further reflection and debate on the role of EU law and its impact on judicial decision-making in the Scottish and Irish legal systems in general.

This paper examines the standard of proof applicable in proceedings for imposing pecuniary penalties for violation of competition rules. Australia, New Zealand and the UK have chosen the civil standard. This unfortunately overlooks the safeguards required by the relevant human rights treaties in proceedings that involve the determination of a ‘criminal charge’. Conversely, Hong Kong has adopted the criminal standard, which may prove unworkable in these proceedings in which economic analysis is key. After analysing whether one may set this quagmire aside by asserting that these proceedings do not involve the determination of a criminal charge, it will be argued that the more plausible solution is to accept the criminal charge characterisation, limit the civil standard to the effects-based elements of the charge and apply the criminal standard to other elements. This will achieve a permissible proportionate derogation from the human rights safeguards. Similar bifurcated models have been adopted for charges such as public nuisance and harassment, and have successfully withstood human rights challenges.