Showing papers in "Cambridge Law Journal in 1989"

Public Nuisance—A Critical Examination

Abstract: Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common cold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance. The definition of this offence, according to Archbold's Criminal Pleading and Practice, is as follows: “Every person is guilty of an offence at common law, known as public nuisance, who does an act not warranted by law, or omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects.” The person who commits a public nuisance incurs liability to life imprisonment and unlimited fines. He can be made vicariously liable for the offence if it is committed by his servants. He can be ordered to stop it by an injunction, and made to pay damages in tort if it causes anyone loss. With such a broad concept in existence, backed with such broad remedies, what need have we of any other criminal offence?—or torts?—or remedies in administrative law?

John Bryt's Reports (1410–1411) and the Year Books of Henry IV

Abstract: The anonymity of the year books has puzzled historians for over a century, and generated an extensive literature. Contemporary users of the year books cannot have been much interested in the identity of their authors; and this in itself is a historical fact of some interest. By 1600 there was an obvious difference in quality and authority between the reports of judges, or distinguished lawyers such as Plowden, and the scrappy notes of students below the bar. Both kinds of report circulated in manuscript, but their users were well aware of their relative merits and took notice of the reporters' identities. Why, then, did the medieval lawyer not show the same interest in names? Was it because the production of year books was so much a collaborative effort that identification of individual reporters would have been meaningless? Or was it, on the contrary, because so few reporters were involved that everyone knew who they were? Or was there simply no notion of authority, either legal or historical, to which the reporters' qualities might be relevant? In other words, were the reports evaluated solely on their intrinsic merits as books of potential arguments and procedural moves?

Restitution for Wrongs

Abstract: In what circumstances can a person be liable to a pecuniary remedy for conduct which has not caused the plaintiff any harm? This question lies at the heart of the present topic, in which the plaintiff seeks to disgorge a benefit acquired by the defendant through the latter's wrongful act, even though the wrong has not actually caused him loss or injury. Consider, for example, a trespasser who has benefited by using a track across the plaintiff's land without reducing the value of the land; the plaintiff, who might never have been willing to consent to such use of his land, now seeks payment as if his permission for that user had been sought at a price. In terms of “unjust enrichment,“ the plaintiff's claim is that the defendant's enrichment is “ “unjust” by virtue of the wrong committed, without showing that the enrichment is at his expense.

Law as Practical Reason

Abstract: Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counseFs arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking "practical" in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals ofEthics1; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers. Joseph Raz has pointed out that:

The Place of Private Nuisance in a Modern Law of Torts

Abstract: It is forty years since Professor Newark wrote despairingly of nuisance that “the subject as commonly taught comprises a mass of material which proves so intractable to definition and analysis that it immediately betrays its mongrel origins.” The “truest dictum in the books” was that of Erle C.J., who had once said in answer to the question, what is a nuisance?, that it was “immersed in undefined uncertainty.” Little has changed since 1949. Public and private nuisance still face life together in the textbooks, the universities and the law reports, despite the convincing evidence all round, much of it gathered in Newark's article, that they have little in common except the accident of sharing the same name. Making hoax bomb calls, obstructing the highway and holding a badly organised pop festival are as vulnerable to a public nuisance action as are the more traditional occurrences of special damage from atmospheric, water and noise pollution. Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone. The action now encompasses not only smelly oil depots, noisy speedboats and the like but also dangerous natural hazards on the land and the only slightly less natural “user of premises for prostitution and the perambulations of the prostitutes and their customers.” Sometimes negligence is essential to liability, sometimes it is quite irrelevant.

Finis for Novus Actus

Abstract: An extreme view of criminal responsibility might be that everyone is under a duty to act in such a way that others are not led to cause harm, so that in some circumstances he would be responsible for “causing” harm that is directly caused by others, even though it is caused without his authorisation, help or encouragement.

Taking Rights Cynically: A Review of Critical Legal Studies

Abstract: The Critical Legal Studies movement has been described by one of its leading proponents as having “undermined the central ideas of modern legal thought and put another conception of law in their place.” Whether or not the movement has actually succeeded in doing so, this is a fair description of its ambition. The scholarship of the CLS movement disputes the idea that the power of judges and other government officials either can or should be constrained by sources of law such as constitutions, statutes, and precedent. It is marked by a rejection of the belief that “legal argument” can or should be an enterprise distinct from political argument. It is also marked by a rejection of “legal rights” as a desirable or even possible means of protecting individuals from government power.

Part XI of the Law of the Sea Convention and Third States: Some General Observations

Abstract: On 30 April 1982, after almost a decade of careful negotiations at the Third U.N. Conference on the Law of the Sea,1 the Law of the Sea Convention2 was adopted by the positive votes of 130 States3. In one of its main sections, Part XI, the Convention sets out a detailed regime for the exploration and exploitation of the deep seabed4 and its resources and firmly places deep seabed mining under the regulatory control of the International Seabed Authority, to be established in Jamaica. However, as is well known, the United States and certain other Western countries have adopted a negative posture towards various aspects of Part XI and, for this reason, they are unlikely to ratify the 1982 Convention in the near future. Against this background, the question whether the provisions in Part XI may be binding even vis-d-vis non-parties to the LOSC has assumed considerable importance in contemporary international law. Broadly speaking, State opinions on the legal impact of the deep seabed provisions in the 1982 Convention may be divided into two categories. On the one hand, the developing countries, acting primarily through their representatives in the Group of 775 maintain that the deep seabed area and its resources are the "Common Heritage of Mankind" and thus open to exploitation only in conformity with the terms of Part XI.6 This approach has also received some support

Affirmative action in the law of tort: the case of the duty to warn

Abstract: One of the principal features in the development of private law in recent years has been the dramatic increase in the variety of circumstances in which courts are willing to hold that one party owes a duty of care in tort to another. The view that the categories of relationship which attract a duty of care at common law are immutably fixed by precedent and that any decision to extend them must be left to the legislature, expressed by one Law Lord as recently as 1970, now seems somewhat quaint and it is generally accepted that courts can, in appropriate cases, extend the scope of liability for negligence to embrace new types of relationships, conduct and harm. As the boundaries of liability have been rolled back, old immunities have been removed and duties of care (albeit sometimes restricted) have been established in areas previously considered to be beyond the scope of the law of tort. But there are still areas of confusion and difficulty, perhaps the most prominent of which in recent years have been the extent of liability for economic loss and for nervous shock. Another area of doubt, however, is the extent of liability for omissions. While it has not attracted as much attention as economic loss or nervous shock, the distinction between acts and omissions still exercises a powerful influence on judicial decision making on the question of tortious liability. This article considers the question of liability for one such omission, namely liability for a failure to warn someone of imminent danger. Before doing so, however, it is necessary to clarify exactly what is meant by an “omission.”

Limitation of Actions in Restitution

Abstract: This article attempts to investigate an aspect of the English law on limitation of actions which has received little academic attention—its application to restitutionary claims. It will be suggested that, as the essence of a plaintiff's claim is the injustice of the defendant retaining a benefit gained at his expense, the running of time should be a defence to a restitutionary action where its passing has sufficiently eroded the injustice of that retention. In theory this should be a matter for decision purely on the facts of each case, but additionally the societal need to discourage stale litigation often requires an overall time bar based on the Limitation Act 1980. This perspective suggests a number of particular conclusions which are summarised at the end of the discussion.

A Year and a Day in Homicide

Abstract: On 14 August 1988 the death occurred of Miss Pamela Banyard of Laxenheath. She had been the victim eighteen months previously of a savage and brutal attack for which her assailant was sent to prison for ten years on conviction of attempted murder and robbery. Why was he not convicted of murder? The answer in the words of the Crown Prosecutor: “We cannot prosecute for murder as she died more than a year and a day after the attack.”

Third Parties: Rationalising a Right to Sue

Abstract: In a revolutionary but unsatisfactory recent decision, the High Court of Australia has allowed a third-party beneficiary of an insurance contract a right to sue the promisor. The decision casts doubt upon the whole doctrine of privity and ultimately upon bargain as the theoretical basis of promissory liability. The Trident case is unsatisfactory not because it allowed a third-party beneficiary a cause of action or because it challenges privity and bargain, but because it offers no satisfactory replacement for the theory of bargain. The reasons the court gave for recognising a right to sue are weak and inconsistent with the common law's approach to questions of civil liability. That approach is to give a plaintiff a cause of action against a defendant not solely because of something the defendant has done, but because there is a legally relevant link between what he has done and the plaintiff's condition. That is, the plaintiff must, in order to establish a right, satisfy some criterion for linking the defendant's behaviour to his complaint.

Transnational Recognition and Enforcement of Foreign Public Laws

Abstract: The title of this article is not felicitous, but the author has not been able to think of one which would be palpably less infelicitous.The word “transnational” is used simply to indicate that the article is not concerned with inter-state or inter-Provincial situations of the sort liable to arise in federal or composite constitutional structures.