Per Incuriam Michaelmas Edition 2025 by Cambridge University Law Society

ARTICLES FROM CAMBRIDGE STUDENTS

FIRST CLASS TRIPOS ESSAYS

President’s

F

oreword

Dear Readers,

I am pleased to introduce the Michaelmas 2025 edition of Per Incuriam! Per Incuriam continues to be a key feature of CULS’ offering, providing our members with an unequalled selection of high-quality academic essays and student articles on pivotal legal topics. Our aim is to support our members with the unique student-driven inspiration and engagement, academic and beyond, which has always defined Per Incuriam

First, I would like to highlight the hard work of our Per Incuriam Editorial team leading to the successful publication of this winter’s edition Thank you to Editorin-Chief Chloe Levieux, and Deputy Editors Kai Zhen Tek and Dawn Chow for your hard work throughout term and vacation, carefully assessing essay submissions from across the Cambridge Law Tripos subjects to design an informative yet fresh take on the perennial question of what makes a good essay Second, our Editorial team’s work would not be possible without the submissions of our generous contributors: I extend my sincerest gratitude for your participation Third, I am grateful to our amazing Publicity Team, Jessie Wong, Nitha Cherian, and Mia Ven, for their work designing this edition.

Michaelmas has been another incredible year for CULS, from partnering with almost 30 sponsors over a busy 8 weeks to a spectacular ending with our 124th annual Law Ball

Over this 2-month period, we have refined our Careers Programme for members, hosting our first event with a Legal Technology company, Legora, which is pioneering innovation in the legal sector We are also recalibrating our offering to aspiring barristers, including a new collaboration by our Per Incuriam team with Julian Ghosh KC of One Essex Chambers to host a Winter Essay Competition

We are excited to present what we have planned in Lent term in January In the meantime, we hope that this Per Incuriam Michaelmas edition provides an illuminating winter read, and leaves you looking forward to another packed CULS term Alongside the thought-provoking reading in this Per Incuriam Edition, through our new CULSCAST Podcast Series, “Beyond Doctrine” you may listen to fascinating conversations with leading Cambridge law academics

We look forward to seeing you in Lent!

editor’s welcome

Dear Readers,

Happy New Year, and well done on getting through Michaelmas! Whether you are a fresher beginning to settle into the rhythm of supervisions, a second-year tackling the demands of a fifth paper, or a finalist making the most of your last year at university, we have prepared a host of thought-provoking articles and top-scoring Tripos essays to inspire you

This term’s articles focus on the exercise and abuse of authority, and on how the law should be prepared to address related risks In a time of ever-increasing conflict and instability, Oliver Fujioka examines how states of emergency can be abused for authoritarian purposes By contrasting two case studies from South Korea and El Salvador, he demonstrates that constitutions resilient to such emergency authoritarianism not only have robust legal frameworks but also strong institutional and political safeguards. Keyur Gongulur evaluates James Crawford’s estoppel principle in the context of the 2024 ICJ Advisory Opinion concerning Israel’s actions in the Occupied Palestinian Territory (OPT). He contends that Israel is in breach of key international obligations owed to the OPT and cannot avoid this responsibility by denying statehood, as the ultimate beneficiaries of international law are individuals, not abstract state entities Rory Shankar offers a critical analysis of the legal framework governing the guardianship of a child sovereign in the United Kingdom He highlights potential concerns arising from the automatic appointment of Regents as

Chloe Levieux, Kai Zhen Tek, Dawn Chow PerIncuriamSubcommittee2025-26

guardians and advocates for Parliament to legislate proactively, thereby preventing unsuitable individuals from acquiring guardianship of a young monarch during a regency

I would first like to thank our Deputy Editors, Kai and Dawn, for their teamwork and dedication in producing this edition I am also pleased to welcome our new Freshers’ Representative, Giancarlo Mempouo, following a highly competitive selection process We look forward to your contributions

Many thanks also go to our article contributors, Oliver Fujioka, Keyur Gongulur, and Rory Shankar; our Tripos Essay contributors, Matthew Low Tze Yong, Joyce Mau, Olivia Lada Mocarski, Archie Bentham, Shivraj Das, Cormac Hoare, Alexander Zlatev, and Muna Panyasong; as well as the Executive Committee and the Publicity Team for their invaluable support and design expertise.

If you are interested in contributing to Per Incuriam, please email us at perinc@culs.org.uk. In addition to the opportunity to have your work published, essay contributors receive a monetary award We welcome submissions on a wide range of legal topics, so please feel free to pitch your ideas to us and keep an eye out for contributor applications for the Lent edition

Chloe Levieux

Introduction

We live in a time defined by nearconstant emergency Climate change, war, and disease are just some of the crises faced in recent years. It is likely these issues will only intensify in the coming decades, as the climate worsens and new dangerous technologies emerge

Since the Roman Republic, it has been understood that social exigency may require the suspension or alteration of legal and political norms This has continued to the present, with the practice of states of emergency (SOEs) 90% of modern constitutions contain explicit emergency provisions, and numerous international agreements permit derogation from certain rights, such as Article 4 of the ICCPR and Article 15 of the ECHR

Although emergency powers may be justifiable under certain circumstances, their use also threatens constitutional

integrity and human rights. The abuse of SOEs is often the work of powerhungry authoritarians, but it is equally true that well-intentioned actors faced with governance challenges can also become overly reliant on emergency powers, to the detriment of the rule of law For the purposes of this article, the use of SOEs for authoritarian ends (consolidation of powers, restriction of individual freedoms, suppression of opposition) will be described as “ emergency authoritarianism”

Amid a global wave of right-wing authoritarianism and nationalism, as exemplified by the countries discussed in this article, it is vital for scholars of constitutional law and human rights to understand how the threat posed by the abuse of SOEs can be countered. This article provides a comparative analysis of the use of SOEs in South Korea and El Salvador It explores their diverging legal, institutional, and political responses to explore a crucial question: what makes a constitution resilient against emergency authoritarianism?

The following article contains the sole opinion of the writer and does not represent the opinion of CULS, the University, nor our Sponsors

South Korea: Yoon’s Martial Law

The South Korean Constitution provides that the President may declare martial law in an emergency when “military necessity” or “public safety and order” are under serious threat. This enables the restriction or even suspension of ordinary legal rights, such as freedom of speech and assembly, as well as warrantless arrests and searches To prevent the abuse of martial law, the National Assembly may order it to be lifted with a majority vote

On 3 December 2024, President Yoon Suk Yeol made a surprise declaration of martial law in a late-night television broadcast, claiming to be acting against an “anti-state” communist conspiracy orchestrated by a “legislative dictatorship” Orders for the arrest of Yoon’s opponents, including National Assembly members, judges, and political commentators, were issued Multiple military and police units were ordered to surround the National Assembly to prevent lawmakers from entering the building and holding a vote to end martial law

Despite the best efforts of Yoon and a handful of close allies, his declaration of martial law quickly backfired –protesters surrounded the National Assembly, and lawmakers breached the perimeter set up by police, with some even climbing fences Soldiers failed to stop the vote, with many reluctant to use force, while staff brandished fire extinguishers and built makeshift barricades By 01:00, less than 3 hours

after Yoon’s martial law declaration, the National Assembly had voted to end it, and by 05:00, Yoon’s cabinet announced it was to be lifted

El Salvador: Bukele’s Consolidation of Power

Article 29 of the Salvadoran Constitution allows for the suspension, in part or in whole, of six other constitutional articles. This includes freedom of expression (Article 6) and association (Article 7), the presumption of innocence, right to a public trial, and right to legal representation (Article 12), and the prohibition of unlawful detention (Article 13) The suspensions may be enacted by an executive decree or by legislative decree (with the support of ¾ of elected deputies required for the suspension of Articles 12 and 13) The suspension of constitutional guarantees is automatically lifted after 30 days; however, the suspension may be renewed every 30 days indefinitely.

Nayib Bukele assumed the presidency of El Salvador in June 2019 for a 5-year term, in the context of a severe gang crisis In 2020, following the Assembly’s refusal to approve a large loan to fund police militarisation, Bukele convened the Legislative Assembly for an extraordinary special session under Article 167 of the constitution, intended for emergencies He entered the session accompanied by 40 soldiers, stating, “it’s clear who’s in control of the situation”. The following day, the Supreme Court ruled that the emergency session was unconstitutional The next year, Bukele’s party won a large majority in legislative elections. This enabled him to replace all five judges of the Supreme Court’s Constitutional Chamber (despite the original judges deeming it unconstitutional) The new Constitutional Chamber soon issued a ruling contrary to the firmly established principle that presidents could not be re-elected for consecutive terms, finding that immediate presidential reelection was permissible. This allowed

Bukele to be re-elected President in 2024, a decision that has been widely regarded as an “unconstitutional mutation” The culmination of his consolidation of power came in March 2022, when the Legislative Assembly, under Article 29 of the constitution, declared a 30-day state of exception suspending basic rights and due process This state of exception continues to the present, now having been extended for the 44th time (as of writing). The consequences of the suspension of constitutional rights in El Salvador have been vast: almost 2% of the adult population is now incarcerated in harsh prison conditions, individuals are held without trial for years, and mass trials of up to 900 defendants at a time are permitted Torture and other human rights abuses have become increasingly frequent, while the freedom of the press to scrutinise government actions continues to be restricted Unlike Yoon’s martial law, Bukele’s “ emergency authoritarianism” has yet to be contained; this article will now turn to why

Comparing Constitutional Resilience

For the purposes of this comparison, three broad components of constitutional resilience can be identified: (1) legal, (2) institutional, and (3) political. Legal resilience refers to the substantive and procedural safeguards built into the design of a constitution, combined with the judiciary’s ability to enforce them Institutional resilience is defined by the willingness and ability of state institutions and individual state agents to protect the constitutional order Finally, political resilience depends upon the degree to which opposition parties, civil society, and the general populace can mobilise to resist authoritarianism

(1) Legal resilience: South Korea and El Salvador are both unitary presidential republics with civil law systems Within this common frame of reference, specific differences in the construction of their constitutions can be highlighted. Firstly, Article 30 of the Salvadoran Constitution places a 30-day time limit on the suspension of constitutional articles laid out in Article 29, whereas no such automatic limit exists for martial law in South Korea. Although this provides a valuable safeguard in theory, the ability to reset the time limit every 30 days indefinitely, as Bukele has done for over 3 years, has rendered it largely. ineffective in

preventing abuse A more important element of constitutional design is the role of the legislature in accepting or denying the use of SOEs In South Korea, the National Assembly must be notified of the imposition of martial law and can order its lifting with a majority of its members As events in 2024 demonstrated, this can be a very quick and effective means of stopping a wrongful SOE; however, it relies on a legislature willing to oppose the executive This is evident when El Salvador’s legislature, empowered by a similar albeit slightly vaguer constitutional provision (Article 31: the Legislative Assembly “shall re-establish [constitutional] guarantees” when the circumstances that motivate them disappear), has not put an end to El Salvador’s constant SOE El Salvador’s Constitution even arguably gives the legislature more power, since, as per Article 29, only it can order a suspension of certain rights contained in Articles 12 and 13

The capacity of Salvadoran and South Korean judiciaries to resist emergency authoritarianism can also be contrasted El Salvador’s pre-2021 Supreme Court had been willing to block unconstitutional consecutive presidential terms and Bukele’s illegal actions – it may have intervened in Bukele’s later abuse of SOEs However, the arbitrary dismissal of all five justices in 2021 and their replacement with

Bukele loyalists severely undermined the judiciary’s independence and willingness to protect the rule of law. This has been compounded by judicial reform laws that mandate the dismissal of all judges over 60 years old unless there are necessary or special reasons, allowing the retention of loyal older judges In contrast, although South Korean courts did not play an immediate role in stopping Yoon’s imposition of martial law, they have been at the forefront of subsequent efforts to hold those involved, including Yoon himself, to account through impeachment and criminal trials A demonstrated willingness of courts to impeach and punish leaders who attempt to consolidate power through unconstitutional SOEs may be valuable as a deterrent against any future would-be authoritarians

Overall, the two case studies highlight the importance of legal resilience. Constitutional construction, such as provisions requiring legislative consent, is important in providing mechanisms for constitutional actors to stop the abuse of SOEs. Furthermore, the survival of an independent and strong judicial branch is crucial to preventing and potentially punishing emergency authoritarianism Despite this, events in both countries demonstrate that the existence and efficacy of legal resilience are highly contingent on other institutional and political conditions

(2) Institutional resilience: perhaps the most important reason for President Yoon’s martial law attempt collapsing so quickly was resistance and non-cooperation from large portions of the state Despite the deployment of special forces, police, and armoured vehicles, Yoon was unable to prevent lawmakers from entering and voting in the National Assembly building Whereas much of this can be credited to the tenacity of the politicians, the non-cooperation of leaders and those on the ground was equally important in preventing bloodshed A general refused to order the breach of the plenary chamber or to give soldiers live ammunition, while individual soldiers have testified to acting slowly and reluctantly A Counterintelligence Command raid on the Electoral Commission’s offices was hindered by officers who refused to follow orders they deemed illegal and instead stalled their work by eating ramen at a nearby convenience store Additionally, many of the arrest orders issued against Yoon’s political opponents, including many National Assembly members, went unexecuted. These facts can be contrasted to events in El Salvador, where security forces have consistently been complicit in Bukele’s authoritarianism, with soldiers aiding Bukele’s attempts to intimidate Legislative Assembly members and the police and military being implicated in numerous human rights violations

(3) Political resilience: Enjoying a large majority in the Legislative assembly since 2021 and high polling, Bukele has faced little resistance from the Legislative Assembly, opposition groups, and the populace generally. In contrast, at the time of his martial law decree, Yoon was facing consistent polls of over 70% disapproval and did not have a majority in the National Assembly. This, combined with the collective memory of the brutality of previous periods of martial law, particularly the 1980 Gwangju Uprising, helped mobilise thousands of protesters within hours: many of whom aided lawmakers in gaining entry to the National Assembly. Political resistance is also highly dependent on whether the “ emergency ” which justifies authoritarian measures is viewed as legitimateIn the Salvadoran context, there was undeniably a serious epidemic of violent crime and gang activity that previous administrations had failed to fully address Given the constant violence, many Salvadorans seem to have adopted an “ends justify the means ” mentality: a willingness to sacrifice civil liberties and due process

in return for relative stability and safety from gangs This differs from Yoon’s justifications for martial law – an already unpopular leader, his accusations that opposition parties were running a “legislative dictatorship” secretly allied to North Korea largely fell flat It is particularly noteworthy that elements within Yoon’s circle had discussed instigating a crisis at the border with North Korea to help justify martial law; it is worth considering whether had this occurred, Yoon’s plans may have been more successful Ultimately, the nature and perceived legitimacy of a crisis, alongside the popularity of a leader and their control over the legislature, and other characteristics of a nation’s particular political culture, determine the degree of political resilience to emergency authoritarianism Strong resistance from the populace and powerful opposition parties in the legislature guard effectively against authoritarian threats to the constitutional order, while a passive or supportive population and weak political opposition may enable even the strongest constitutional systems to be undermined

Conclusion

South Korea and El Salvador are just two contemporary examples of emergency authoritarianism and the varying degrees of constitutional resilience to it Coups and democratic backsliding have been widespread in recent years. In the United States, Trump has recently suggested invoking the Insurrection Act, while in Hungary, Viktor Orbán continues to use states of emergency to rule by decree. This article aims to illuminate some of the most important elements of constitutional resilience through a snapshot of recent events in two very different countries, with very different outcomes. What is clear is that law does not exist in a vacuum; constitutional resilience depends not only on how well legal provisions are drafted, but also on a range of other intertwined institutional and political elements Emergency authoritarianism is not a phenomenon confined to a single jurisdiction; rather, it is an international threat to the rule of law, human rights, and constitutionalism. Only by adopting an internationalist and interdisciplinary approach through comparative law can legal scholarship seek to understand how to safeguard against it.

Bibliography

1 Constitute Project, ‘El Salvador 1983 (Rev 2014) Constitution - Constitute’ (Constituteprojectorg) <https://constituteprojectorg/constitution/El Salvador 2014> accessed 24 November 2025

2. Da-gyum J, ‘Full Text of South Korean President Yoon Suk Yeol’s Emergency Martial Law Declaration - the Korea Herald’ (The Korea Herald, 3 December 2024) <https://www.koreaherald.com/article/10012293>

3. El Salvador INFO, ‘The Salvadoran State of Exception Gets Extended for Thirty More Days’ (El Salvador INFO10 January 2024) <https://elsalvadorinfo.net/the-salvadoran-state-ofexception-gets-extended-for-another-30-days/> accessed 24 November 2025

2024) <https://wwwhanicokr/arti/politics/assembly/1171869html> accessed 24 November 2025

5 Haye-ah L, ‘Army Special Warfare Commander Says He Defied Order to Drag out Lawmakers’ Yonhap News Agency (6 December 2024) <https://enynacokr/view/AEN20241206005700315?section=national/defense> accessed 24 November 2025

6 https://koreajoongangdailyjoinscom, ‘Four Months of Turmoil: Timeline of Yoon’s Declaration of Martial Law and the Aftermath’ (Korea JoongAng Daily, 3 April 2025) <https://koreajoongangdailyjoinscom/news/2025-04-04/national/politics/Timeline-ofPresident-Yoons-martial-law-declaration-and-aftermath/2250696>

7 Human Rights Watch, ‘El Salvador: New Laws Threaten Judicial Independence’ (Human Rights Watch, 2 September 2021) <https://wwwhrworg/news/2021/09/02/el-salvador-newlaws-threaten-judicial-independence> accessed 24 November 2025

8 Ignacio Hernández G J, ‘The Constitutional Chamber in El Salvador and Presidential Reelection: Another Case of Constitutional Authoritarian-Populism’ (wwwiconnectblogcom10 September 2021) <https://wwwiconnectblogcom/theconstitutional-chamber-in-el-salvador-and-presidential-reelection-another-case-ofconstitutional-authoritarian-populism/# edn5> accessed 24 November 2025

9. Jonge L de and others, ‘Is the Far Right a Global Phenomenon? Comparing Europe and Latin America: A Scholarly Exchange’ (2024) 31 Nations and Nationalism

10. Korean Legislation Research Institute, ‘Constitution of the Republic of Korea’ <https://elaw.klri.re.kr/eng service/lawView.do?lang=ENG&hseq=1> accessed 24 November 2025

11 Lebowitz M, ‘Vance Says Trump Is “Looking at All His Options” as the President Threatens to Invoke the Insurrection Act’ (NBC News, 12 October 2025) <https://wwwnbcnewscom/politics/white-house/vance-trump-options-invokeinsurrection-act-national-guard-rcna237060> accessed 12 October 2025

12 Meléndez-Sánchez M, ‘Latin America Erupts: Millennial Authoritarianism in El Salvador’ (2021) 32 Journal of Democracy <https://wwwjournalofdemocracyorg/articles/latinamerica-erupts-millennial-authoritarianism-in-el-salvador/>

13 Mészáros G, ‘How Misuse of Emergency Powers Dismantled the Rule of Law in Hungary’ (2024) 57 Israel Law Review 288 <https://wwwcambridgeorg/core/journals/israel-lawreview/article/how-misuse-of-emergency-powers-dismantled-the-rule-of-law-inhungary/D6E72B8E0BF3BE202CE4036C89DECF3A> accessed 12 December 2025

14 Ng K, Bicker L and Marsh N, ‘President Yoon’s Arrest List Included Own Party Leader’ BBC News (6 December 2024) <https://wwwbbccouk/news/articles/cy8y7ggm89lo>

15 Peltz P, ‘The Abuse of Emergency Provisions: How and under Which Conditions Declared States of Emergency Foster Democratic Decline’ (2023) <https://papersssrncom/sol3/paperscfm?abstract id=4601543>

16 Rich TS, ‘As Impeachment Verdict Nears, Yoon’s Public Support Remains Dismal’ (Thediplomatcom18 March 2025) <https://thediplomatcom/2025/03/as-impeachmentverdict-nears-yoons-public-support-remains-dismal/> accessed 24 November 2025

17. Sandoval CJ, ‘Mass Trials in El Salvador Are an Alarming Assault on Human Rights’ (WOLA10 August 2023) <https://www.wola.org/analysis/mass-trials-in-el-salvador-are-analarming-assault-on-human-rights/> accessed 24 November 2025

18. Suh J-J, ‘The Making and Unmaking of Yoon’s Martial Law Crisis: Personal Crisis as Manufactured National Emergency, Democratic Resilience as Authentic National Security’ (2025) 57 Critical Asian Studies 434 <https://www.tandfonline.com/doi/full/10.1080/14672715.2025.2531566#abstract> accessed 24 November 2025

19 Vivanco JM, ‘Opinion | President Bukele, Brute Force Is Not the Way Forward for El Salvador’ The New York Times (14 February 2020) <https://wwwnytimescom/2020/02/14/opinion/bukele-el-salvadorhtml> accessed 24 November 2025

20 Wong T, ‘South Korea Martial Law: The Six Hours That Shook the Country’ BBC News (4 December 2024) <https://wwwbbccouk/news/articles/c98lygwd837o>

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Reassessing Crawford’s Principle in the OPT Advisory Opinion

Keyur Gongulur

Introduction

Almost two decades ago, the esteemed James Crawford wrote:

“There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious default of one party and if the consequence of its not being done is serious prejudice to another. The principle that a State cannot rely on its own wrongful conduct to avoid the consequences of its international obligations is capable of novel applications, and circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts”

Specifically, this article will examine whether Crawford’s “estoppel principle” should apply to Palestine in light of the ICJ’s 2024 Advisory Opinion.

Before summarising my overall argument, it is helpful to make a few preliminary points First, this article will make two assumptions: (1) the principle barring a State from relying on its own wrongful conduct to avoid the consequences of its international obligations may, in certain circumstances, apply to confer Statehood on an entity; and (2) that Israel’s unlawful presence in the Occupied Palestinian Territory (OPT) is the sole reason why Palestine does not currently satisfy the requirements of Statehood. Neither of these assumptions is incontrovertible, but both are necessary to frame the discussion While it could therefore be said that this article is entirely academic, as will soon become clear, the analysis nevertheless reveals much about the current state of the principles of self-determination, the prohibition of the use of force, and the distinction between States and nonState territorial units

Second, some commentators argue that Israel’s unlawful presence in the OPT prevents Palestine from achieving Statehood By doing so, Israel blocks Palestine from acquiring the status that would trigger additional

The following article contains the sole opinion of the writer and does not represent the opinion of CULS, the University, nor our Sponsors

international obligations for Israel. This effectively allows it to avoid obligations that would otherwise apply if Palestine were already a State However, this argument collapses if Israel has already violated, or has been found to have violated, the very obligations it would have owed to Palestine had the latter achieved Statehood; the estoppel logic of Crawford’s principle is simply not triggered. This is the claim this article will develop It is argued that even if Israel is responsible for preventing Palestine from becoming a State, it remains in breach of the same obligations it would have owed if Palestine were a State

The recent case of RTI Ltd v MUR Shipping BV[1] offers a valuable insight into core values in the law of contract through the lens of force majeure and “reasonable endeavours” clauses. However, although it attempts to uphold the sanctity of the parties’ legally binding agreement, the case raises potential issues for the law of currency, the effects of force majeure events and the interpretation of contractual terms.

This becomes especially clear when comparing the obligations States owe to each other – as set out in the United Nations General Assembly (UNGA) resolution 2625 1970 (XXV) with the findings of the ICJ in its 2024 Advisory Opinion (from hereon –“OPT AO”).

My analysis requires examining the elements of each of the general principles that govern the relations between States and noting the similarities between those and the obligations that Israel was found to have violated in the OPT AO. It is submitted that the expansion of the prohibition against the use of force and the right of self-determination has led to an overlap between the obligations owed to a “territorial unit” and a State. Critics would argue that a distinction must be drawn between the obligations owed to a State and those owed to a “territorial unit”. However, it

is submitted that the distinction between the rights of a State and the rights of a non-State constitutes an arbitrary and intellectually unsatisfying explanation. Proponents of this distinction fail to consider that the intended beneficiaries of the rights of a State cannot be the State itself, but are, or at least ought to be, the people within it. As it currently stands, the distinction between State and nonState, which once constituted a sacrosanct limit of the boundaries of international law, has been eroded This, as will be argued, is a normatively desirable position, recognising that international law ultimately protects the interests of people, rather than “the State”

Each relevant obligation in Resolution 2625 (XXV) will be examined as well as the obligations the ICJ found Israel in breach of in its OPT AO It is also worth mentioning that the ICJ has affirmed that the Resolution reflects Customary International Law

The Prohibition Against the Threat or Use of Force

Resolution 2625 (XXV) “solemnly proclaims” the principle “that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State [ ]”

The ICJ found that the annexationist policies and practices of Israel in East Jerusalem and the West Bank “[are] contrary to the prohibition of the use of force in international relations and its corollary principle of the nonacquisition of territory by force” Interestingly, the court does not address who the principle of non-use of force is intended to protect in this case. As Milanovic observes:

“...the Court never explains who exactly the Article 2(4) prohibition protects, that is, against whom exactly is Israel unlawfully using force. Is it the State of Palestine, existing or in statu nascendi? Or is it the Palestinian people? Or a Palestinian self-determination territorial unit? The Court just never explains why exactly Article 2(4) even applies”

It seems that the Court implicitly assumes that non-States or territorial units are also beneficiaries of the prohibition on the use or threat of force It appears the Court considers it irrelevant who the target of the force is; so long as a State uses force in its international relations, it is in breach of the principle of non-use of force. This is particularly striking because, prior to this ruling, it was reasonably arguable that the prohibition applied only between States That view was supported by the text of Article 2(4) of the UN Charter, which requires Members to refrain from the threat or use of force “against the territorial

integrity or political independence of any State [ ]” The explicit reference to “States” had suggested that only entities possessing Statehood were beneficiaries of the prohibition.

Now, it does not matter whether the principle of non-use of force is owed to Palestine as a territorial unit or to the Palestinian people. The principle operates unilaterally to prohibit all States from using or threatening to use force in their international relations.

The expansion of the principle of nonuse of force to situations in which a State adopts annexationist practices in respect of a non-State entity means that Israel has not avoided breaching the prohibition on the threat or use of force merely by preventing Palestine from achieving Statehood Accordingly, the estoppel logic underlying Crawford’s principle is not triggered in this case.

The Duty to Settle International Disputes by Peaceful Means

The Resolution provides that States shall settle their international disputes by peaceful means, in a manner that does not endanger international peace, security, or justice. In the OPT Advisory Opinion, the ICJ did not find that Israel acted in breach of this principle That conclusion, however, does not mean that Israel is not in breach of the principle.

It is argued that the reason why the ICJ did not have to rule on whether Israel was in breach of this duty is that it was simply not relevant to the two questions posed to them by the General Assembly. By virtue of the questions, the ICJ’s opinion was focused on the lawfulness of Israel’s “prolonged occupation, settlement and annexation of the Palestinian territory”, and how these policies and practices have affected the “legal status of the occupation”. The questions by the General Assembly did not require the court to enquire into the duty to resolve international disputes peacefully in order to answer it The restrictive nature of the ICJ’s advisory jurisdiction means that, quite frequently, the court cannot rule on whether a certain State’s conduct is in breach of a specific obligation This is an issue of jurisdiction, not substantive law

Accordingly, since the duty to settle international disputes by peaceful means is not confined to States, Israel is clearly bound by it [1] While reasonable lawyers and politicians may disagree as to whether Israel has done enough to discharge this obligation, that disagreement is not relevant to the question of whether the estoppel argument is triggered here. So long as Israel remains bound by the obligation and is not, through wrongful conduct, circumventing it, Crawford’s principle does not apply to confer Palestine with Statehood.

It follows that Israel would be in breach of this duty regardless of whether its policies and practices are preventing Palestine from becoming a State It is therefore not avoiding the wrongful consequences of its conduct.

The Principle of Non-Intervention

Resolution 2625 (XXV) provides that “No State or group of States has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State” The principle of nonintervention flows from the concept of sovereignty, a status reserved exclusively for States This is confirmed by the ICJ in Nicaragua, where the Court held that “a prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely”. The individual obligations listed in the Resolution similarly make clear that the duty is owed to a “State”.

The ICJ did not find that Palestine is a State; instead they assumed that it was a ‘territorial unit” that, presumably, does not enjoy sovereignty. By virtue of this assumption, it appears that by preventing Palestine from achieving Statehood, Israel may effectively be circumventing liability for breaching the principle of non-intervention.

However, this analysis is incomplete. While there is a principle of nonintervention that flows from the broader principle of sovereignty, it appears that there is an alternative, but identical principle of non-intervention that protects a territorial unit such as Palestine. The prohibition of the threat or use of force sits within this broader principle of non-intervention. As the ICJ held in Nicaragua:

“The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State. […] General Assembly resolution 2625 (XXV) equates assistance of this kind with the use of force by the assisting State when the acts committed in another State “involve a threat or use of force”

It appears that all acts violating the prohibition on the threat or use of force also breach the principle of nonintervention; the reverse may not necessarily be true In this sense, the prohibition on the use of force can be understood as a subset of the broader principle of non-intervention As noted above, while there was once a strong argument that the prohibition on the threat or use of force applied only for the benefit of States as sovereign

entities, the ICJ in the OPT AO expanded its scope to cover territorial units such as Palestine. The prohibition, as a rule of Customary International Law, does not operate solely between States; it binds all States irrespective of the entity against which force is threatened or used. Consequently, if the principle of the non-use of force, understood as a “subset” of the principle of non-intervention, has been extended to situations involving nonState territorial units, it logically follows that the principle of non-intervention itself can no longer be viewed as protecting only States. Whether this extension is grounded specifically in the right of self-determination or some other norm remains unclear What is clear, however, is that the obligations flowing from the principle of nonintervention, as articulated in Resolution 2625, now benefit territorial units such as Palestine

This is not to say that the original formulation of non-intervention, rooted in sovereignty, has been displaced. Rather, there is a plausible argument that Customary International Law has generated a distinct yet parallel principle of non-intervention that protects territorial units. This development may be understood as emerging from the heightened normative importance attached to the right of self-determination

If this analysis is accepted, it becomes apparent that Israel has breached the principle of non-intervention, even though the Court did not expressly make such a finding.

The annexationist policies and practices identified by the ICJ plainly violate the principle of nonintervention, [2] as they directly inhibit the Palestinian territorial unit’s freedom to determine its own “political, economic, social and cultural system, and the formulation of foreign policy” Applying the same reasoning used in relation to the duty to settle international disputes peacefully, Israel is therefore not able to circumvent the principle of non-intervention through its wrongful conduct

The Principle of Sovereign Equality of States

The Resolution stipulates that sovereign equality includes the following elements:

“(a) States are juridically equal;

(b) Each State enjoys the rights inherent in full sovereignty;

(d) The territorial integrity and political independence of the State are inviolable;

(e) Each State has the right freely to choose and develop its political, social, economic and cultural systems;

(f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States”

Provisions (a), (b) and (c) are pure benefits that accompany Statehood and sovereignty rather than rights that create corresponding obligations that bind other States Provisions (a) and (b) express status-based qualities that attach automatically to any entity that qualifies as a State. They do not require other States to perform or refrain from any specific act Rather, they simply reflect the legal position and capacities a State has by virtue of being a State Provision (c) presupposes reciprocal Statehood and therefore does not apply vis-à-vis non-State entities.

Provision (f) is a reminder of the general principle that sovereignty is not freedom from the law but freedom within it Accordingly, the fact that Palestine, as a non-State territorial unit, does not benefit from these does not mean that Israel is avoiding the consequences of its unlawful occupation

In contrast, provisions (d) and (e), clearly impose prescriptive obligations However, these obligations significantly overlap with those arising from the right of self-determination. In the OPT AO, the ICJ identified four relevant elements of the right to selfdetermination. First, it held that the right to territorial integrity is “a corollary of the right to selfdetermination”, [3] which overlaps with element (d) of sovereign equality, requiring States to respect the personality, territorial integrity, and political independence of other States. Second, the fourth element of selfdetermination is identical to (e), since both protect the right of a people freely to determine their political status and to pursue their economic, social, and

cultural development. The ICJ found that Israel’s policies and practices breached both these elements of selfdetermination

Accordingly, the overlap between these two elements of selfdetermination and the corresponding elements of sovereign equality demonstrates that Israel is not avoiding responsibility for breaches of the latter by preventing Palestine from achieving Statehood.

However, this reasoning is open to crucial objections. Namely, that the obligations that flow from the principle of sovereign equality benefit the State, while the people are the intended beneficiaries of the obligations that flow from the right to selfdetermination They are two distinct bodies of rights and obligations. While Israel is in breach of the obligations it owes to the Palestinian people, it is circumventing its obligations owed to the State of Palestine through its own unlawful occupation.

overstated in doctrine The State, while a legal person, is not a monolith: it comprises people and, usually, a government Most of the powers conferred on a State in international law cannot be exercised by the State itself but only by the government acting in its name. Many rights and duties in international law (such as the prohibitions on the use of force and intervention, and the principle of sovereign equality) are formally attributed to “the State,” but their normative purpose is to protect the safety, welfare, and freedom of individuals While these rights are owed to the State, their normative foundation lies in securing the wellbeing of natural persons This is what justifies the increasing erosion of the State-Persons divide through the expansion of the right to selfdetermination and the prohibition of the use of force

Critics may argue that the relevant normative foundation is sovereignty. Two points can be made in response

of sovereignty must remain consistent with the people’s right “freely to determine [their] political status and to pursue [their] economic, social and cultural development”.

This leads to the second point: the underlying purpose of “sovereignty” may be to protect the freedom and welfare of natural persons. If the ultimate beneficiaries of obligations owed to the State are in fact its people, then drawing a rigid distinction between the rights of States and those of persons becomes unhelpful.

Some might say this distinction flows from sovereignty being the organising concept of international law However, this conception does not undermine the organising structure of international law. Rather, as Crawford emphasises, sovereignty is a flexible concept Perhaps it is time that we recognise that it has evolved from a status that benefits the State alone to one that recognises that its ultimate beneficiaries must be the people.

[1] NB. This is only insofar as their policies and practices do not breach the right to self-defence. A matter that the ICJ, notably, does not address

[2] The maintenance and expansion of settlements throughout the Occupied Palestinian Territory; the construction of associated infrastructure, including the wall; the exploitation of natural resources within the territory; the proclamation of Jerusalem as Israel’s capital; the comprehensive application of Israeli domestic law in East Jerusalem; and the extensive application of Israeli domestic law in the West Bank, particularly in Area C; See OPT AO at [170]; Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion, ICJ Reports 2025, [170]

[3] [237]; “ a key element of the right to self-determination is the right of a people freely to determine its political status and to pursue its economic, social and cultural development.”

Bibliography

1.Crawford J, Creation of States (2nd Edition, Oxford, 2007), 447-448

2 Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion, ICJ Reports 2025

3 Milanovic M, "No, Recognizing Palestine Would Not Be Contrary to International Law", (EJIL Blog, 31 July 2025)

4.Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (GA Res 2625 1970 (XXV));

5 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986)

6 United Nations Charter, Article 2(4)

7 Statute of the International Court of Justice, Articles 65-66

8 Mavrommatis Palestine Concessions (Greece v UK), 1924 PCIJ (ser B) No. 3 (Aug. 30)

9.Military and Para-military Activities in and against Nicaragua (Nicaragua v USA), ICJ Reports 1986, [205]

10 Crawford J, ‘Sovereignty as a Legal Value’ in Crawford J, Koskenniemi M, The Cambridge Companion to International Law (Cambridge University Press 2012), Page 122

11.Knop K. Statehood: Territory, people, government. In: Crawford J, Koskenniemi M, eds. The Cambridge Companion to International Law Cambridge Companions to Law Cambridge University Press; 2012:95-116

Legal Guardianship of a Child Monarch

– a Critical Assessment

Introduction

It is an inevitability in a system of hereditary monarchy that a child may succeed to the throne before they are deemed ready to rule by the law The system must provide for and strike a balance between the interests of the child Sovereign and those of the State at large Like most monarchies, the United Kingdom provides for a Regent to act in the Sovereign’s stead during their childhood

This article will first introduce the law of guardianship under the Children Act 1989, and then examine the Regency Act 1937 as an exception to that system The Regency Act 1937 creates dual roles: the Regent wields the powers of the Sovereign and the Guardian exercises parental role over the child This article submits that it can be justifiable to exclude the Sovereign from the scope of the Children Act’s judicial oversight However, Parliament must both change the general rules and be more willing to exclude specific individuals from being Regent and Guardian in order to avoid a situation in which the welfare of the Sovereign and the interests of the nation are threatened by an inappropriate Regent-cum-Guardian.

Rory Shankar

The Status of the Sovereign and the Regency Act 1937

Throughout the history of the United Kingdom, there had never been a permanent enactment regulating the entry into a regency until the Regency Act 1937 Parliament preferred to create a Regency if and when the need for one arose

While regencies have occurred in the United Kingdom, they arose because of the incapacity of an adult Sovereign, rather than a Sovereign being underage When George VI acceded to the throne in 1936, his heir was the 11-year-old Princess Elizabeth He quickly requested that Parliament enact a permanent Regency Act, which still governs the law of Regency today

Section 1(1) of the Act creates a Regency when and for as long as the Sovereign remains under the age of eighteen The Regent is appointed under section 3; they must be the person next in the line of succession who is not disqualified from succeeding to the Crown, be domiciled in the United Kingdom, and be an adult

The following article contains the sole opinion of the writer and does not represent the opinion of CULS, the University, nor our Sponsors

The Act also provides for the legal guardianship of a Sovereign in minority in section 5 The exhaustive rules are thus: if the Monarch’s mother is alive, then she shall be Guardian [s5(a)] If she is not alive but the Sovereign is married to someone of full age, then their spouse shall be Guardian [s5(b)]. In all other cases, the Regent shall be Guardian [s5(c)]

The situation of a Sovereign marrying a person of full age is now a dead letter, as the legal age of marriage has since been raised to eighteen by section 1 of the Marriage and Civil Partnership (Minimum Age) Act 2022

The 1st rule [s5(a)] and the residuary rule [s5(c)] are therefore the relevant ones whose effect will be evaluated later.

The

Children Act, Legal Guardianship and Parental Responsibility

The relationship of guardian and child (known as the ward) is a longstanding one; Blackstone describes it as bearing ‘ a very near resemblance to [the parent-child relationship], and is plainly derived out of it’ This was reflected in the rights and duties of a guardian being the same as those of a father’s, but the relationship of a guardian is a time-limited one that expires upon the ward’s coming of age

Historically, the law has recognised parents’ role in raising and caring for their child and their property The

language of guardianship to describe all parental or quasi-parental legal relationships has not been used since the passage of the Children Act 1989. As Scherpe notes, the 1989 Act presaged a definite shift towards a more balanced view of parenthood by introducing the idea of ‘parental responsibility’. This included the rights and duties a parent had under existing law, meaning that the common law substance of the guardian-ward relationship continues to persist under the label of parental responsibility

However, a guardian under the Children Act is now used to describe a non-parent who is appointed to exercise parental responsibility over a child. They are appointed by the court or by the will of a parent who has parental responsibility

Interaction between the Regency Act 1937 and the Children Act 1989

Both Acts purport to govern guardianship allocation, but leave it to the general law to determine the substantive content, meaning they share the same content

There is a degree of inconsistency that needs to be resolved between these two Acts. The Children Act section 5(13) declares that ‘A guardian of a child may only be appointed in accordance with the provisions of this section’ This is obviously problematic in relation to section 5 of the Regency Act, which clearly governs the appointment of a guardian in the specific case of the ward being the Sovereign

It could be the case that the Children Act, therefore, impliedly repealed section 5 of the Regency Act Implied repeal occurs when a subsequent Act of Parliament does not expressly repeal a previous Act of Parliament, but due to the inconsistency between the later and earlier Acts, the earlier Act or a part of that Act is said to have been repealed.

However, this is not the case here. It is a general notion of statutory interpretation that generalia specialibus non derogant (“general provisions do not override special ones) The rule in English law is that if the general rules laid down in the later Act (here, the Children Act 1989) are ‘capable of reasonable and sensible application’ if not deployed when the specific rules in the earlier Act (here, the Regency Act 1937) apply, then both are applied in their respective fields As the Children Act applies to every child apart from one (who is theoretical, considering that there has not been a child Sovereign governed by the Act), these Acts are reconcilable, and the Regency Act does apply to a child Sovereign

Regency Act: an evaluation

While the Regency Act provides for no judicial discretion in the appointment of the Monarch’s guardianship, the unique position of the Sovereign can justify this As the embodiment of the state, the Sovereign is a sui generis figure; Parliament therefore has both a direct interest in their upbringing and should have the institutional competence to legislate to provide for the designation of a Guardian. A court’s ability to undertake a multifactorial assessment of the facts of the case and rule in the child’s best interests under the Children Act is valuable, but the upbringing of the monarch is not just a private matter It is also, in material terms, a matter of high politics, and Parliament, which has been entrusted with the stewardship of the nation, should be able to decide on the rules affecting guardianship. This justification for the exclusion is acceptable, given that Parliament is a vigilant observer of potential hiccups and would be able to respond quickly by altering the rules on an ad hoc basis.

The first rule of the Sovereign’s legal guardianship in section 5(a) is in and of itself wholly unobjectionable; the mother of a Sovereign would generally be one of the closest people to the Sovereign and have already been involved in the raising of the child

Provision for Fathers

What is noticeable here is a key absence of provision for the Sovereign’s father to become their legal guardian This was likely because of the traditional operation of male-preference primogeniture succession: as a child Monarch would have likely inherited from their father, there is little point in providing for a deceased father as Guardian.

This is certainly an unjustifiable omission. Female-line inheritance is by no means exceptional, and going forward, absolute primogeniture will make female-line succession more likely Indeed, Parliament recognised this omission in 1953 and provided for Prince Philip, rather than Princess Margaret, to become Regent if Queen Elizabeth II had died before Charles came of age The lack of the father’s role in the upbringing of his Monarch son was considered undesirable, and this should be reflected on a longterm basis Unfortunately, Parliament only legislated for the specific situation they were faced with, and the original 1937 rules continue to apply today.

The Residuary Appointment of the Regent as Legal Guardian (s5(c))

This category would be the most potentially problematic The two specific appointments of legal guardians in s5(a) and (b) of the Regency Act are at least defined by their connection to the Sovereign, which guarantees some degree of closeness However, the designation of the Regent is not defined by the relationship with the Sovereign as a person, but rather, they are appointed by their place in the line of succession It is true that the Sovereign and Regent must necessarily be related for both to be in the line of succession in the first place, but it is more likely for them to be a slightly more distant relation. The Regent would generally be an aunt, uncle or older cousin to the Monarch

A ‘nightmare’ scenario could be envisaged here: if at any point before 2031, King Charles and Prince William both die, Prince George would become King His Guardian would be his mother, Princess Catherine, but if she were to die as well, then the Regent would be George’s legal guardian The Regent would likely not currently be Prince Harry, as he is no longer domiciled in the United Kingdom, meaning that the status of Regent and legal guardianship of King George would be bestowed on Andrew Mountbatten-Windsor, whose relationship with Jeffrey Epstein and allegations of sexual abuse make him clearly unsuitable Page 28

for any public role King Charles’ decision to strip him of his title as Prince does not affect his ability to become Regent which is dependent on his place in the line of succession An Act of Parliament is needed to exclude him from the line of succession Andrew becoming Regent-cum-Guardian may be unlikely, but it could theoretically happen; and it demonstrates the dangers of a non-discretionary appointment of a legal guardian To give Andrew all the powers that a parent would have over the King, including control over their extensive private estate and their upbringing, is clearly inadvisable

The rules governing the designation of the Regent itself are not intended to be evaluated in this article per se; the argument in favour of replacing the traditional line of succession with a more meritocratic and flexible system, is an argument against a monarchical system of governance itself However, it is entirely legitimate and logically coherent with the principle of hereditary monarchy to exclude one person or group of persons from the line of succession

Indeed, British history has been littered with this practice Excluding specific people from the ability to be Regent and Guardian is a natural extension of this practice The current makeshift system of removing undesirable figures from the working Royal Family but not excluding them from becoming Regent or Guardian is a gamble that is not necessary to take

The Danger of Automatic Operation and Why Parliament Should Act proactively

Death comes for us all, including Monarchs As the Crown passes (‘demises’) to the next Monarch on death, the Regency Act’s provisions operate automatically, including the designation of the Regent and the Guardian The Regency was not intended to be an inflexible embedded set of rules, but a long-term default set of rules – indeed, section 5 of the Act declares itself to be the rules governing appointment of the Guardian, ‘unless Parliament otherwise so determines’ Parliament is theoretically free to amend or replace the Regency Act.

A Guardian who is not Regent (who would be the Sovereign’s mother) would be easy to remove from her role by an Act while she is holding office, but an Act removing the Regent or Regent-cum-Guardian would have complications, as the Act could only become law if the Regent gave it Royal Assent themselves. This would at best be awkward and at worst cause a constitutional crisis if the Regent refused to give Assent.

As a Regent derives their position from their place in the line of succession, their removal from the line of succession would be the simplest solution, but the Regent is statutorily unable to give Royal Assent to any Bill of Parliament that would alter the succession to the Crown

Parliament would therefore wish to alter the succession before a possible regency.

However, there is a constitutional convention that any change to the succession of the Crown must be agreed to by all Commonwealth Realms, making any alteration much more difficult and extensive

However, the restriction in the Regency Act on the line of succession does not affect Parliament’s ability to change the rules of eligibility to be Regent and Guardian, which also falls outside the convention on Commonwealth agreement

Conclusion

The Regency Act 1937 has to do the awkward job of juggling both the welfare of a minor Sovereign and maintaining constitutional stability

As a default framework for appointment of Guardians, the Act is generally fit for purpose, though two straightforward improvements would enhance it: providing for fathers to serve as Guardians and removing the now-redundant provision for an adult spouse

Parliament must additionally be willing to act decisively to exclude unsuitable individuals from attaining very high positions of State, which could always happen under a system of hereditary monarchy Without altering the line of succession (which is far more difficult due to the Commonwealth consultations needed), exclusions of persons from holding the offices of Regent and Guardian are a clean solution. Given the significant difficulty of amending the law during a Regency, Parliament must act pre-emptively" The exclusion of the Sovereign from the scope of the Children Act is only justifiable if Parliament is flexible and willing to exclude unsuitable Guardians Only through proactive exclusion of unsuitable individuals can Parliament fulfill its duty to protect both the child on the throne and the throne itself

Bibliography

1 Bailey D and L Norbury, Bennion on Statutory Interpretation (8th edn, LexisNexis Butterworths 2020)

2 Blackstone W, Commentaries on the Laws of England: Book I: Of the Rights of Persons (Clarendon 1765)

3 Brazier R, ‘Royal Incapacity and Constitutional Continuity: The Regent and Counsellors of State’ [2005] 64(2) CLJ 352

4 Farran C, ‘The Regency Act 1953’ (1954) MLR 17(2)

5 Hazell R, ‘Prince Andrew and the future of the monarchy’ (The Constitution Unit Blog, November 2025) <https://constitution-unitcom/2025/11/08/prince-andrew-and-the-futureof-the-monarchy/> accessed 9 January 2026

6 Scherpe J, “Parental Responsibility” in J Scherpe and S Gilmore, Family Matters: Essays in Honour of John Eekelaar (Intersentia 2022)

7. Twomey A, ‘Changing the Rules of Succession to the Throne’ [2011] 4(2) P.L. 378

8. University College London, ‘The Regency Acts: FAQs’ (University College London, November 2025) <https://www.ucl.ac.uk/social-historical-sciences/constitutionunit/constitution-unit-research-areas/monarchy-church-and-state/regency-acts-faqs> accessed 26 November 2025

Key terms:

sui generis: Refers to anything that is peculiar to itself, denoting an independent legal classification

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CrimiNAL LAW

Matthew Low Tze Long Mark: 75

‘Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for [those consequences] would amount to punishing a moral innocent.’

(KARAKATSANIS

J.)

To what extent, if at all, does the criminal law of England and Wales maintain this focus in its rules on legal causation? Page 34

Karakatsanis J’s statement argues that legal causation should be inherently normative, and further that causation should be only found in tandem with findings of moral culpability I submit that this stretches the function of causation too far – while I agree that causation findings are a normative exercise, it is important not to neglect the role of mens rea in findings of moral responsibility too

Causation is normatively sensitive

In the central case of Hughes, the Supreme Court established that the wrongful nature of D’s behaviour must be causally salient to the resulting outcome. In that case, D had been driving without a valid license or insurance V who was driving recklessly and intoxicated, was wholly at fault for crashing into him and dying While D was charged with causing V’s death under section 3ZB of the Road Traffic Act 1988, the Supreme Court held that D was not causally responsible for V’s death as his driving was otherwise faultless, thereby reversing his conviction. This is arguably an intuitive outcome, but has been criticised –notably, Simester argues that the decision loses sight of the “core, physical dimension of causation”.

Instead, Simester argues for an account of causation that splits into two limbs – direct causation, which is concerned only with mechanical causation, and indirect causation, which arises from the consideration of “morally sensitive principles” to bridge instances of direct causation rather than undermine a factual pattern.

However, I submit that his account overestimates the ability of mechanical analyses to provide coherent doctrines of causation To give an example, Simester contends that D caused V’s death “by driving” (as per the RTA) in that the forward momentum of his vehicle was mechanically involved in causing V’s heart to stop beating. However, it is physically possible to imagine scenarios (such as if V drove directly into D from behind, with the forward momentum of D’s car thus lessening the impact) where the forward momentum of the car was irrelevant to the mechanical causation of V’s death. Would Simester then say that D is absolved of causal responsibility? It seems implausible and contradictory.

Apart from Hughes, this can also be seen in the inherently normative distinction between an act and omission in the criminal law. A physicalist explanation such as Moore’s definition of acts as “willed bodily movements” fail to explain case-law –for example, Speck, where the Court of Appeal ruled that D displayed ““sufficient activity for a conviction” of gross indecency with a child in in allowing her hand to rest on his trousers for a period of 5 minutes. Therefore, Wilson’s definition of omissions as as special cases of inaction where there is a normative expectation for the person to act is more appropriate – but it demonstrates the importance of normative considerations in findings of legal causation, especially with respect to the act/omission divide as it has

implications on autonomy and criminalisation (Jareborg notes that criminalisation of omissions “cuts off all act alternatives except one”, while criminalisation of acts “cuts off only one act alternative”)

Therefore, I agree with Pedain that findings of legal causation are inherently intuitive, based on the distinct “factual constellation” of the case at hand. By this, it must also be understood that there is thus a moral element to determining causation. While I nonetheless agree with Simester that mechanical causation is important to finding legal causation, I argue that it is by no means determinative, and should be considered amongst other principles such as Hart & Honoré’s principle of the free, deliberate, and informed actor (Kennedy (No 2)), and perhaps even Feinberg’s “trigger” principles, as “topoi” or principles to be considered in a more holistic understanding of causation (Pedain).

Causation does not impute moral blame

However, Ormerod's claim that the Supreme Court thus reintroduced a requirement of “blameworthiness” should be carefully approached. This might lead to the conclusion that the Supreme Court was performing “radical interpretive surgery” on the statute (Elliott), and changing the meaning of the offence as Parliament meant it to be

Rather, it might be more precisely argued that the best explanation for Hughes is that the risks that the prohibition (and Parliament) abstractly wanted to guard against were not concretely “at play” in the situation (D was driving safely, and there was nothing wrong with his car) (Pedain) On such a basis, legal causation might justifiably not be found.

The importance of the judgment in Hughes should not be overstated – it is an element of causation that will likely arise only prominently in strict liability offences, and more specifically strict liability offences with consequence elements in the actus reus This is relatively rare. This is because the bulk of the heavy lifting in findings of moral responsibility should lie in the mens rea of criminal offences. I will argue this with reference to two points: firstly, an actor might rightly be a legal cause without being blameworthy, and secondly, an actor might rightly not be a legal cause even if he is blameworthy.

First, the law does make provisions for actors to be legal causes without being blameworthy This is because of the mens rea function. To give just one example, D can breach criminal interests without being blameworthy as he might not have foreseen a risk, as per the test for subjective recklessness (G and Another). On the facts of G and Another, the defendants set fire to newspapers at the back of a shop. This fire spread and damaged the shop, as well as nearby shops

The courts found that they were not blameworthy (whether they should have been held as being blameworthy is part of a different discussion) and therefore acquitted them, despite them unquestionably having caused the fire. Alternatively, this capability of the law to account for blameworthiness without stuffing it all into causation findings might be found in the innocent agent doctrine in the law of complicity – if S procured a (nonstrict liability) offence from P but P lacked mens rea while S had mens rea, P is an innocent agent and S can be liable as a principal (Michael)

Second, an actor might rightly not be a legal cause even if he is blameworthy For example, in the recent case of Wallace, D threw acid onto her exboyfriend’s (V) face, causing severe burns and permanent disfigurement and pain If the acid had killed him immediately, D would undoubtedly have caused his death and been convicted of murder, having the requisite mens rea (of intending at least grievous bodily harm –Cunningham (Anthony). However, it did not, and V instead went to Belgium to commit suicide months later

The Court of Appeal quashed her conviction, saying that she only could be held as having caused his death if it was reasonably foreseeable at the time of her commission of the offence On retrial, the jury found that this was not so I find this outcome in causation to be correct – the reasonable foreseeability test appears to be an (imperfect) approximation of Feinberg’s “trigger” principle, which recognises a more nuanced account that actions are always influenced by prior actions –therefore, whether V’s act was caused by D should be recognised by how “expectable” it was In this case, the jury found that it was not so expectable Therefore, V was rightly acquitted on the facts. This shows that legal causation can rightly not be found even if D is sufficiently blameworthy for an offence.

These two contrasting sets of examples show the importance of mens rea and actus reus as two free-standing principles in the law to independently establish the legal consequences (actus reus) and “moral innocence or guilt” of D’s conduct (mens rea), as rightly argued by Chan & Simester Karakatsanis J’s statement arguably overreaches in a subtle way, thereby conflating them – while legal causation is indeed a normative exercise, a “focus” on finding blameworthiness or “moral innocence” should still lie primarily with the mens rea function, and it remains desirable to consider actus reus and mens rea separately when it is possible to do so.

CoMPANY law

‘The longstanding criticism of legal capital is that its approach is not impactful, either for the internal corporate constituencies whose interests it is meant to protect or with respect to broader societal concerns.’ (FERRAN 2019)

Discuss.

Ferran (2019) distinguishes between internal corporate constituencies, whose interests the legal capital rules are meant to protect, and broader societal concerns This essay will argue that the legal capital rules are not just meant to protect internal corporate constituencies such as shareholders, but also broader societal concerns such as the risks borne by creditors of companies As a whole, Ferran (2019) is broadly right to suggest that the approach is not impactful, although they occasionally provide at best, a minimum level of protection I will first define internal corporate constituencies and the broader societal concerns, particularly in respect of creditors, before examining the rules governing raising capital and maintaining capital in this area Finally, I will discuss the possibility of legal capital rules to be reformed post-Brexit, and how in the present context, it is bolstered by the law’s approach to directors’ duties and insolvency law

Joyce Mau | Mark: 76

Internal corporate constituencies and broader societal concerns:

The internal corporate constituencies referred to by Ferran (2019) include internal stakeholders of the company, namely its shareholders, and including its employees and directors. Notably, the legal capital rules do seek to protect shareholders, clearly seen through methods for payment of shares and the rules on share buybacks and redemptions, which, if constitutes a class right, requires a super-majority for class rights holders to approve (s630).

Ferran (2019) refers to broader societal concerns, which she links to the risk-bearing capacity of creditors in the modern economy. Ferran (2019) explains that unlike the time of the CA 2006 where the UK economy was riding high, today, the predominant discussion centres around the breakdown of the social contract between companies and wider society (Plender (2018)). She links this to the financial crisis of 2008, which revealed the riskshifting effects of excessive pursuit of short-term profitability for the benefit of shareholders, with creditors and the general public, rather than shareholders, being left to pick up the bill for failure (Tooze (2018)) As such, legal capital rules represent a form of checks and balances on strategic corporate decisions including those relating to capital, investment and returning value to shareholders which will best support long term success (Ferran (2019))

As such, the legal capital rules also seek to protect such broader societal concerns particularly in relation to creditors. Whether this approach is impactful remains to be seen.

The legal capital approach: is it impactful?

There are two key types of legal capital rules: raising capital and maintenance of capital rules. I will examine each in turn

Raising capital

Minimum capital rules

The authorised minimum in relation to the nominal value of a public company’s allotted share capital is (a) £50,000 or (b) the prescribed equivalent (s763). Of this authorised minimum, at least ¼ must be paid up (£12,500) (s586). The rest may remain unpaid though subject to being called up by the company at a later date or on its liquidation.

Prima facie, Armour (2000) explains these rules can be understood as a system of creditor protection when viewed in conjunction with the expert valuation rules regarding raising of capital. They seek to ensure a minimum level of assets is contributed, and arguably protect involuntary creditors. However, this argument is weak as it is merely a requirement for public companies to begin trading Arguably, these assets can be lawfully dissipated in the course of its trading, and therefore, the ‘protection’ offered to creditors is not as meaningful as he may assume

Furthermore, the sum of £50,000 is highlighted by Gower (2021) to be too low effectively to protect creditors, albeit grounded in a sound policy reason for fear of discouraging the incorporation of companies

Notably, this also does not apply to private companies, which Armour (2006) sees as an advantage as there is no entry price on limited liability which allows small firms to engage in entrepreneurial activities that can maximise shareholding. However, this is still a rather weak link. Therefore, the minimum capital rules have little meaningful connection to protecting shareholder or creditor interests.

Payment of shares

The rules in relation to payment of shares confer better benefits on shareholders as opposed to the minimum capital rules. Notably directors must exercise power to allot shares (s549(1)) in accordance with s551 (authorisation by the company) and existing shareholders have a mandatory right of preemption in respect of a new offer of shares (s561(1)(a)), and such an offer must be kept open for at least 14 days (s562(5)). Directors authorised to allot shares under s551 may disapply pre-emption rights by articles or special resolution (s570). Notably, pre-emption rules ensure that shareholders are able to purchase shares first, which could benefit existing shareholders in the company by acquiring a larger slice of ownership, and as a consequence, greater dividends. However, private companies may easily opt out of such pre-emption rights by including a provision in their articles (s567) which renders this advantage for shareholders in private companies rather weak

Another key rule in this area is that shares cannot be allotted at a discount (s580) for both private and public companies As Gower (2021) explains, this rule was intended to protect existing shareholders from directors who proposed to devalue or dilute the existing shareholders’ interest in the company by issuing shares to new shareholders too cheaply. However, the nominal value of shares is ultimately set by the company, a low price ultimately means that this concern is less prevalent

Thus, this also has limited impact on creditors (Gower (2021)) and may actually harm creditors’ interests when nearing insolvency as companies are unable to rescue themselves from pricing shares at lower prices that may allow them to be brought back to solvency

Maintenance of capital

There is generally a bigger role for maintenance of capital rules to protect creditors. The objective of these rules, as explained by Lord Watson in Trevor v Whitworth, is that persons who deal with and give credit to a limited company are entitled to assume that no part of the capital has been subsequently paid out, except in the legitimate course of its business. Therefore, it must be noted that the rules on reduction of capital do not operate to bar reduction of capital. Rather, its essential aim is to ensure spending is legitimate. As such, many of the rules in this area are often procedural and not substantive.

No payments out of share capital:

dividends and share buybacks

Dividend payments cannot be made out of share capital (Flitcroft’s case) and can only be made out of profits available for the purpose (s830(1)) Similarly, a limited company may only purchase its own shares out of (i) distributable profits of the company or (ii) the proceeds of a fresh issue of shares made for the purpose of financing the purchase (s692(2)(a))

However, private companies are again exempt from prohibitions on share buybacks and redemptions from its share capital (s692(1ZA)). These rules forbidding payments out of share capital ensure that the company is not making a loss through these procedures As Armour (2006) explains, restrictions on the return of capital to shareholders can be best understood as protecting creditors against the risk of opportunistic behaviour by shareholders. Therefore, these controls on share capital reductions seek to ensures short-term opportunistic behaviour do not jeopardise the long-term profitability of the company. Arguably, the procedural rules above do suffice to procedurally streamline companies’ behaviour in reducing their share capital and to ensure their spending is legitimate. However, from a broader perspective, these rules only address the procedural aspects of maintaining legal capital, and as alluded to, companies are still broadly free to reduce their share capital as long as they comply with these rules. Therefore, illegitimate spending is merely avoided, not that spending itself is barred, thereby conferring limited protection for creditors

Share buybacks and redemptions

Nonetheless, if share buybacks and redemptions occur out of shares with a class right, the must obtain consent from the holders of these shares under s630(4) and class right holders can apply to court to cancel the variation (s633) Similarly, in offmarket share buybacks, a resolution is needed (ss695-699) Ultimately, the rights of shareholders are protected here, rather robustly.

Reduction of capital methods

Finally, private companies may reduce their share capital by a special resolution supported by a solvency statement (s641(1)(a)) where the conditions for the resolution and content of solvency statement are regulated by s642 The solvency statement is more cost-effective for private companies as opposed to a court order (Weightmans (2017)), and special resolutions are much more administratively friendly such as to benefit shareholders and the board in these companies. The robust protection to creditors offered by the solvency statement is seen in its strict criminal penalties (Ferran (2019)) if directors do not have reasonable grounds for their opinions (s643) which includes imprisonment (s643(5)) On the other hand, court-approved reductions also entail a confirmation of the special resolution by the company (s641), but arguably the procedure of applying to court is much more cumbersome for the board than a solvency statement

Unlike solvency statements, creditors are given an explicit voice in court-approved reductions such that they have a right to object under s646, which is argued to be beneficial for the creditors (Ferran (2019)). Therefore, there is some protection of the interests of internal corporate constituencies and broader societal concerns for creditors

The modern context

Interaction with directors’ duties and insolvency law

From a broader perspective, these rules are capable of addressing the interests of shareholders and creditors, only to a procedural extent As alluded to, companies are still broadly free to reduce their share capital as long as they comply with these rules. Rather, the real problem that creditors face, which the legal capital rules fail to address, is management issues within the company and whether they will be financially profitable. Therefore, these maintenance of capital rules arguably fail to address the key concerns of creditors. These rules do not stop spending – they merely stop illegitimate spending.

As a consequence, the better solution is not to overly rely on legal capital rules to protect creditors and shareholders. The focus instead, should be whether these rules adequately ensure that corporate spending is legitimate.

Armour (2006) highlights that a one-size-fits-all approach to all companies may negate important differences between companies where the appropriate level of reduction restrictions differ Even so, differing rules on reduction of capital will still fail to address the possibility of management shortfalls, even in light of the numerous procedural restrictions put in place. Rather, management shortfalls are best curtailed by substantive duties of directors, for example, by the modified duty in s172 and the Sequana threshold such that a director is liable for not taking reasonable care when the company is in or bordering on insolvency. Similarly, insolvency law can step in to regulate creditors’ interests when a company enters into insolvent administration under s214 and s213 IA 1986 for fraudulent or wrongful trading, which arguably have a more impactful approach as opposed to legal capital rules in protecting shareholders and creditors, particularly in light of Ferran’s (2019) claim

Reform

It remains to be questioned whether after Brexit, there is scope to reform the legal capital regime. Ultimately, Ferran (2019) raises the possibility of reforming the rules post Brexit, not just because of Brexit but because of its ineffectiveness.

Conclusion

In conclusion, while the legal capital rules have limited abilities to protect the interests of internal corporate constituencies and address broader societal concerns, its impact is largely limited and ought to be reformed.

Olivia Lada Mocarski

Mark: 72

LEGAL HISTORY

‘A more specific explanation which is usually given for the lack of a common-law remedy for defamation before 1500 is that it was a “spiritual” matter more properly within the sphere of the Church courts. But that is better regarded as a description of the situation than as a reason for it.’ (BAKER)

Discuss in relation to the emergence of the action on the case for defamatory words.

Baker convincingly asserts that the ecclesiastical monopoly over remedies for defamation prior to 1500 was ‘better regarded as a description of the situation than as a reason for it’ This is shown by the earlier ability to remedy defamation in local courts and the transplant of the ecclesiastical wrong into the common law after the turn of C16 This essay will first examine the state of remedies for defamation prior to 1500, the reasons for the ecclesiastical monopoly and then the early action on the case for words.

Remedies for defamation prior to 1500

Common law remedies for defamation prior to 1500 were mostly lacking and instead there was an ecclesiastical monopoly. The ecclesiastical action for defamation was rooted in the Council of Oxford 1222 which made the constitution Auctoritate Dei Patris. The constitution was comprised of four

elements: imputation of crime, malice, reputational damage and remedy. Most interestingly, the imputation was in practice not limited to religious crimes because secular crimes could be remedied in the ecclesiastical courts until late C15 (Helmholz). The imputation was so wide as to include non-criminal but generally damaging imputations since as of leprosy (Colmere v Daniell (1413)) or servile status (Ex officio v Cadbury (1424)). This reaffirms Baker’s criticism of spiritually as the justification for the ecclesiastical monopoly: the imputation was not limited to spiritual issues so defamation was in reality not a wholly ‘spiritual matter’ by nature In reality, ecclesiastical ‘defamation had a way of breaking out of its boundaries’ (Helmholz, 1985) The remedies were only religious per the statute Circumspecte Agatis (1286) (excommunication under Auctoritate Dei Patris but in reality, often public penance or apologies were used (Helmholz)). Whilst this might superficially suggest that defamation was by nature spiritual so properly only under the Church’s jurisdiction, the limitation to spiritual remedies was not inherent to the character of defamation – evidenced by later financial remedies provided by the action on the case for words –the limitation was manually constructed. This reinforces Baker’s assertion that the ecclesiastical monopoly was a product of situation, not necessity.

One would be mistaken to think that there were never non-ecclesiastical remedies for defamation prior to

1500 which only serves to reaffirm the situation, not necessity from reason, point of Baker. Prior to 1350 (last local court records), defamation could be remedied under the general understanding of trespass as “wrong” (Milsom), in the local courts The systems happily remedied the same accusations e.g., imputations of secular crimes (called a traitor in Ferur v Leche (1287) and a thief in Fitzrobert v Gillardon (1318)) Of 14 defamation cases heard in one local court 1296-1305, all 14 would have been actionable in the ecclesiastical courts (Helmholz, 1985). The two systems ‘ignored each other more or less amicably’ (Milsom) which supports Baker’s assertion that the eventual ecclesiastical monopoly (c.1350-c.1500) was not the product of necessity because defamation is inherently spiritual but just the product of situation after the narrowing of “trespass” to physical acts killed off defamation in the local courts in the first half of C14 (Helmholz; manor court of Redgrave, Suffolk, Chaplain v Shepherd (1315))

Further in support of Baker’s point about situation, the common law courts were willing to remedy some harmful words prior to 1500 Whilst not as extensive as a general action on the case for words, the ability to remedy some words which would also have fallen under the ecclesiastical wrong evidence that the ecclesiastical monopoly must have been because of situation and not spiritual necessity (eg, scandalum magnatum). Whilst the action of trespass vi et armis for ‘lying in wait’ and threatening to

seize someone as a villein was justified by the fear of the act and not the allegation itself (Cartar v Abbot of Malmesbury (1501)), the words were important as no physical threat was required (Haukyns v Broune (1483)) Therefore, whilst there was no broad defamation remedy, this was consequence of situation and not spiritual necessity

Causes of ecclesiastical monopoly

The above has shown that the church did not have a pure monopoly throughout the period before 1500 However, the church was the primary jurisdiction for defamation Baker correctly asserts that this primacy was not because defamation was at its core a “spiritual matter” The action was treated as a spiritual matter for reasons other than necessity In part, and as shown above, the primarily “spiritual” nature of defamation before 1500 was a consequence of the narrowing of “trespass” in the local courts which killed the rival action as opposed to some overwhelming spiritual nature of defamation (Helmholz) Furthermore, the ecclesiastical courts did not object to oral evidence in the same way as the central courts (e.g., specialty rule from Waltham Carrier, 1321) The central courts demanded evidence of nude vent (Philbin/Baker thesis) when the ecclesiastical courts did not. Therefore, the lack of common law rival action was not the product of spiritual necessity but the product of procedural limitations in the common law courts. The catalyst for the common law courts accepting

defamation as purely spiritual (as in Vicar of Kingston’s Case (1292)) before 1500 was not because of defamation being inherently spiritual but was because of the common law’s general resistance to remedying harmful words instead of harmful deed (Baker). The trend was not reversed until c1500 with assumpsit for nonfeasance and action on the case for words

Whilst it cannot be denied that contemporaries did view defamation as a “wholly spiritual offence” (Anon (1497), Fyneux CJKB), this was not because defamation by nature had to be. The rise of the action on the case for defamation relatively quickly (widely used and accepted by 1530s – Helmholz), suggests that viewing defamation as spiritual was an unquestioned product of convenience and situation Evidently, defamation was not required to be spiritually remedied because of the success of action on the case for words in C16. There was indeed a quick change of tone away from spirituality in C16 e.g., ‘determination of all felonies perpetrated within the realm of England [belonging] of right to the court of the lord king’ (Samford v Walronde (1506)).

Early action on the case for words

The early action on the case for words was the product of a narrowing of the ecclesiastical jurisdiction. The ecclesiastical courts could not decide allegations of secular criminality (Tanner v Cornyssh (1472)). Common usage of writs of prohibition and praemunire

in the second half of C15 had ‘the result that there was a perceived gap that had to be filled’ (Ibbetson, 2001) The early action on the case was poured into the mould of the ecclesiastical wrong (Milsom). The first cases came in the 1500s (Owughan v Baker and Sparowe v Heygrene (1508)) and the first successful recorded judgment in 1517 (Lyncolne v Hendy). By the 1530s, there was a ‘marked acceptance of the new action’ (Helmholz, 1985) because reporters noted the development, litigants happily entered pleas in the royal courts just for defamation (without trying to link their plea to one of the previously accepted royal court exceptions) and there was an increase in defamation litigation (grew from 4-5 per annum in the KB to 15-20 in the 1530s (Baker). Bar the focus on financial remedies being different from the ecclesiastical wrong, the great similarities of the early action on the case for defamation to the ecclesiastical wrong show that Baker is correct: the ecclesiastical monopoly prior to 1500 was not because of spiritual necessity but just was the situation at hand. For example, there was direct quotation from the Auctoritate Dei Patris in speaking of the plaintiff’s reputation ‘among good and grave men’ and reference to malicious motive (‘scheming wrongly to harm and take away his name and estate’) in a case from 1511 when the plaintiff was called a “bondman” (Milsom, 1981)

The earliest cases like Owughan v Baker (1507) and Lyncolne v Hendy (1517-KB) particularly closely mirrored the ecclesiastical wrong (imputation of crime with an elaborate description of harm to reputation and business).

In conclusion, Baker is very convincing in asserting that the lack of common law remedy for defamation prior to 1500 was not a product of “reason” (spiritual necessity) but because of the “situation” as it unfolded (local court narrowing of trespass and the common law courts being more focused on deeds than words with a focus on physical proof) The easy way in which action on the case for words filled the mould of the ecclesiastical wrong (Milsom) really emphasises that the remedy for defamation did not need to be ‘spiritual’ by nature. Baker could have been more precise in noting the limited but noticeable alternative remedies (local pre 1350 and some common law remedies) prior to 1500.

Page 47

Civil Law in Context

Archie Bentham | Mark: 72

Drusus and Ennius are friends. Drusus, who belongs to a very rich family (the Drusians) who made their money in the silver mines in Hispania, lends Ennius his silver ring, which bears his family insignia, so that Ennius can ‘look rich’ when he goes to ask for a loan from Fufius. Fufius duly lends Ennius 1000 denarii.

On his way to return the ring to Drusus, Ennius passes Galba, a silver merchant, while crossing a bridge over the River Tiber. Galba asks Ennius if he can inspect the ring, pretends to admire it, and then turns and throws the ring into the river, sneering, ‘Drusian silver belongs with all the other rubbish in there’. Ennius, who is very upset, rushes to Drusus’s house and tells him what has happened.

Horatia, who lives nearby, sees the ring being thrown from the bridge. She picks it up out of the mud at the edge of the river, takes it home, and welds it on to a gold necklace she already owns.

A year passes. Drusus, seeing Horatia wearing the necklace one day in the forum, discovers what became of the ring after Galba threw it into the river.

Advise the parties as to the remedies available to them.

D gives the ring to E –commodatum

The agreement of D giving the ring to E to wear is a loan for use, which gives E detention of the ring. This means that E is liable as the custodia

of the ring and is liable for all forms of loss apart from those caused by vis maior Here, even though the ring has been taken maliciously, E is still liable and therefore D would have a right to an actio commodati directa nd claim back the value of the ring from E Further, E may be liable for theft of the ring, if it can be determined that he was using the ring beyond the purpose It was agreed upon. In this case, the ring was granted for the purpose of wearing it during a business deal, but potentially not to wear it while walking back from the deal Some jurists may find that this is furtum usus, however this is unlikely as Pomponius held that this would still require dishonest intent, which is unlikely to be the case where E is wearing it while walking back from the business deal and may have forgotten to remove it.

F lends E money thinking he’s rich – theft? Fraud?

In this case, F has lent money to E under the impression that he is wealthier than he is, since he is wearing a ring bearing the family crest of a rich family If this influenced F to offer the loan, then he may have an action in theft D4725221 states that presenting a poor man as rich and then sharing the money with him could give rise to an action in theft. In this case, by bearing the crest of another family, E has very specifically lied with respect to his identity, meaning that the action available will be theft and not fraud. In this case, a fundamental error to the identity of the borrower

Page 49

prevents the ownership from passing when F loans the money. This means that when E receives the money, he contrects it for the purpose of theft and does not acquire it through a valid traditio Therefore, F would have an actio furti against E and would be able to claim twofold damages for the value of the money loaned. Further, G.3.202 holds that someone who helped with the theft is also liable for it, and in this case as D has provided the ring which E used to lie about his identity, he is likely to be found liable for theft as well and therefore would also have to pay twofold damages

Accomplices were also fully liable even in the case of the principal paying back the sum, so he would still be liable even if E paid back the 2000 denarii

G takes the ring and throws it into the river – furtum? Damnum iniuria? Iniuria?

First, as E had the custodia, he would have to claim against G for the theft of the ring. The first element required was contrectatio which is obviously found in the case of G taking the ring and throwing it in the river. While he may have been granted consent to hold the ring, he did not have consent to throw it away, which is the point at which he causes the valid interference required for theft. While there is not theftuous intent here, the ring has still been thrown away maliciously, and D. 472 37 provides the example that chasing away someone’s tame peacock so it disappears can be considered theft if someone else takes it. Here, the ring has been thrown away so it

disappeared and H has taken it, which is enough for G to be liable for theft. Further, as E has watched this happen, it is likely to be manifest theft, with an actio furti providing fourfold damages in this case There may be an action here under damnum iniuria, however chapter 3 of the lex acquilia is specifically about property damage, not the loss of property Here, the ring is not broken or smashed, but merely thrown away, and therefore it is unlikely that a claim would be valid through this delict. As G has thrown away the ring, while stating that Drusian silver is rubbish, he may have also committed iniuria Iniuria referred to any kind of defamation (D.47.10.15.25), and required contumelia, which was disrespectful behaviour against good morals. Here, there is no justification, and the defamation is obvious, however it is less certain as to whether the element of hurt feelings had been proved or would need to be proved. As D was not there, it cannot be said that his feelings were hurt by the insult, however in exceptional cases it could occur even with the plaintiff absent. In this case, D would have to prove that he was upset when he was informed by E of what happened and could bring an actio iniruiarum The iniuria may even be atrox (severe) due to the higher standing of D, as part of a wealthy family, compared to G who was a silver merchant, alongside the public nature of where the disrespect took place. In this case, damages were fixed by the praetor although the judge could award a lesser sum according to G.3.224.

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H takes the ring and turns it into a necklace – who owns it?

Once the ring has been thrown off the bridge, it is then taken by H For H to validly take ownership of the ring through occupatio, it would have to be abandoned In this case, the ring was not abandoned as G did not have the right to dispose of it, and D had no intention of relinquishing ownership. However, she may acquire ownership through the incorporation into her necklace. In this case, it can be argued that using the test around the relative size and value, a silver ring is likely to accede to a gold necklace, and therefore assuming the two cannot be separated, H would gain ownership of it, meaning that D loses the title. Assuming that the ring is inseparable through the process of welding, the question is then around what action D may have in this case. If H observed the ring being thrown away, and assumed that it had been abandoned, then she would have attached it in good faith, and therefore D would not have any claim to the ring. If she heard the interaction and was aware that G had no right to dispose of the ring, then she may have acquired it in bad faith, and therefore D may have an actio furti against her for the theft of the ring

ADMINISTRATIVE LAW

‘Since administrative law is concerned with public wrongs and not private rights, the requirement of standing makes no sense.’ Discuss.

This essay will argue that even though administrative law is concerned with public wrongs, and not private rights, there is a strong case to be made for the requirement of standing This is because such a requirement upholds both values of the separation of powers, in the form of efficiency and prevention of tyranny, and further ensures that the courtroom is not co-opted for political purposes.

The Case Against Standing

Although Wade famously suggested that 'the primary purpose of administrative law is to keep the powers of government within their

legal bounds, so as to protect the citizen against their abuse', it is more appropriate to see administrative law, as Sedley J in Dixon suggested, as not concerning ‘base rights,’ but rather wrongs and the ‘misuse of public power.’ Indeed, the validity of such an approach is reflected in cases in which no individual person has been wronged, per se, but there has been a clear misuse of governmental power warranting judicial review. This is most aptly reflected where the power in question involves a right to the public at large, rather than any discernible individual, with one such example being s6 of the NHS Act This was further reflected in Walton v Scottish Ministers in

Shivraj Das | Mark: 74

which it was suggested that there may be instances in which every citizen has a claim, supporting the notion of a public interest claim. In this regard, a rights based model, as Wade suggests, would be impotent to review whether the statutory duty was complied with, as no one individual could show that they had been particularly harmed. In this regard, as Elliott and Varuhas note, a wrong-based approach is better suited to ensure that abuses of governmental power do not occur.

Approaching administrative law through a wrong-based approach, therefore, ostensibly indicates that there should be no standing requirement. If administrative law, as I have argued, is concerned with the misuse of public power, it would be paradoxical to say one must find an individual with ‘sufficient interest’ (Senior Courts Act 1981, s31(3)), as by the nature of society at large, everyone has a ‘sufficient interest’ in seeing public bodies act within the scope of their powers.

On a more pragmatic level, however, there is a further case for removing the requirement of standing In many instances, there are situations in which, under the current law, those with a ‘sufficient interest’ are either unwilling or unable to pursue a judicial review claim, either due to a lack of finances, expertise, or general willingness This is perhaps best reflected in cases such as Child Poverty Action Group, where the individuals in question, who had a sufficient interest, did not have the effective capacity to bring a judicial

review claim The broader approach of standing in allowing the claim to be brought by NGOs is to be welcomed, but there is no reason why this should not be broadened further, some would suggest Indeed, as Greenpeace further shows, often potential claimants lack the required expertise to bring an effective claim, and therefore requiring a body to show that they have standing undermines the fundamental purpose of administrative law in holding public authorities to account.

Fundamentally, some would argue that having a standing requirement undermines the very purpose of judicial review. Allowing abuses of governmental power to remain unchecked, simply because no one is directly harmed by it, opens the door widely for the misuse of power by public authorities.

The Separation of Powers

I would suggest, however, that the requirement of standing, even in a wrongs-based approach, is necessary and does indeed make sense This is fundamentally, the court is also concerned with broader constitutional principles, such as the separation of powers and the rule of law. In this regard, removing the standing requirement would offend both conceptions of the separation of powers in that it would reduce the overall efficiency of the government and the judiciary, as well as opening the door to the improper exercise of judicial authority.

Efficiency

John Locke famously argued that the purpose of a separation of powers doctrine was to promote efficiency in the running of society Having specialised bodies perform their tasks and their tasks alone served to ensure that the functions of government ran smoothly. This value, I would suggest, would be undermined by removing the requirement of standing

There should indeed be a broad standing requirement, allowing representational claim, but the requirement should not be removed altogether The broader approach allowing representational claims in Child Poverty Action Group, for example, promoted the value of efficiency as, not only did it facilitate the bringing of claims where the victims were poorly placed to do so themselves, but also fundamentally made the claim more efficient – by bringing one single action claiming the illegality of government action, the court was better placed to address the issue, rather than tackling a multitude of highly similar claims In this regard, a broad version of standing allows for the efficient use of court time.

This is not to say, however, that standing should be removed entirely. As was warned against in Fleet Street Casuals, removing the standing requirement invites the notion of ‘busybodies’ which ultimately raise litigation costs and clog the courts. Although one may suggest that the term ‘busybodies’ .

is question begging, in that it assumes that there is no valid claim to being with, this can be rebutted This is because the nature of the standing requirement operates at both the preliminary and merits stage of a hearing, ensuring that where there is no possibility of a valid claim, it will never be brought. Moreover, it still takes court time in showing that such claims are empty More fundamentally, however, removing the standing requirement also, as Schieman argues, would ‘freeze’ administrative action. Were everyone allowed to bring claims, no matter how bogus, administrative bodies would be entirely unable to act, instead having to wait for each court hearing to determine whether their acts are unlawful or not

Furthermore, the argument that standing should be removed on the basis that it allows bodies with specialist expertise to bring a claim, and therefore more effectively challenge misuses of government power, is also flawed. This is because, as Harlow argues, drawing on Lon Fuller’s idea of polycentricity, such polycentric disputes where such expertise is needed are unsuited to legal adjudication. They often cause repercussions in other policy areas and often other affected persons are not present. The impossibility of including all affected persons undermines the very nature of bringing a claim on the basis that the body in question has particular expertise. Indeed, Harlow references the case of Heil v Rankin in which there were eight cases, sixteen parties and twenty-eight counsel

Clearly, removing the standing requirement on the basis that certain bodies have the expertise to challenge government decisions greatly undermines the efficiency of both public bodies and the courts

For these reasons, therefore the removal of the standing requirement should be rejected as it greatly increases inefficiency in all areas of government and the courts.

Prevention of Tyranny

The alternative conception, as advanced by Montesquieu, of the separation of powers, that it prevents tyranny, is also undermined by removing the standing requirement Fundamentally, this addresses the concern that removing standing circumvents the established political processes, allowing an individual to essentially lobby their political views in a courtroom. As Harlow suggests, such an approach, as seen in Pergau Dam, legitimates this form of political lobbying, further discrediting the judiciary as it appears as though they make decisions based on politics, rather than law.

Indeed, removing standing on the basis that individuals cannot bring claims themselves also has the potential to undermine the separation of powers. In cases of NGOs, for example, they often define themselves in terms of political ideologies and views Allowing such claims serves to move the nature of administrative law

away from preventing misuses of power towards a situation in which policy claims are brought under the guise of law Indeed, this was the very reason as to why in The Good Law Project, the Good Law Project’s standing was rejected, whilst the Runymede Trust’s standing was not. Indeed, this issue is exacerbated by the fact that it disproportionately favours the wealthy, who can afford a multitude of lawyers and take on extensive claims, giving them a disproportionate weight in political affairs, were standing to be removed Furthermore, as Trevor Allan argues, the claims of ‘representation’ which NGOs often make is elusive They are controlled by a small elite in which individual members cannot be consulted and therefore treating them as a monolith corrupts both the legal and political process

As an addition to all of this, there exists the problem that often individuals may not wish to bring a claim at all. For direct victims who have sufficient interest, going through the entire court process may be detrimental to their wellbeing and it would therefore be unjust to allow others to bring a claim when those most affected

do not wish to themselves Julian Ghosh describes this as the ‘displacement principle’ in which those with a better claim displace the standing of others. An effective example of this is in DSD in which the mayor of London was rejected standing because the victims themselves did not want to bring a claim Allowing third parties to sue in such cases is problematic as it undermines the choices of those most affected

Conclusion

Thus, it is clear that the standing requirement does make sense. Although one can see the justification for removing standing on a theoretical level, the law is tempered by other constitutional concerns which mean that, both as a matter of theory and practice, the law is better served by having a standing requirement

Contract Law

Cormac Hoare | Mark: 76

(a)

Camville District Council (CDC) decided to contract out the gardening services for its various municipal parks. It posted a notice on its website inviting tenders for a three-year gardening contract, including details of the work required. The notice specified that anyone wishing to apply must send their application and proposed price to a dedicated CDC email address, and that the emailed application must be logged as received by 9.00am on 7 February 2025.

Hedgerow Ltd sent an application to CDC’s dedicated email address, proposing a price of £30,000 per annum for the work, which arrived at CDC’s email inbox at 8.45am on 7 February. Unfortunately, CDC’s IT system had suffered a hacking attack the previous night.

As a result, Hedgerow’s application could not be read or logged as received until CDC’s computer systems were repaired on 10 February. CDC did not make public any details of the hacking attack. Grassroots Ltd posted its application (with a proposed price of £35,000 per annum) to CDC’s postal address by first class post on 1 February. It was delivered on 6 February. Hedgerow has now discovered that CDC is about to place the gardening services contract with Grassroots.

Advise Hedgerow Ltd.

(b)

At 8.30am Bushra posted on her village ‘Facebook for Sale’ group ‘Antique desk for sale (see photo). Will sell to anyone who pays £100 or above, cash only’. Caius messaged Bushra at 9.00am saying, ‘I’ll give you £90 for the desk’. Bushra did not notice this message. At midday Caius sent her a further message, ‘OK, it’s a deal at £100’. Caius went immediately to his bank to withdraw £100 in cash and went to Bushra’s house at 2.00pm. Bushra then drew his attention to the fact that at 12.30pm she had posted on the Facebook for Sale group that she had decided not to sell the desk after all.

Advise Caius.

(a)

Hedgerow limited will want to establish that they are either entitled to the contract with CDC or have some other action against CDC for the failure to consider them.

Nature of a tender

A tender is generally an invitation to treat [Spencer v Harding 1870] Therefore, any responses to the tender will be an offer, which must comply with the terms set out by CDC, that is, offers must be submitted by a certain time, with certain information and to a certain email address

Unilateral offer to consider conforming tenders

Hedgerow LTD [H] sent an application to CDC’s email address as per the instructions, which constitutes an offer The general rule is that offers do not need to be accepted, however, there may be an obligation on CDC to consider conforming bids [Blackpool and Fylde Aero Club v Blackpool BC [1990]]

This would take the form of a procedural contract in addition to the main contract, which constituted a unilateral contract to consider H’s bid. Like in Blackpool, such a contract can be implied here as the tender process included comprehensive and familiar instructions, only a small number of offerors would likely respond and the duty to consider was likely consistent with the intention of the parties. Therefore, even though there is no obligation to accept H’s bid, there may be a collateral contract to consider H’s bid if the bid conformed.

Communication of the bid

Therefore, the question is whether H’s bid conformed with the instructions The general rules as to communication of acceptance will apply, as technically H’s bid, while being an offer, was also an acceptance of the implied unilateral offer to consider H’s bid. The general rule is that instantaneous communications are treated as effective when they arrive, during business hours [Mondial], at the place of business [Entores].

In this case, the relevant destination Is CDC’s dedicated email address. Here, the email from H did not arrive on time as per the instructions However, this was not due to the fault of H. In this case, there was a hacking which prevented the arrival of the email. It can be deduced from Entores that if CDC is at fault for the failure of the communication, the CDC is bound. In this case, it is unlikely a hacking attack can be attributed to CDC However, in an objective sense, the hacking is an internal IT issue, evidenced by the fact that the hacking what not made public. Indeed, H’s email arrived at the inbox of CDC in a timely manner; which conforms with the terms of the tender. The specific failure of communication here was the failure of the email to be ‘logged as received’. The prerogative to log the email is squarely within the control of CDC. In accordance with the unilateral contract to consider the tender, it is possible there could be an obligation to log received emails. Therefore, the failure of communication is squarely with CDC, as H’s tender was as in conformity as far as they could reasonably make it, since the logging was outside their control.

Remedy

Therefore, since the failure of communication was due to CDC, H’s acceptance of a unilateral offer for the collateral contract to consider the offer stands While there is no obligation to accept the bilateral contract, nor the highest bid [which means there was no strict wrongfulness in awarding the contract to G], the unilateral contract to consider the bid was breached

The remedy in this case will likely be on a reliance measure, as it is not certain that H would have got the contract nor how much money the contract would ultimately make them once they had conducted the work [Anglia TV] Therefore, they will likely get a reliance measure for the preparation of the offer. There can be no loss of chance as the chance is not to be determined by a third party, and indeed, the chance was likely low as H offered less [Chaplin]. The court will not compel CDC to award the contract to H through an injunction, as there was no reasonable expectation of that and it would compel constant supervision [Argyll].

Therefore, CDC can expect a small award of damages for the breach of their unilateral collateral contract to consider their tender.

(b)

Nature of B’s Post

Bushra’s [B] post on facebook may be an offer or an invitation to treat. Ordinarily, advertisements are invitations to treat [Partridge], which means that any response is an offer. However, on an objective constriction [Storer], it is likely that this constitutes a unilateral offer. Unilateral offers may arise where the language is clear and definite, and there is a clear promise to sell to the first person who performs [Carlill] This offer seems to have that intention, by clearly stating [Will sell], and the statement of cash only and the photo confirms intention Further, the offer is open to the whole world, and the acceptance is likely performance, that is, the payment. Thus, this post is likely a unilateral offer.

This offer is likely subject to the implied term of ‘while stocks last’ [Marks and Spencer]. The business efficacy test in the Moorcock demands that an implied term can arise where it is necessary to make the contract effective, and in this case, the unilateral offer is likely subject to such an implied term

Cauis response at 9am

C responds with an offer of 90 pounds. This is not acceptance of the unilateral offer, as it constitutes a counteroffer [Hyde v Wrench] While ordinarily, an acceptance by instant message is effective when it arrives [Entores], here, there is no acceptance, merely an offer Thus, there is no binding contract arising from the 9am message

Cauis response at midday

The second message at midday may constitute acceptance of the offer This unilateral offer may have a prescribed method of acceptance, in saying that the money must be paid This may mean acceptance is only operative when C arrives at B’s house to pay the money. On an objective construction of the offer [Storer], final performance is likely only completed when the money reaches the hand of B. This would suggest that, despite C’s message willing to pay 100 pounds, B’s revocation of the offer was effective as it came before the acceptance of handing the money to B [Henthorne].

However, in this case, while final acceptance likely occurred when the money was handed to B, performance was a process, evidenced by C going to the bank to collect money. This process started at 12 when C sent the message. Therefore, while this message might not be acceptance of the unilateral contract [Although Errington v Errington would suggest otherwise], an obligation not to frustrate the continuing performance of C likely arose when the message was sent [Daulia], as performance was a process. C’s message was an expression of willingness to perform, at which point this obligation not to frustrate arose, then final acceptance occurs when the money is handed over.

This obligation is a separate unilateral contract. Therefore, while the final sale contract was never completed by handing over the money, the unilateral contract between C and B not to frustrate performance was breached by B’s 12:30pm message

Remedy

If C wants the desk, he can likely sue on this contract for specific performance, to compel B to enter the main contract with him, as the ultimate sale contract was what the unilateral contract was worth, the desk is a unique chattel and damages would be inadequate [Falke and Grey] Further, the desk has not been sold.

Mark: 77.5 Muna Panyasong Mark: 74

Since they cannot be the source of rights and duties in English law, neither treaties to which the UK is a party nor customary international law are useful in English Courts.’ Discuss.

Introduction

The quote claims that (i) treaties and CIL can never be a source of English law, and (ii) this makes neither of them useful in English Courts. In Part (I), I argue that while treaties cannot be a source of rights and duties in English law, CIL is capable of being a source In Part (II), I assess the utility treaties and CIL to English Courts for both their functions as regards the individual citizen and the UK constitution Ultimately, I shall conclude that regardless of being a ‘source of rights and duties’ or not, treaties and CIL are useful to English courts in satisfying and clarifying the rights and duties of individual citizens and in promoting compliance with the UK’s international obligations.

Ffion Griffith

Alexander Zlatev | Mark: 72

(a) Treaties

With respect to treaties to which the UK is a party to, whether incorporated or not, the starting point is that they are not a source of rights and duties in English law (ex parte Freedom and Justice Party (FJP)) This has been justified on the basis that the Crown, by unilateral exercise of its prerogative, cannot alter the law; and treaties are entered into by exercise of the prerogative (Tin Council Case). To this end, domestic courts claim that they cannot ‘adjudicate on’ or ‘enforce’ the rights arising from treaties, ‘unless and until’ they have been ‘incorporated into [English] law by legislation’ (Tin Council Case) Yet, this is a false ‘axiom’ since, in practice, what the court adjudicates on and enforces upon incorporation, and what is consequently the source of rights and duties is not the treaty itself, but the Act of Parliament However, English law’s approach to treaties is more nuanced. English courts may have regard to a legislatively unincorporated treaty where necessary to determine rights and obligations under English law (Campaign for Nuclear Disarmament). In this context, the necessary ‘foothold’ is usually observed where a legal right or obligation of the citizen is engaged, whether in public or private law (Shergill v Khaira) For instance, in Occidental Exploration & Production v Ecuador, the parties’ agreement to arbitrate, itself recognised in English private law, was relied upon by the CA to consider the bilateral investment treaty in interpreting the scope of the contract.

Similarly, in ex parte Al-Jedda, the HL considered whether the UNSC Resolution 1546 qualified Art5(1) of the ECHR through the operation of Art103 of the UN Charter. This was possible because under the HRA 1998, the ECHR rights contained in Schedule 1 of the HRA apply only to the extent that they are recognised as having effect in relation to the UK, which provided the necessary ‘foothold’ (Sales & Clement) It is then evident that even if treaties may influence the rights and duties in English law, they cannot by themselves be a source thereof without a domestic ‘foothold’ It is only when a provision of a statute (or the common law (ex parte SG), so far as it’s consistent with Parliamentary Sovereignty (Al-Saadoon) is subject to ambiguity that ‘the treaty becomes relevant’ (Salomon v CCE) As such treaty obligations are only one of a number of ‘relevant’ considerations that English courts may consider when interpreting the scope of rights and duties. Thus, treaties are not a standalone source of rights and duties in English law, however they may be a useful guideline for the development of the common law, as long as their influence is in harmony with Parliamentary sovereignty and the legitimate exercise of judicial powers.

(b) Customary International Law (CIL)

By contrast, the starting point regarding CIL is that it will be taken to shape the common law, absent any positive constitutional or policy reason to the contrary (ex parte Freedom and Justice Party) CIL would only be allowed to shape domestic law where (i) it does not call for any legislative choice to be made;

(ii) it is consistent with domestic constitutional principles (namely Parliamentary sovereignty and the separation of powers); and (iii) the rule does not conflict with other rules of international (Ibid) To this end, once established, CIL can be a ‘source’ of rights and duties in English law, although it will not automatically be so (ex parte Keyu, Lord Mance, obiter). Although, I argue that CIL blurs the line between a source and a guideline. Two preliminary points must be made, firstly that CIL is less amendable to being influenced by the domestic political process (Sales & Clement), and secondly that CIL rules, which arise in the horizontal plane of international law, need to be fashioned to fit the vertical municipal framework. Hence, in R v Jones (Margaret), Lord Bingham denied accepting the international crime of aggression as a crime under English law despite its existence in international. Considering this, CIL may be equally conceptualised as guideline, rather than a ‘direct source’, as it must first bypass the domestic constitutional filter and be adapted to the needs and policies of domestic law. Yet, the better view is that they are a source, in that there is no need for any kind of domestic ‘foothold’ to exist for the courts to draw from CIL in developing rights and duties.

Thus, while treaties can never be a ‘direct’ source of rights and duties in English law. CIL on the other hand could be a source

(II) Assessment of utility

In light of the above analysis, I argue, that albeit treaties cannot be a source of right and duties in English law and CIL must be consistent with English law to be a source there, they both a useful function. With respect to treaties, they are useful to English courts in satisfying and clarifying the legal rights and obligations of citizens, as shown in the cases where a ‘domestic foothold’ was found. To this extent, it allows English courts to capture the notion of the individual as the primary subject of the law in that – so long as the subject matter directly concerns the individual – English law and international law operate on the same plane. The second utility, common to both treaty and custom, is aiding the English courts in promoting compliance with the UK’s international obligation. This is done through the presumption of statutory construction that Parliament does not intend to legislate contrary to the UK’s international obligations In practice the presumption operates as to confer municipal courts the constitutional authority to consider relevant international law on the basis of the rule of law and on the CIL rule that provisions or insufficiencies of domestic law do not justify a breach of international law (Art.27 VCLT, Art.32 ARS as interpreted in Obligation to Prosecute or Extradite) This allows English courts to interpret legislative provisions capable of bearing more than one meaning, by reference to the CIL and the UK’s treaty obligations. To this extent, both treaty and custom are useful as to provide the benchmark for providing compliance with international obligations

However, this is necessary limited by the fact that where ambiguity is not present, Parliamentary sovereignty requires that the court gives effect to legislative provisions, even if they contravene international law (Salomon v CCE) The consequence of this pre-requisite is that where Parliament has conferred on the executive an administrative discretion, said discretion is not ‘read down’ to an interpretation that it must be exercised in compliance with the UK’s international obligations (ex parte Brind). Thus, while both treaties and CIL do serve the useful purpose of resolving legislative and common law ambiguities in a manner consistent with international law, this utility is necessarily limited by English courts’ constitutional authority in utilising the interpretative canon

Conclusion

To conclude, I have argued that while treaties cannot be a source of English law, CIL is capable of being one. Further, I have established that both treaty and CIL serve useful functions to the English courts in clarifying the rights and duties of individual citizens and in promoting the UK’s compliance with international law, regardless of being a ‘source of rights and duties’ or not.

Equity

Muna Panyasong | Mark: 74

Claudia decided that she wished to make provision for her two grandchildren, Armani and Dan, but wanted them to benefit now rather than wait until she had died. Claudia owned shares in Lambert Ltd and wanted her shareholding to be held on trust by Ellen for Armani. Claudia asked Ellen whether she would hold the shares on trust for Armani and Ellen agreed. Claudia signed a document stating that she had transferred her shares to Ellen. She sent that document to Ellen, along with a share transfer form, telling Ellen that she wanted her to hold the shares for Armani and to send the share transfer form to Lambert Ltd. Ellen failed to do so. In any case, Claudia had forgotten to sign the share transfer form. Claudia owned Traitors Cottage and wanted the Cottage to be held on trust by Freddie for Dan. She met with Freddie and asked whether he would be willing to become trustee and he agreed. Claudia completed the necessary paperwork to transfer her freehold title to the Cottage to Freddie and it was registered in his name. However, no paperwork was completed confirming the creation of the trust.

Claudia told Armani that the shares were held on trust by Ellen for Armani. Claudia also told Dan that the Cottage was held on trust by Freddie for Dan. Armani was renting a flat and preferred to live in the Cottage and Dan was keen to benefit from the shares, so Armani and Dan agreed by text message that they would ‘swap their interests under the trusts’. Armani phoned Ellen telling Ellen that she now held the shares on trust for Dan. Dan phoned Freddie telling Freddie that he now held the Cottage on trust for Armani.

Claudia discovered what her grandchildren had done and was furious. She obtained legal advice suggesting that the creation of both trusts might be invalid. She called a meeting with Ellen and Freddie and told them that she wanted the shares and the Cottage to be transferred to her friend, Kasim, absolutely. Ellen told Claudia that Ellen had recently sent the share transfer form to Lambert Ltd, which had confirmed that the shares are now registered in Ellen’s name despite the absence of Claudia’s signature on the share transfer form. Freddie told Claudia that Traitors Cottage belonged to him now and he would prevent anyone else from taking the benefit of the Cottage.

Advise the parties.

(i) Shares in Lambert Ltd

Formalities

C wanted to create an express trust over her shareholding in L Ltd held by E as a trustee and for A as the beneficiary. As shares are personalty and C as the settlor is still alive, she would not need to put her declaration of the trust in writing or follow any other formalities An oral declaration of the trust is sufficient (Paul v Constance) so when C asked E to hold the shares on trust for A, the declaration of trust was valid.

Constitution

For a trust to be valid, it is not enough simply to declare the trust, it is also necessary that the legal title to the asset has been vested in the trustee Therefore, what C needs to do is to vest the legal title of the shares in E For company shares, C needs to execute the share transfer form (Stock Transfer Act 1963 s1) It seems that she has signed a document saying that she had transferred her shares to E but did not sign the share transfer forms.

n Milroy v Lord, the settlor did not use the share transfer form but executed a voluntary deed instead and the trust was held not to be validly constituted as the settlor had not done everything necessary

This could be similar to the current situation because C had signed the document but not the share transfer forms so she had not done everything that was necessary to validly constitute the trust. Therefore, the legal title in the shares should remain with C.

However, E had sent the share transfer form to L Ltd recently and the shares were registered in E’s name despite the absence of C’s signature It is unclear why this is the case Taking this fact together with the fact that the declaration was valid, it could be concluded that there was a valid trust of the shares held by E for A It is noted that the transfer of the shares was only effective when E’s name was registered with the company (Rose v IRC), which was the point at which the trust was valid

(ii) Traitors Cottage

Formalities

C wanted to create an express trust over the cottage held by F for D

According to s53(1)(b) LPA 1925, C’s declaration of trust over land must be manifested and proved by some writing and signed by some person who is able to declare such trust. There is a debate as to whether the function of s 53(1)(b) is merely evidential or to make the trust valid. According to Virgo, with reference to Rochefoucauld v Boustead, the function of the writing is to evidence the settlor’s intention to declare the trust

So, the declaration of trust itself need not be in writing and the written evidence need not be contemporaneous with the declaration of trust This is supported by majority of academics such as Douglas and Swadling. Nonetheless, it seems that no paperwork was completed to confirm C’s creation of the trust at all.

Constitution

C appeared to have validly constituted the trust because she completed the paper to transfer the freehold title to F and the cottage was registered in F’s name.

Failure to comply with the writing requirement

C has transferred the cottage to F to hold on trust for D but C failed to evidence the declaration of trust in writing According to Virgo, there are four potential solutions:

(1) F should hold the cottage on resulting trust for C This is based on the view that the original express trust had failed and an automatic resulting trust has arisen to revert the beneficial interest in the cottage back to the settlor, C S53(2) applies so no writing is required for resulting trust. The advantage of this solution is that since C is still alive, C can terminate the trust, recover the property and declare another trust for D and follow the correct formality.

(2) F should hold the land on constructive trust for D. The constructive trust is imposed by law to prevent unconscionability on the part of F. So, F’s conduct must be unconscionable

Since C had explicitly told F that he would be a trustee of the cottage and not to have it absolutely, by insisting that the cottage belonged to him, F was acting unconscionably. So, it was likely that a constructive trust would be imposed over the cottage for D. This was the case in Staden v Jones in which Arden LJ argued that Bannister aimed to give effect to informal agreement like this one between the settlor and the trustee so the beneficiary of the constructive trust has to be the initially intended beneficiary. However, Eldridge argued that the point of Bannister is not to give effect to informal arrangement but to prevent unconscionability. The unconscionability would be for the trustee to take absolutely with no trust at all It does not tell us where the beneficial interest of the constructive trust should go. In any case, if it is concluded that there is a constructive over the cottage, s53(2) would apply and no writing is required for a constructive trust The advantage of this approach is that it respects C’s initial intention

3) F should hold the cottage on constructive trust for C Following on from Eldridge’s argument, this is an alternative solution to the constructive trust approach This depends on F being an agent for C and having a fiduciary duty. F’s denial of the trust would be a breach of the fiduciary duty and he would hold the cottage on constructive trust for C.

4) F should hold the cottage on express trust for D. This follows the same reasoning as Rochefoucauld v Boustead. There is a valid trust but it is not enforceable But equity will not permit F to use the statute as an instrument of fraud so the trust will be held to be enforceable

(Although this solution was rejected in Solomon v McCarthy, Virgo argues that this is the preferable analysis This is because equity will not allow F to act fraudulently even though it means bypassing the statute

(iii) A and D swapping their interests under the trusts

Only if it was concluded that there was a valid trust of the shares in favour of A and of the cottage in favour of D, A and D would have beneficial interests under the trusts. Since they wanted to assign their equitable interests to the other, this would be a disposition of an equitable interest and they would need writing under s53(1)(C) LPA 1925 The text message would be sufficient as writing in this instance so their swapping of the interests under the trusts would be effective

(iv) C wanted the shares and Cottage to be transferred to K absolutely

If both of the trusts were valid in favour of A and D, C would not be able to direct E and F as trustees to transfer the shares and the Cottage absolutely to K.

If we followed approach (1) or (3) in (ii), the trust over the Cottage would be in favour of C. In that case, C would be able to direct F to transfer the Cottage absolutely to K C’s equitable interest would be extinguished by the transaction and writing would not be required under s53(1)(c) LPA 1925 (Vandervell v IRC).

Per Incuriam Michaelmas Edition 2025

ARTICLES FROM CAMBRIDGE STUDENTS

President’s

F

oreword

editor’s welcome

Table of Contents

Introduction

Comparing Constitutional Resilience

Conclusion

Bibliography

F

The Prohibition Against the Threat or Use of Force

The Principle of Non-Intervention

Bibliography

Legal Guardianship of a Child Monarch

– a Critical Assessment

Introduction

The

Regency Act: an evaluation

Provision for Fathers

Conclusion

Bibliography

TRIPOS ESSAY SELECTION GUIDLINES

CrimiNAL LAW

CoMPANY law

Payment of shares

Maintenance of capital

No payments out of share capital:

Reduction of capital methods

The modern context

Reform

Conclusion

LEGAL HISTORY

Causes of ecclesiastical monopoly

Civil Law in Context

ADMINISTRATIVE LAW

The Case Against Standing

The Separation of Powers

Efficiency

Prevention of Tyranny

Conclusion

Contract Law

Nature of a tender

Communication of the bid

Remedy

(b)

Nature of B’s Post

Remedy

(a) Treaties

(b) Customary International Law (CIL)

(II) Assessment of utility

Conclusion

Equity

(i) Shares in Lambert Ltd

Formalities

Constitution