Per Incuriam Michaelmas Edition 2025 by Cambridge University Law Society

ARTICLES FROM CAMBRIDGE STUDENTS

FIRST CLASS TRIPOS ESSAYS

President’s

Foreword

DearReaders,

I am pleased to introduce the Michaelmas2025editionofPerIncuriam!

Per Incuriam continues to be a key feature of CULS’ offering, providing our memberswithanunequalledselectionof high-quality academic essays and student articles on pivotal legal topics. Ouraimistosupportourmemberswith the unique student-driven inspiration andengagement,academicandbeyond, whichhasalwaysdefinedPerIncuriam.

First, I would like to highlight the hard work of our Per Incuriam Editorial team leading to the successful publication of thiswinter’sedition.ThankyoutoEditorin-Chief Chloe Levieux, and Deputy EditorsKaiZhenTekandDawnChowfor 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 perennialquestionofwhatmakesagood 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.

Michaelmashasbeenanotherincredible year for CULS, from partnering with almost30sponsorsoverabusy8weeks to a spectacular ending with our 124th annualLawBall.

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 legalsector.Wearealsorecalibratingour offeringtoaspiringbarristers,includinga new collaboration by our Per Incuriam teamwithJulianGhoshKCofOneEssex Chambers to host a Winter Essay Competition.

Weareexcitedtopresentwhatwehave planned in Lent term in January. In the meantime, we hope that this Per IncuriamMichaelmaseditionprovidesan illuminating winter read, and leaves you lookingforwardtoanotherpackedCULS term. Alongside the thought-provoking reading in this Per Incuriam Edition, through our new CULSCAST Podcast Series,“BeyondDoctrine”youmaylisten tofascinatingconversationswithleading Cambridgelawacademics.

WelookforwardtoseeingyouinLent!

editor’s welcome

DearReaders,

Happy New Year, and well done on getting through Michaelmas! Whether you are a fresherbeginningtosettleintotherhythmof 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 inspireyou.

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

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 anddesignexpertise.

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, Kai Zhen Tek, Dawn Chow

Chloe Levieux

PerIncuriamEditor-in-Chief2025-26

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 technologiesemerge.

SincetheRomanRepublic,ithasbeen understood that social exigency may require the suspension or alteration of legal and political norms. This has continued to the present, with the practiceofstatesofemergency(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 Article15oftheECHR.

Although emergency powers may be justifiableundercertaincircumstances, 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.Forthepurposesofthisarticle,the use of SOEs for authoritarian ends (consolidation of powers, restriction of individual freedoms, suppression of opposition) will be described as “emergencyauthoritarianism”.

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 constitutionallawandhumanrightsto 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 Decree

TheSouthKoreanConstitutionprovides thatthePresidentmaydeclaremartial law in an emergency when “military necessity” or “public safety and order” are under serious threat. This enables the restriction or even suspension of ordinarylegalrights,suchasfreedomof 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 liftedwithamajorityvote.

On 3 December 2024, President Yoon SukYeolmadeasurprisedeclarationof martial law in a late-night television broadcast, claiming to be acting against an “anti-state” communist conspiracyorchestratedbya“legislative dictatorship”. Orders for the arrest of Yoon’s opponents, including National Assembly members, judges, and political commentators, were issued. Multiplemilitaryandpoliceunitswere ordered to surround the National Assembly to prevent lawmakers from entering the building and holding a votetoendmartiallaw.

DespitethebesteffortsofYoonanda handfulofcloseallies,hisdeclarationof martial law quickly backfired –protesters surrounded the National Assembly,andlawmakersbreachedthe perimeter set up by police, with some evenclimbingfences.Soldiersfailedto stop the vote, with many reluctant to use force, while staff brandished fire extinguishers and built makeshift barricades.By01:00,lessthan3hours

afterYoon’smartiallawdeclaration,the NationalAssemblyhadvotedtoendit, and by 05:00, Yoon’s cabinet announceditwastobelifted.

ElSalvador:Bukele’sConsolidationof Power

Article 29 of the Salvadoran Constitutionallowsforthesuspension, in part or in whole, of six other constitutional articles. This includes freedom of expression (Article 6) and association(Article7),thepresumption ofinnocence,righttoapublictrial,and righttolegalrepresentation(Article12), and the prohibition of unlawful detention (Article 13). The suspensions maybeenactedbyanexecutivedecree 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 renewedevery30daysindefinitely.

Nayib Bukele assumed the presidency ofElSalvadorinJune2019fora5-year term, in the context of a severe gang crisis.In2020,followingtheAssembly’s refusal to approve a large loan to fund police militarisation, Bukele convened the Legislative Assembly for an extraordinary special session under Article167oftheconstitution,intended for emergencies. He entered the session accompanied by 40 soldiers, stating,“it’sclearwho’sincontrolofthe 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 rulingcontrarytothefirmlyestablished principle that presidents could not be re-elected for consecutive terms, findingthatimmediatepresidentialreelectionwaspermissible.Thisallowed

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 beenextendedforthe44thtime(asof writing). The consequences of the suspensionofconstitutionalrightsinEl Salvador have been vast: almost 2% of the adult population is now incarceratedinharshprisonconditions, individuals are held without trial for years, and mass trials of up to 900 defendants at a time are permitted. Tortureandotherhumanrightsabuses 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 turntowhy.

ComparingConstitutionalResilience

For the purposes of this comparison, three broad components of constitutional resilience can be identified:(1)legal,(2)institutional,and (3)political.Legalresiliencereferstothe substantiveandproceduralsafeguards built into the design of a constitution, combinedwiththejudiciary’sabilityto enforcethem.Institutionalresilienceis definedbythewillingnessandabilityof state institutions and individual state agents to protect the constitutional order. Finally, political resilience depends upon the degree to which oppositionparties,civilsociety,andthe generalpopulacecanmobilisetoresist authoritarianism.

(1) Legal resilience: SouthKoreaandEl Salvador are both unitary presidential republicswithcivillawsystems.Within this common frame of reference, specificdifferencesintheconstruction of their constitutions can be highlighted. Firstly, Article 30 of the SalvadoranConstitutionplacesa30-day time limit on the suspension of constitutionalarticleslaidoutinArticle 29, whereas no such automatic limit exists for martial law in South Korea. Although this provides a valuable safeguardintheory,theabilitytoreset thetimelimitevery30daysindefinitely, asBukelehasdoneforover3years,has rendered it largely. ineffective in

preventing abuse. A more important elementofconstitutionaldesignisthe role of the legislature in accepting or denying the use of SOEs. In South Korea,theNationalAssemblymustbe notifiedoftheimpositionofmartiallaw andcanorderitsliftingwithamajority of its members. As events in 2024 demonstrated,thiscanbeaveryquick 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’slegislature,empoweredbya 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 Article29,onlyitcanorderasuspension ofcertainrightscontainedinArticles12 and13.

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’slaterabuseofSOEs.However, thearbitrarydismissalofallfivejustices in2021andtheirreplacementwith

Bukele loyalists severely undermined the judiciary’s independence and willingness to protect the rule of law. This has been compounded by judicial reformlawsthatmandatethedismissal 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 effortstoholdthoseinvolved,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 unconstitutionalSOEsmaybevaluable as a deterrent against any future would-beauthoritarians.

Overall, the two case studies highlight the importance of legal resilience. Constitutional construction, such as provisionsrequiringlegislativeconsent, 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.Despitethis,eventsin both countries demonstrate that the existenceandefficacyoflegalresilience are highly contingent on other institutionalandpoliticalconditions.

(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 thiscanbecreditedtothetenacityof 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 togivesoldiersliveammunition,while individual soldiers have testified to acting slowly and reluctantly. A CounterintelligenceCommandraidon theElectoralCommission’sofficeswas 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,manyofthearrestorders issued against Yoon’s political opponents, including many National Assemblymembers,wentunexecuted. Thesefactscanbecontrastedtoevents in El Salvador, where security forces have consistently been complicit in Bukele’sauthoritarianism,withsoldiers aidingBukele’sattemptstointimidate LegislativeAssemblymembersandthe policeandmilitarybeingimplicatedin numeroushumanrightsviolations.

(3)Politicalresilience: Enjoyingalarge majority in the Legislative assembly since2021andhighpolling,Bukelehas faced little resistance from the Legislative Assembly, opposition groups,andthepopulacegenerally.In contrast,atthetimeofhismartiallaw 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, particularlythe1980GwangjuUprising, helped mobilise thousands of protesterswithinhours:manyofwhom aidedlawmakersingainingentrytothe National Assembly. Political resistance is also highly dependent on whether the “emergency” which justifies authoritarian measures is viewed as legitimate.In 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 seemtohaveadoptedan“endsjustify the means” mentality: a willingness to sacrificecivillibertiesanddueprocess

inreturnforrelativestabilityandsafety from gangs. This differs from Yoon’s justificationsformartiallaw–analready 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 NorthKoreatohelpjustifymartiallaw; itisworthconsideringwhetherhadthis occurred,Yoon’splansmayhavebeen moresuccessful.Ultimately,thenature and perceived legitimacy of a crisis, alongsidethepopularityofaleaderand 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 thestrongestconstitutionalsystemsto beundermined.

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.Emergencyauthoritarianism 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 andinterdisciplinaryapproachthrough comparative law can legal scholarship seek to understand how to safeguard againstit.

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Reassessing Crawford’s Principle in the OPT Advisory Opinion

Keyur Gongulur

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

Introduction

Almost two decades ago, the esteemedJamesCrawfordwrote:

“There may come a point where internationallawmaybejustified in regarding as done that which ought to have been done, if the reasonithasnotbeendoneisthe seriousdefaultofonepartyandif 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, notwithstandingthefacts”

Specifically, this article will examine whether Crawford’s “estoppel principle” should apply to Palestine in lightoftheICJ’s2024AdvisoryOpinion.

Before summarising my overall argument, it is helpful to make a few preliminarypoints.First,thisarticlewill 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 OccupiedPalestinianTerritory(OPT)is thesolereasonwhyPalestinedoesnot currently satisfy the requirements of Statehood. Neither of these assumptions is incontrovertible, but both are necessary to frame the discussion.Whileitcouldthereforebe said that this article is entirely academic, as will soon become clear, theanalysisneverthelessrevealsmuch about the current state of the principles of self-determination, the prohibitionoftheuseofforce,andthe distinction between States and nonStateterritorialunits.

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

The recent case of RTI Ltd v MUR Shipping BV[1] offers a valuable insightintocorevaluesinthelawof 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,theeffectsofforcemajeure events and the interpretation of contractualterms. internationalobligationsforIsrael.This effectivelyallowsittoavoidobligations thatwouldotherwiseapplyifPalestine were already a State. However, this argumentcollapsesifIsraelhasalready violated, or has been found to have violated, the very obligations it would have owed to Palestine had the latter achievedStatehood;theestoppellogic 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 PalestinewereaState.

This becomes especially clear when comparing the obligations States owe toeachother–assetoutintheUnited Nations General Assembly (UNGA) resolution 2625 1970 (XXV) with the findingsoftheICJinits2024Advisory Opinion(fromhereon–“OPTAO”).

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 prohibitionagainsttheuseofforceand therightofself-determinationhasled toanoverlapbetweentheobligations owedtoa“territorialunit”andaState. Critics would argue that a distinction must be drawn between the obligationsowedtoaStateandthose owedtoa“territorialunit”.However,it

is submitted that the distinction betweentherightsofaStateandthe rights of a non-State constitutes an arbitraryandintellectuallyunsatisfying explanation. Proponents of this distinction fail to consider that the intendedbeneficiariesoftherightsofa StatecannotbetheStateitself,butare, 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,aswillbeargued,isanormatively desirable position, recognising that international law ultimately protects theinterestsofpeople,ratherthan“the State”.

Each relevant obligation in Resolution 2625(XXV)willbeexaminedaswellas the obligations the ICJ found Israel in breachofinits OPT AO. Itisalsoworth mentioning that the ICJ has affirmed thattheResolutionreflectsCustomary InternationalLaw.

The Prohibition Against the Threat or UseofForce

Resolution 2625 (XXV) “solemnly proclaims” the principle “that States shall refrain in their international relationsfromthethreatoruseofforce 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] contrarytotheprohibitionoftheuseof 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.AsMilanovicobserves:

“...the Court never explains who exactlytheArticle2(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 Article2(4)evenapplies”

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.ItappearstheCourtconsidersit irrelevantwhothetargetoftheforceis; so long as a State uses force in its internationalrelations,itisinbreachof theprincipleofnon-useofforce.Thisis particularly striking because, prior to this ruling, it was reasonably arguable that the prohibition applied only between States. That view was supportedbythetextofArticle2(4)of the UN Charter, which requires Memberstorefrainfromthethreator use of force “against the territorial

integrity or political independence of anyState[…]”.Theexplicitreferenceto “States” had suggested that only entities possessing Statehood were beneficiariesoftheprohibition.

Now, it does not matter whether the principleofnon-useofforceisowedto Palestine as a territorial unit or to the Palestinian people. The principle operates unilaterally to prohibit all Statesfromusingorthreateningtouse forceintheirinternationalrelations.

Theexpansionoftheprincipleofnonuse of force to situations in which a Stateadoptsannexationistpracticesin respect of a non-State entity means that Israel has not avoided breaching theprohibitiononthethreatoruseof force merely by preventing Palestine fromachievingStatehood.Accordingly, the estoppel logic underlying Crawford’sprincipleisnottriggeredin thiscase.

The Duty to Settle International DisputesbyPeacefulMeans

The Resolution provides that States shallsettletheirinternationaldisputes by peaceful means, in a manner that doesnotendangerinternationalpeace, security,orjustice.IntheOPTAdvisory Opinion,theICJdidnotfindthatIsrael acted in breach of this principle. That conclusion, however, does not mean that Israel is not in breach of the principle.

ItisarguedthatthereasonwhytheICJ didnothavetoruleonwhetherIsrael wasinbreachofthisdutyisthatitwas 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 “prolongedoccupation,settlementand annexationofthePalestinianterritory”, 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 whetheracertainState’sconductisin breach of a specific obligation. This is anissueofjurisdiction,notsubstantive 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 reasonablelawyersandpoliticiansmay disagreeastowhetherIsraelhasdone enough to discharge this obligation, that disagreement is not relevant to the question of whether the estoppel argumentistriggeredhere.Solongas Israelremainsboundbytheobligation and is not, through wrongful conduct, circumventing it, Crawford’s principle doesnotapplytoconferPalestinewith Statehood.

ItfollowsthatIsraelwouldbeinbreach of this duty regardless of whether its policies and practices are preventing Palestine from becoming a State. It is therefore not avoiding the wrongful consequencesofitsconduct.

ThePrincipleofNon-Intervention

Resolution 2625 (XXV) provides that “No State or group of States has the righttointervene,directlyorindirectly, for any reason whatsoever, in the internalorexternalaffairsofanyother State.” The principle of noninterventionflowsfromtheconceptof sovereignty, a status reserved exclusivelyforStates.Thisisconfirmed by the ICJ in Nicaragua, where the Court held that “a prohibited intervention must accordingly be one bearingonmattersinwhicheachState is permitted, by the principle of State sovereignty, to decide freely”. The individual obligations listed in the Resolution similarly make clear that thedutyisowedtoa“State”.

TheICJdidnotfindthatPalestineisa State;insteadtheyassumedthatitwas a ‘territorial unit” that, presumably, doesnotenjoysovereignty.Byvirtueof this assumption, it appears that by preventing Palestine from achieving Statehood, Israel may effectively be circumventing liability for breaching theprincipleofnon-intervention.

However, this analysis is incomplete. While there is a principle of nonintervention that flows from the broader principle of sovereignty, it appearsthatthereisanalternative,but identical principle of non-intervention that protects a territorial unit such as Palestine.Theprohibitionofthethreat oruseofforcesitswithinthisbroader principle of non-intervention. As the ICJheldinNicaragua:

“Theelementofcoercion,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 militaryaction,orintheindirect formofsupportforsubversiveor 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 “involveathreatoruseofforce”

It appears that all acts violating the prohibitiononthethreatoruseofforce also breach the principle of nonintervention; the reverse may not necessarily be true. In this sense, the prohibitionontheuseofforcecanbe understoodasasubsetofthebroader principleofnon-intervention.Asnoted 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 unitssuchasPalestine.Theprohibition, as a rule of Customary International Law, does not operate solely between States;itbindsallStatesirrespectiveof 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 principleofnon-intervention,hasbeen extended to situations involving nonStateterritorialunits,itlogicallyfollows that the principle of non-intervention itself can no longer be viewed as protecting only States. Whether this extension is grounded specifically in therightofself-determinationorsome other norm remains unclear. What is clear, however, is that the obligations flowing from the principle of nonintervention, as articulated in Resolution2625,nowbenefitterritorial unitssuchasPalestine.

This is not to say that the original formulationofnon-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 normativeimportanceattachedtothe rightofself-determination.

Ifthisanalysisisaccepted,itbecomes apparent that Israel has breached the principle of non-intervention, even though the Court did not expressly makesuchafinding.

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,socialandcultural system,andtheformulationofforeign policy”. Applying the same reasoning used in relation to the duty to settle internationaldisputespeacefully,Israel isthereforenotabletocircumventthe principle of non-intervention through itswrongfulconduct.

ThePrincipleofSovereignEqualityof States

The Resolution stipulates that sovereign equality includes the followingelements:

“(a)Statesarejuridicallyequal;

(b) Each State enjoys the rights inherentinfullsovereignty;

(d) The territorial integrity and political independence of the Stateareinviolable;

(e)EachStatehastherightfreely to choose and develop its political, social, economic and culturalsystems;

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

Provisions (a), (b) and (c) are pure benefits that accompany Statehood andsovereigntyratherthanrightsthat create corresponding obligations that bindotherStates.Provisions(a)and(b) express status-based qualities that attachautomaticallytoanyentitythat qualifiesasaState.Theydonotrequire otherStatestoperformorrefrainfrom any specific act. Rather, they simply reflectthelegalpositionandcapacities 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 notfreedomfromthelawbutfreedom within it. Accordingly, the fact that Palestine,asanon-Stateterritorialunit, does not benefit from these does not mean that Israel is avoiding the consequences of its unlawful occupation.

In contrast, provisions (d) and (e), clearlyimposeprescriptiveobligations. However, these obligations significantly overlap with those arising fromtherightofself-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]whichoverlapswith element (d) of sovereign equality, requiring States to respect the personality, territorial integrity, and politicalindependenceofotherStates. Second, the fourth element of selfdetermination is identical to (e), since bothprotecttherightofapeoplefreely 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 thelatterbypreventingPalestinefrom achievingStatehood.

However, this reasoning is open to crucial objections. Namely, that the obligationsthatflowfromtheprinciple ofsovereignequalitybenefittheState, while the people are the intended beneficiaries of the obligations that flow from the right to selfdetermination. They are two distinct bodiesofrightsandobligations.While Israel is in breach of the obligations it owes to the Palestinian people, it is circumventing its obligations owed to theStateofPalestinethroughitsown unlawfuloccupation.

overstatedindoctrine.TheState,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 dutiesininternationallaw(suchasthe 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 theuseofforce.

Critics may argue that the relevant normative foundation is sovereignty. Twopointscanbemadeinresponse

ofsovereigntymustremainconsistent with the people’s right “freely to determine[their]politicalstatusandto pursue [their] economic, social and culturaldevelopment”.

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 owedtotheStateareinfactitspeople, then drawing a rigid distinction betweentherightsofStatesandthose ofpersonsbecomesunhelpful.

Some might say this distinction flows fromsovereigntybeingtheorganising conceptofinternationallaw.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 statusthatbenefitstheStatealoneto one that recognises that its ultimate beneficiariesmustbethepeople.

[1] NB. This is only insofar as their policies and practices do not breachtherighttoself-defence.AmatterthattheICJ,notably,does notaddress.

[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 domesticlawintheWestBank,particularlyinAreaC;SeeOPTAOat [170]; Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem,AdvisoryOpinion,ICJReports2025,[170]

[3] [237]; “ a key element of the right to self-determination is the rightofapeoplefreelytodetermineitspoliticalstatusandtopursue itseconomic,socialandculturaldevelopment.”

Bibliography

1.CrawfordJ,CreationofStates(2ndEdition,Oxford,2007),447-448

2.Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, AdvisoryOpinion,ICJReports2025

3.Milanovic M, "No, Recognizing Palestine Would Not Be Contrary to InternationalLaw",(EJILBlog,31July2025)

4.Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the CharteroftheUnitedNations(GARes26251970(XXV));

5 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports1986)

6.UnitedNationsCharter,Article2(4)

7.StatuteoftheInternationalCourtofJustice,Articles65-66

8.MavrommatisPalestineConcessions(Greecev.U.K.),1924P.C.I.J.(ser. B)No.3(Aug.30)

9.Military and Para-military Activities in and against Nicaragua (NicaraguavUSA),ICJReports1986,[205]

10.CrawfordJ,‘SovereigntyasaLegalValue’inCrawfordJ,Koskenniemi M, The Cambridge Companion to International Law (Cambridge UniversityPress2012),Page122

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 Rory Shankar

Introduction

It is an inevitability in a system of hereditary monarchy that a child may succeed to the throne before theyaredeemedreadytorulebythe law.Thesystemmustprovideforand strike a balance between the interests of the child Sovereign and thoseoftheStateatlarge.Likemost monarchies, the United Kingdom provides for a Regent to act in the Sovereign’s stead during their childhood.

Thisarticlewillfirstintroducethelaw of guardianship under the Children Act 1989, and then examine the RegencyAct1937asanexceptionto that system. The Regency Act 1937 createsdualroles:theRegentwields thepowersoftheSovereignandthe Guardianexercisesparentalroleover 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 Guardianinordertoavoidasituation inwhichthewelfareoftheSovereign and the interests of the nation are threatened by an inappropriate Regent-cum-Guardian. Page 24

TheStatusoftheSovereignandthe RegencyAct1937

ThroughoutthehistoryoftheUnited Kingdom, there had never been a permanentenactmentregulatingthe entry into a regency until the Regency Act 1937. Parliament preferred to create a Regency if and whentheneedforonearose.

Whileregencieshaveoccurredinthe United Kingdom, they arose because of the incapacity of an adult Sovereign, rather than a Sovereign being underage. When George VI accededtothethronein1936,hisheir wasthe11-year-oldPrincessElizabeth. HequicklyrequestedthatParliament enact a permanent Regency Act, whichstillgovernsthelawofRegency today.

Section 1(1) of the Act creates a Regencywhenandforaslongasthe 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, andbeanadult.

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)].Ifsheisnotalivebut theSovereignismarriedtosomeone offullage,thentheirspouseshallbe Guardian[s5(b)].Inallothercases,the RegentshallbeGuardian[s5(c)].

ThesituationofaSovereignmarrying a person of full age is now a dead letter,asthelegalageofmarriagehas since been raised to eighteen by section 1 of the Marriage and Civil Partnership(MinimumAge)Act2022.

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

Therelationshipofguardianandchild (knownastheward)isalongstanding one; Blackstone describes it as bearing ‘a very near resemblance to [the parent-child relationship], and is plainly derived out of it’. This was reflectedintherightsanddutiesofa guardianbeingthesameasthoseof 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’roleinraisingandcaringfor theirchildandtheirproperty.The

languageofguardianshiptodescribe all parental or quasi-parental legal relationshipshasnotbeenusedsince thepassageoftheChildrenAct1989. As Scherpe notes, the 1989 Act presaged a definite shift towards a morebalancedviewofparenthoodby introducing the idea of ‘parental responsibility’.Thisincludedtherights and duties a parent had under existing law, meaning that the common law substance of the guardian-wardrelationshipcontinues to persist under the label of parental responsibility.

However, a guardian under the ChildrenActisnowusedtodescribea non-parent who is appointed to exerciseparentalresponsibilityovera child.Theyareappointedbythecourt or by the will of a parent who has parentalresponsibility.

InteractionbetweentheRegency Act1937andtheChildrenAct1989

Both Acts purport to govern guardianshipallocation,butleaveitto the general law to determine the substantive content, meaning they sharethesamecontent.

Thereisadegreeofinconsistencythatneedstoberesolvedbetweenthesetwo Acts.TheChildrenActsection5(13)declaresthat‘Aguardianofachildmayonly beappointedinaccordancewiththeprovisionsofthissection’.Thisisobviously 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.

ItcouldbethecasethattheChildrenAct,therefore,impliedlyrepealedsection 5 of the Regency Act. Implied repeal occurs when a subsequent Act of ParliamentdoesnotexpresslyrepealapreviousActofParliament,butdueto theinconsistencybetweenthelaterandearlierActs,theearlierActorapartof thatActissaidtohavebeenrepealed.

However, this is not the case here. It is a general notion of statutory interpretationthat generalia specialibus non derogant (“generalprovisionsdo notoverridespecialones).TheruleinEnglishlawisthatifthegeneralruleslaid 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,theRegencyAct1937)apply,thenbothareappliedintheirrespective fields. As the Children Act applies to every child apart from one (who is theoretical,consideringthattherehasnotbeenachildSovereigngovernedby theAct),theseActsarereconcilable,andtheRegencyActdoesapplytoachild Sovereign.

RegencyAct:anevaluation

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 directinterestintheirupbringingand should have the institutional competencetolegislatetoprovidefor the designation of a Guardian. A court’s ability to undertake a multifactorialassessmentofthefacts ofthecaseandruleinthechild’sbest interests under the Children Act is valuable, but the upbringing of the monarch is not just a private matter. Itisalso,inmaterialterms,amatterof high politics, and Parliament, which has been entrusted with the stewardship of the nation, should be able to decide on the rules affecting guardianship.Thisjustificationforthe exclusion is acceptable, given that Parliament is a vigilant observer of potential hiccups and would be able to respond quickly by altering the rulesonanadhocbasis.

The first rule of the Sovereign’s legal guardianshipinsection5(a)isinand of itself wholly unobjectionable; the mother of a Sovereign would generallybeoneoftheclosestpeople 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:asachildMonarchwould havelikelyinheritedfromtheirfather, there is little point in providing for a deceasedfatherasGuardian.

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 thisomissionin1953andprovidedfor Prince Philip, rather than Princess Margaret,tobecomeRegentifQueen Elizabeth II had died before Charles came of age. The lack of the father’s roleintheupbringingofhisMonarch son was considered undesirable, and this should be reflected on a longtermbasis.Unfortunately,Parliament only legislated for the specific situation they were faced with, and the original 1937 rules continue to applytoday.

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,butrather,theyareappointed bytheirplaceinthelineofsuccession. It is true that the Sovereign and Regent must necessarily be related forbothtobeinthelineofsuccession in the first place, but it is more likely forthemtobeaslightlymoredistant relation. The Regent would generally be an aunt, uncle or older cousin to theMonarch.

A ‘nightmare’ scenario could be envisagedhere:ifatanypointbefore 2031,KingCharlesandPrinceWilliam both die, Prince George would becomeKing.HisGuardianwouldbe hismother,PrincessCatherine,butif she were to die as well, then the Regent would be George’s legal guardian.TheRegentwouldlikelynot currentlybePrinceHarry,asheisno longer domiciled in the United Kingdom,meaningthatthestatusof Regent and legal guardianship of King George would be bestowed on Andrew Mountbatten-Windsor, whose relationship with Jeffrey Epstein and allegations of sexual abusemakehimclearlyunsuitable

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 onhisplaceinthelineofsuccession. 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, includingcontrolovertheirextensive privateestateandtheirupbringing,is clearlyinadvisable.

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 thetraditionallineofsuccessionwith a more meritocratic and flexible system, is an argument against a monarchical system of governance itself.However,itisentirelylegitimate and logically coherent with the principle of hereditary monarchy to exclude one person or group of personsfromthelineofsuccession.

The Danger of Automatic Operation and Why Parliament Should Act proactively

Deathcomesforusall,includingMonarchs.AstheCrownpasses(‘demises’)to thenextMonarchondeath,theRegencyAct’sprovisionsoperateautomatically, including the designation of the Regent and the Guardian. The Regency was notintendedtobeaninflexibleembeddedsetofrules,butalong-termdefault setofrules–indeed,section5oftheActdeclaresitselftobetherulesgoverning appointment of the Guardian, ‘unless Parliament otherwise so determines’. ParliamentistheoreticallyfreetoamendorreplacetheRegencyAct.

AGuardianwhoisnotRegent(whowouldbetheSovereign’smother)wouldbe easytoremovefromherrolebyanActwhilesheisholdingoffice,butanAct removing the Regent or Regent-cum-Guardian would have complications, as theActcouldonlybecomelawiftheRegentgaveitRoyalAssentthemselves. Thiswouldatbestbeawkwardandatworstcauseaconstitutionalcrisisifthe RegentrefusedtogiveAssent.

Indeed, British history has been littered with this practice. Excluding specific peoplefromtheabilitytobeRegentandGuardianisanaturalextensionofthis practice. The current makeshift system of removing undesirable figures from the working Royal Family but not excluding them from becoming Regent or Guardianisagamblethatisnotnecessarytotake. Page 29

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 statutorilyunabletogiveRoyalAssent to any Bill of Parliament that would alterthesuccessiontotheCrown.

Parliament would therefore wish to alterthesuccessionbeforeapossible regency.

However, there is a constitutional convention that any change to the succession of the Crown must be agreed to by all Commonwealth Realms,makinganyalterationmuch more difficult and extensive. However, the restriction in the RegencyActonthelineofsuccession doesnotaffectParliament’sabilityto change the rules of eligibility to be RegentandGuardian,whichalsofalls outside the convention on Commonwealthagreement.

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 appointmentofGuardians,theActis generallyfitforpurpose,thoughtwo straightforwardimprovementswould enhance it: providing for fathers to serveasGuardiansandremovingthe now-redundantprovisionforanadult spouse.

Parliament must additionally be willing to act decisively to exclude unsuitable individuals from attaining very high positions of State, which couldalwayshappenunderasystem of hereditary monarchy. Without alteringthelineofsuccession(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 thesignificantdifficultyofamending thelawduringaRegency,Parliament must act pre-emptively.". The exclusion of the Sovereign from the scope of the Children Act is only justifiableifParliamentisflexibleand willing to exclude unsuitable Guardians. Only through proactive exclusion of unsuitable individuals can Parliament fulfill its duty to protectboththechildonthethrone andthethroneitself.

Bibliography

1. Bailey D and L Norbury, Bennion on Statutory Interpretation (8th edn, LexisNexis Butterworths2020)

2. Blackstone W, Commentaries on the Laws of England: Book I: Of the Rights of Persons (Clarendon1765)

3.BrazierR,‘RoyalIncapacityandConstitutionalContinuity:TheRegentandCounsellorsof State’[2005]64(2)C.L.J.352

4.FarranC,‘TheRegencyAct1953’(1954)M.L.R.17(2)

5. Hazell R, ‘Prince Andrew and the future of the monarchy’ (The Constitution Unit Blog, November 2025) <https://constitution-unit.com/2025/11/08/prince-andrew-and-the-futureof-the-monarchy/>accessed9January2026

6. Scherpe J, “Parental Responsibility” in J Scherpe and S Gilmore, Family Matters: Essays in Honour of John Eekelaar (Intersentia2022)

7.TwomeyA,‘ChangingtheRulesofSuccessiontotheThrone’[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> accessed26November2025

Key terms:

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

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(1) The mark achieved on essay beingsubmitted

We aim to publish the highest quality work to help current and future students prepare for their exams.

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We aim to ensure diversity of contributors, offer a wider range of styles and illustrate the different waysinwhichafirst-classmarkcan beachieved.

(3) The year in which the student sattheexam

We aim to publish recent work to ensure that the law discussed and citedremainscurrentanddoesnot confusestudents.

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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 beheldlegallyresponsibleforthe consequences of his actions, or whether holding the accused responsible for [those consequences]wouldamountto punishing a moral innocent.’ (KARAKATSANISJ.)

Towhatextent,ifatall,doesthe criminal law of England and Wales maintain this focus in its rulesonlegalcausation?

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.Isubmitthatthisstretches thefunctionofcausationtoofar–while I agree that causation findings are a normativeexercise,itisimportantnot to neglect the role of mens rea in findingsofmoralresponsibilitytoo.

Causationisnormativelysensitive

In the central case of Hughes, the Supreme Court established that the wrongfulnatureofD’sbehaviourmust be causally salient to the resulting outcome. In that case, D had been driving without a valid license or insurance.Vwhowasdrivingrecklessly andintoxicated,waswhollyatfaultfor crashing into him and dying. While D was charged with causing V’s death under section 3ZB of the Road Traffic Act1988,theSupremeCourtheldthat D was not causally responsible for V’s death as his driving was otherwise faultless, thereby reversing his conviction.Thisisarguablyanintuitive outcome, but has been criticised –notably, Simester argues that the decision loses sight of the “core, physicaldimensionofcausation”.

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, whicharisesfromtheconsiderationof “morallysensitiveprinciples”tobridge instances of direct causation rather thanundermineafactualpattern.

However, I submit that his account overestimatestheabilityofmechanical analysestoprovidecoherentdoctrines 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 irrelevanttothemechanicalcausation ofV’sdeath.Would Simester thensay that D is absolved of causal responsibility? It seems implausible andcontradictory.

Apart from Hughes, this can also be seen in the inherently normative distinction between an act and omission in the criminal law. A physicalistexplanationsuchas Moore’s definition of acts as “willed bodily movements” fail to explain case-law –forexample, Speck,wheretheCourtof 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 normativeconsiderationsinfindingsof legalcausation,especiallywithrespect totheact/omissiondivideasithas

implications on autonomy and criminalisation (Jareborg notes that criminalisationofomissions“cutsoffall act alternatives except one”, while criminalisation of acts “cuts off only oneactalternative”).

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 thatmechanicalcausationis 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 thefree,deliberate,andinformedactor (Kennedy (No. 2)), and perhaps even Feinberg’s “trigger” principles, as “topoi”orprinciplestobeconsideredin 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 meantittobe.

Rather, it might be more precisely argued that the best explanation for Hughes is that the risks that the prohibition(andParliament)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). Onsuchabasis,legalcausationmight justifiablynotbefound.

The importance of the judgment in Hughes shouldnotbeoverstated–itis anelementofcausationthatwilllikely arise only prominently in strict liability offences, and more specifically strict liability offences with consequence elements in the actus reus. This is relativelyrare.Thisisbecausethebulk oftheheavyliftinginfindingsofmoral responsibility should lie in the mens reaofcriminaloffences.Iwillarguethis with reference to two points: firstly, an actor might rightly be a legal cause without being blameworthy, and secondly,anactormightrightlynotbe alegalcauseevenifheisblameworthy.

First, the law does make provisions for actorstobelegalcauseswithoutbeing blameworthy. This is because of the mens rea function. To give just one example, D can breach criminal interests without being blameworthy ashemightnothaveforeseenarisk,as perthetestforsubjectiverecklessness (G and Another).OnthefactsofGand Another, the defendants set fire to newspapersatthebackofashop.This fire spread and damaged the shop, as wellasnearbyshops.

The courts found that they were not blameworthy (whether they should havebeenheldasbeingblameworthy 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 blameworthinesswithoutstuffingitall intocausationfindingsmightbefound in the innocent agent doctrine in the lawofcomplicity–ifSprocureda(nonstrict liability) offence from P but P lackedmensreawhileShadmensrea, P is an innocent agent and S can be liableasaprincipal(Michael).

Second,anactormightrightlynotbea 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 didnot,andVinsteadwenttoBelgium tocommitsuicidemonthslater.

TheCourtofAppealquashedherconviction,sayingthatsheonlycouldbeheldas having caused his death if it was reasonably foreseeable at the time of her commissionoftheoffence.Onretrial,thejuryfoundthatthiswasnotso.Ifindthis outcomeincausationtobecorrect–thereasonableforeseeabilitytestappearstobe 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,Vwasrightlyacquittedonthefacts.Thisshowsthatlegalcausationcan rightlynotbefoundevenifDissufficientlyblameworthyforanoffence.

Thesetwocontrastingsetsofexamplesshowtheimportanceofmensreaandactus reusastwofree-standingprinciplesinthelawtoindependentlyestablishthelegal consequences(actusreus)and“moralinnocenceorguilt”ofD’sconduct(mensrea), 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 desirabletoconsideractusreusandmensreaseparatelywhenitispossibletodoso.

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.’(FERRAN2019)

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,butalsobroadersocietalconcernssuchastherisksborneby creditorsofcompanies.Asawhole, Ferran (2019)isbroadlyrighttosuggest that the approach is not impactful, although they occasionally provide at best, a minimum level of protection. I will first define internal corporate constituenciesandthebroadersocietalconcerns,particularlyinrespectof creditors, before examining the rules governing raising capital and maintainingcapitalinthisarea.Finally,Iwilldiscussthepossibilityoflegal capitalrulestobereformedpost-Brexit,andhowinthepresentcontext,itis bolsteredbythelaw’sapproachtodirectors’dutiesandinsolvencylaw.

Joyce Mau | Mark: 76

Internal corporate constituencies andbroadersocietalconcerns:

The internal corporate constituenciesreferredtoby 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 buybacksandredemptions,which,if constitutes a class right, requires a super-majority for class rights holderstoapprove(s630).

Ferran (2019) refers to broader societalconcerns,whichshelinksto therisk-bearingcapacityofcreditors in the modern economy. Ferran (2019)explainsthatunlikethetime of the CA 2006 where the UK economywasridinghigh,today,the predominant discussion centres aroundthebreakdownofthesocial 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, ratherthanshareholders,beingleft topickupthebillforfailure(Tooze (2018)). As such, legal capital rules represent a form of checks and balances on strategic corporate decisionsincludingthoserelatingto capital, investment and returning valuetoshareholderswhichwillbest support long term success (Ferran (2019)).

Assuch,thelegalcapitalrulesalso seektoprotectsuchbroadersocietal concerns particularly in relation to creditors. Whether this approach is impactfulremainstobeseen.

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 examineeachinturn.

Raising capital

Minimum capital rules

Theauthorisedminimuminrelation 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 beingcalledupbythecompanyata laterdateoronitsliquidation.

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 requirementforpubliccompaniesto begintrading.Arguably,theseassets can be lawfully dissipated in the course of its trading, and therefore, the‘protection’offeredtocreditorsis not as meaningful as he may assume.

Furthermore,thesumof£50,000is highlighted by Gower (2021) to be too low effectively to protect creditors,albeitgroundedinasound policyreasonforfearofdiscouraging theincorporationofcompanies.

Notably,thisalsodoesnotapplyto private companies, which Armour (2006)seesasanadvantageasthere is no entry price on limited liability whichallowssmallfirmstoengage inentrepreneurialactivitiesthatcan maximise shareholding. However, this is still a rather weak link. Therefore, the minimum capital rules have little meaningful connection to protecting shareholderorcreditorinterests.

Paymentofshares

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)andexistingshareholders have a mandatory right of preemptioninrespectofanewofferof shares(s561(1)(a)),andsuchanoffer 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 companybyacquiringalargerslice ofownership,andasaconsequence, greater dividends. However, private companies may easily opt out of such pre-emption rights by includingaprovisionintheirarticles (s567)whichrendersthisadvantage for shareholders in private companiesratherweak.

Anotherkeyruleinthisareaisthat shares cannot be allotted at a discount(s580)forbothprivateand 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,thenominalvalue of shares is ultimately set by the company, a low price ultimately means that this concern is less prevalent. Page 40

Thus,thisalsohaslimitedimpacton creditors (Gower (2021)) and may actually harm creditors’ interests when nearing insolvency as companies are unable to rescue themselves from pricing shares at lowerpricesthatmayallowthemto bebroughtbacktosolvency.

Maintenanceofcapital

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 thatpersonswhodealwithandgive 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 reductionofcapitaldonotoperate to bar reductionofcapital.Rather,its essentialaimistoensurespending is legitimate. As such, many of the rules in this area are often proceduralandnotsubstantive.

No payments out of share capital: dividendsandsharebuybacks

Dividendpaymentscannotbemade outofsharecapital(Flitcroft’s case) andcanonlybemadeoutofprofits available for the purpose (s830(1)). Similarly, a limited company may onlypurchaseitsownsharesoutof (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)). Theserulesforbiddingpaymentsout 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,theproceduralrulesabove dosufficetoprocedurallystreamline companies’ behaviour in reducing their share capital and to ensure their spending is legitimate. However, from a broader perspective,theserulesonlyaddress the procedural aspects of maintaining legal capital, and as alluded to, companies are still broadly free to reduce their share capitalaslongastheycomplywith these rules. Therefore, illegitimate spendingismerelyavoided,notthat spending itself is barred, thereby conferring limited protection for creditors.

Sharebuybacksandredemptions

Nonetheless,ifsharebuybacksand redemptions occur out of shares with a class right, the must obtain consent from the holders of these sharesunder s630(4) andclassright holderscanapplytocourttocancel thevariation(s633).Similarly,inoffmarketsharebuybacks,aresolution is needed (ss695-699) Ultimately, the rights of shareholders are protectedhere,ratherrobustly.

Reductionofcapitalmethods

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-effectiveforprivatecompanies as opposed to a court order (Weightmans (2017)), and special resolutions are much more administratively friendly such as to benefitshareholdersandtheboard in these companies. The robust protectiontocreditorsofferedbythe 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 reductionsalsoentailaconfirmation of the special resolution by the company (s641), but arguably the procedure of applying to court is much more cumbersome for the boardthanasolvencystatement.

Unlike solvency statements, creditorsaregivenanexplicitvoice 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 protectionoftheinterestsofinternal corporate constituencies and broader societal concerns for creditors.

Themoderncontext

Interaction with directors’ duties andinsolvencylaw

From a broader perspective, these rulesarecapableofaddressingthe interests of shareholders and creditors, only to a procedural extent.Asalludedto,companiesare still broadly free to reduce their sharecapitalaslongastheycomply with these rules. Rather, the real problem that creditors face, which thelegalcapitalrulesfailtoaddress, is management issues within the companyandwhethertheywillbe financially profitable. Therefore, these maintenance of capital rules arguably fail to address the key concernsofcreditors.Theserulesdo not stop spending – they merely stopillegitimatespending.

As a consequence, the better solutionisnottooverlyrelyonlegal capitalrulestoprotectcreditorsand shareholders. The focus instead, should be whether these rules adequately ensure that corporate spendingislegitimate.

Armour (2006) highlights that a one-size-fits-all approach to all companies maynegateimportantdifferencesbetweencompanieswheretheappropriate level of reduction restrictions differ. Even so, differing rules on reduction of capitalwillstillfailtoaddressthepossibilityofmanagementshortfalls,evenin light of the numerous procedural restrictions put in place. Rather, managementshortfallsarebestcurtailedbysubstantivedutiesofdirectors,for example,bythemodifieddutyin s172 andthe Sequana thresholdsuchthata 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’interestswhenacompanyentersintoinsolventadministrationunder s214 and s213 IA 1986 forfraudulentorwrongfultrading,whicharguablyhave a more impactful approach as opposed to legal capital rules in protecting shareholdersandcreditors,particularlyinlightof Ferran’s(2019)claim.

Reform

ItremainstobequestionedwhetherafterBrexit,thereisscopetoreformthe legalcapitalregime.Ultimately, Ferran (2019)raisesthepossibilityofreforming the rules post Brexit, not just because of Brexit but because of its ineffectiveness.

Conclusion

Inconclusion,whilethelegalcapitalruleshavelimitedabilitiestoprotectthe interests of internal corporate constituencies and address broader societal concerns,itsimpactislargelylimitedandoughttobereformed.

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”mattermoreproperlywithinthesphereoftheChurchcourts. But that is better regarded as a description of the situation than as a reasonforit.’(BAKER)

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.

Remediesfordefamationpriorto1500

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 AuctoritateDeiPatris. The constitution was comprised of four

Discuss in relation to the emergence of the action on the case for defamatorywords. Page 44

elements: imputation of crime, malice, reputational damage and remedy. Most interestingly, the imputation was in practice not limited to religious crimes because secularcrimescouldberemediedin theecclesiasticalcourtsuntillateC15 (Helmholz). The imputation was so wideastoincludenon-criminalbut generally damaging imputations sinceasofleprosy(ColmerevDaniell (1413)) or servile status (Ex officio v. Cadbury (1424)). This reaffirms Baker’scriticismofspirituallyasthe justification for the ecclesiastical monopoly: the imputation was not limited to spiritual issues so defamation was in reality not a wholly‘spiritualmatter’bynature.In reality, ecclesiastical ‘defamation … had a way of breaking out of its boundaries’ (Helmholz, 1985). The remedieswereonlyreligiousperthe 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 soproperlyonlyundertheChurch’s jurisdiction,thelimitationtospiritual remedies was not inherent to the characterofdefamation–evidenced bylaterfinancialremediesprovided bytheactiononthecaseforwords–the limitation was manually constructed. This reinforces Baker’s assertion that the ecclesiastical monopolywasaproductofsituation, notnecessity.

Onewouldbemistakentothinkthat there were never non-ecclesiastical remediesfordefamationpriorto

1500 which only serves to reaffirm the situation, not necessity from reason, point of Baker. Prior to 1350 (lastlocalcourtrecords),defamation could be remedied under the generalunderstandingoftrespassas “wrong”(Milsom),inthelocalcourts. 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 defamationcasesheardinonelocal court 1296-1305, all 14 would have beenactionableintheecclesiastical courts (Helmholz, 1985). The two systems‘ignoredeachothermoreor 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 actskilledoffdefamationinthelocal courts in the first half of C14 (Helmholz;manorcourtofRedgrave, Suffolk, ChaplainvShepherd (1315)).

Further in support of Baker’s point about situation, the common law courtswerewillingtoremedysome harmful words prior to 1500. Whilst notasextensiveasageneralaction onthecaseforwords,theabilityto remedy some words which would also have fallen under the ecclesiastical wrong evidence that the ecclesiastical monopoly must havebeenbecauseofsituationand not spiritual necessity (e.g., scandalum magnatum). Whilst the action of trespass vi et armis for ‘lyinginwait’andthreateningto

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 wordswereimportantasnophysical threat was required (Haukyns v Broune (1483)). Therefore, whilst there was no broad defamation remedy, this was consequence of situationandnotspiritualnecessity.

Causesofecclesiasticalmonopoly

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 reasonsotherthannecessity.Inpart, 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 lawrivalactionwasnottheproduct ofspiritualnecessitybuttheproduct of procedural limitations in the commonlawcourts.Thecatalystfor thecommonlawcourtsaccepting

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 remedyingharmfulwordsinsteadof harmfuldeed(Baker).Thetrendwas not reversed until c.1500 with assumpsit for nonfeasance and actiononthecaseforwords.

Whilst it cannot be denied that contemporariesdidviewdefamation 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 thecaseforwordsinC16.Therewas indeedaquickchangeoftoneaway 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’ (Samfordv Walronde (1506)).

Earlyactiononthecaseforwords

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 writsofprohibitionand 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(LyncolnevHendy). Bythe1530s, therewasa‘marked…acceptanceof the new action’ (Helmholz, 1985) because reporters noted the development, litigants happily enteredpleasintheroyalcourtsjust 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 (grewfrom4-5perannumintheKB to15-20inthe1530s(Baker).Barthe 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 inspeakingof the plaintiff’s reputation ‘among goodandgravemen’andreference to malicious motive (‘scheming wronglytoharmandtakeawayhis nameandestate’)inacasefrom1511 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 reputationandbusiness).

In conclusion, Baker is very convincinginassertingthatthelack of common law remedy for defamation prior to 1500 was not a product of “reason” (spiritual necessity) but because of the “situation”asitunfolded(localcourt narrowing of trespass and the common law courts being more focusedondeedsthanwordswitha focus on physical proof). The easy wayinwhichactiononthecasefor 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) priorto1500.

Page 47

Civil Law in Context

Archie Bentham | Mark: 72

Drusus and Ennius are friends. Drusus, who belongs to a very rich family(theDrusians)whomadetheir money in the silver mines in Hispania,lendsEnniushissilverring, 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, pretendstoadmireit,andthenturns 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 hashappened.

Horatia, who lives nearby, sees the ring being thrown from the bridge. Shepicksitupoutofthemudatthe edge of the river, takes it home, and welds it on to a gold necklace she alreadyowns.

Ayearpasses.Drusus,seeingHoratia wearingthenecklaceonedayinthe forum,discoverswhatbecameofthe ring after Galba threw it into the river.

Advisethepartiesastotheremedies availabletothem.

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 vismaior.Here,eventhoughthering 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 Pomponiusheldthatthiswouldstill 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 forgottentoremoveit.

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. D.47.2.52.21 states that presenting a poor man as rich and then sharing the money with him could give rise toanactionintheft.Inthiscase,by bearingthecrestofanotherfamily,E hasveryspecificallyliedwithrespect to his identity, meaning that the actionavailablewillbetheftandnot fraud. In this case, a fundamental errortotheidentityoftheborrower

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 abletoclaimtwofolddamagesforthe value of the money loaned. Further, G.3.202 holds that someone who helpedwiththetheftisalsoliablefor it, and in this case as D has provided theringwhichEusedtolieabouthis identity, he is likely to be found liable for theft as well and therefore would also have to pay twofold damages. Accompliceswerealsofullyliableeven 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,asEhadthecustodia,hewould havetoclaimagainstGforthetheftof the ring. The first element required was contrectatio which is obviously foundinthecaseofGtakingthering and throwing it in the river. While he may have been granted consent to holdthering,hedidnothaveconsent tothrowitaway,whichisthepointat whichhecausesthevalidinterference required for theft. While there is not theftuousintenthere,theringhasstill beenthrownawaymaliciously,andD. 47.2.37 provides the example that chasing away someone’s tame peacock so it disappears can be consideredtheftifsomeoneelsetakes it. Here, the ring has been thrown awaysoit

disappeared and H has taken it, whichisenoughforGtobeliablefor theft.Further,asEhaswatchedthis happen, it is likely to be manifest theft, with an actio furti providing fourfolddamagesinthiscase.There may be an action here under damnum iniuria, however chapter 3 of the lex acquilia is specifically aboutpropertydamage,nottheloss 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 throughthisdelict.AsGhasthrown 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,whichwasdisrespectful 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 provedorwouldneedtobeproved. AsDwasnotthere,itcannotbesaid that his feelings were hurt by the insult, however in exceptional cases itcouldoccurevenwiththeplaintiff absent.Inthiscase,Dwouldhaveto 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 silvermerchant,alongsidethepublic nature of where the disrespect took place. In this case, damages were fixed by the praetor although the judge could award a lesser sum accordingtoG.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 thebridge,itisthentakenbyH.For H to validly take ownership of the ring through occupatio, it would have to be abandoned. In this case, theringwasnotabandonedasGdid not have the right to dispose of it, and D had no intention of relinquishing ownership. However, shemayacquireownershipthrough the incorporation into her necklace. In this case, it can be argued that using the test around the relative sizeandvalue,asilverringislikelyto 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 badfaith,andthereforeDmayhave anactiofurtiagainstherforthetheft ofthering.

ADMINISTRATIVE LAW

To what extent will the courts hold the government to its policies? Shouldtheygofurther?

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 separationofpowers,intheformof efficiencyandpreventionoftyranny, and further ensures that the courtroom is not co-opted for politicalpurposes.

TheCaseAgainstStanding

AlthoughWadefamouslysuggested that 'the primary purpose of administrative law is to keep the powersofgovernmentwithintheir

legal bounds, so as to protect the citizen against their abuse', it is more appropriate to see administrative law, as Sedley J in Dixonsuggested,asnotconcerning ‘baserights,’butratherwrongsand the‘misuseofpublicpower.’Indeed, the validity of such an approach is reflected in cases in which no individual person has been wronged,perse,buttherehasbeen 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 thananydiscernibleindividual,with one such example being s6 of the NHS Act. This was further reflected inWaltonvScottishMinistersin

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 thisregard,arightsbasedmodel,as Wadesuggests,wouldbeimpotent toreviewwhetherthestatutoryduty was complied with, as no one individualcouldshowthattheyhad been particularly harmed. In this regard,asElliottandVaruhasnote,a wrong-based approach is better suited to ensure that abuses of governmentalpowerdonotoccur.

Approaching administrative law through a wrong-based approach, therefore, ostensibly indicates that there should be no standing requirement. If administrative law, asIhaveargued,isconcernedwith themisuseofpublicpower,itwould beparadoxicaltosayonemustfind anindividualwith‘sufficientinterest’ (SeniorCourtsAct1981,s31(3)),asby the nature of society at large, everyonehasa‘sufficientinterest’in seeing public bodies act within the scopeoftheirpowers.

Onamorepragmaticlevel,however, thereisafurthercaseforremoving the requirement of standing. In manyinstances,therearesituations in which, under the current law, those with a ‘sufficient interest’ are eitherunwillingorunabletopursue ajudicialreviewclaim,eitherdueto a lack of finances, expertise, or general willingness. This is perhaps bestreflectedincasessuchasChild Poverty Action Group, where the individuals in question, who had a sufficient interest, did not have the effectivecapacitytobringajudicial

review claim. The broader approach ofstandinginallowingtheclaimto 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,oftenpotentialclaimantslack the required expertise to bring an effective claim, and therefore requiring a body to show that they have standing undermines the fundamental purpose of administrativelawinholdingpublic authoritiestoaccount.

Fundamentally, some would argue thathavingastandingrequirement 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 doorwidelyforthemisuseofpower bypublicauthorities.

TheSeparationofPowers

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 courtisalsoconcernedwithbroader constitutionalprinciples,suchasthe separationofpowersandtheruleof law. In this regard, removing the standing requirement would offend both conceptions of the separation ofpowersinthatitwouldreducethe overallefficiencyofthegovernment andthejudiciary,aswellasopening thedoortotheimproperexerciseof judicialauthority.

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 requirementofstanding.

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 placedtodosothemselves,butalso fundamentally made the claim more efficient – by bringing one single action claiming the illegality ofgovernmentaction,thecourtwas better placed to address the issue, rather than tackling a multitude of highly similar claims. In this regard, a broad version of standing allows fortheefficientuseofcourttime.

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 suggestthattheterm‘busybodies’.

is question begging, in that it assumesthatthereisnovalidclaim tobeingwith,thiscanberebutted. 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 validclaim,itwillneverbebrought. Moreover, it still takes court time in showingthatsuchclaimsareempty. More fundamentally, however, removingthestandingrequirement also, as Schieman argues, would ‘freeze’ administrative action. Were everyoneallowedtobringclaims,no matter how bogus, administrative bodies would be entirely unable to act, instead having to wait for each courthearingtodeterminewhether theiractsareunlawfulornot.

Furthermore, the argument that standingshouldberemovedonthe basis that it allows bodies with specialistexpertisetobringaclaim, and therefore more effectively challenge misuses of government power,isalsoflawed.Thisisbecause, as Harlow argues, drawing on Lon Fuller’s idea of polycentricity, such polycentric disputes where such expertise is needed are unsuited to legaladjudication. Theyoftencause repercussions in other policy areas andoftenotheraffectedpersonsare 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,Harlowreferences the case of Heil v Rankin in which there were eight cases, sixteen partiesandtwenty-eightcounsel.

Clearly, removing the standing requirement on the basis that certainbodieshavetheexpertiseto challenge government decisions greatlyunderminestheefficiencyof bothpublicbodiesandthecourts.

For these reasons, therefore the removal of the standing requirementshouldberejectedasit greatly increases inefficiency in all areasofgovernmentandthecourts.

PreventionofTyranny

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 Harlowsuggests,suchanapproach, asseeninPergauDam,legitimates this form of political lobbying, further discrediting the judiciary as it appears as though they make decisions based on politics, rather thanlaw.

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. Allowingsuchclaimsservestomove thenatureofadministrativelaw

away from preventing misuses of powertowardsasituationinwhich policyclaimsarebroughtunderthe guise of law. Indeed, this was the very reason as to why in The Good LawProject,theGoodLawProject’s standing was rejected, whilst the RunymedeTrust’sstandingwasnot. Indeed,thisissueisexacerbatedby the fact that it disproportionately favoursthewealthy,whocanafford amultitudeoflawyersandtakeon 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 makeiselusive.Theyarecontrolled by a small elite in which individual memberscannotbeconsultedand therefore treating them as a monolith corrupts both the legal andpoliticalprocess.

As an addition to all of this, there exists the problem that often individualsmaynotwishtobringa claim at all. For direct victims who have sufficient interest, going through the entire court process may be detrimental to their wellbeinganditwouldthereforebe unjust to allow others to bring a claimwhenthosemostaffected

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 considerthem.

Nature of a tender

Atenderisgenerallyaninvitationtotreat [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 submittedbyacertaintime,withcertain information and to a certain email address.

Unilateral offer to consider conforming tenders

HedgerowLTD[H]sentanapplicationto CDC’s email address as per the instructions, which constitutes an offer. Thegeneralruleisthatoffersdonotneed tobeaccepted,however,theremaybean obligation on CDC to consider conforming bids [Blackpool and Fylde AeroClubvBlackpoolBC[1990]].

Thiswouldtaketheformofaprocedural contractinadditiontothemaincontract, whichconstitutedaunilateralcontractto considerH’sbid.LikeinBlackpool,sucha 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 noobligationtoacceptH’sbid,theremay beacollateralcontracttoconsiderH’sbid ifthebidconformed.

Communication of the bid

Therefore,thequestioniswhetherH’sbid 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 acceptanceoftheimpliedunilateraloffer 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 placeofbusiness[Entores].

In this case, the relevant destination Is CDC’sdedicatedemailaddress.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 thearrivaloftheemail.Itcanbededuced fromEntoresthatifCDCisatfaultforthe failureofthecommunication,theCDCis bound. In this case, it is unlikely a hackingattackcanbeattributedtoCDC. However, in an objective sense, the hackingisaninternalITissue,evidenced by the fact that the hacking what not madepublic.Indeed,H’semailarrivedat 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 theemailtobe‘loggedasreceived’.The prerogative to log the email is squarely withinthecontrolofCDC.Inaccordance 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 wasoutsidetheircontrol.

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 considerthebidwasbreached.

Theremedyinthiscasewilllikelybeona reliancemeasure,asitisnotcertainthat 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 measureforthepreparationoftheoffer. There can be no loss of chance as the chanceisnottobedeterminedbyathird party, and indeed, the chance was likely lowasHofferedless[Chaplin].Thecourt 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,CDCcanexpectasmallaward of damages for the breach of their unilateral collateral contract to consider theirtender.

(b)

Nature of B’s Post

Bushra’s[B]postonfacebookmaybean 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 isaclearpromisetoselltothefirstperson whoperforms[Carlill].Thisofferseemsto have that intention, by clearly stating [Willsell],andthestatementofcashonly 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, thispostislikelyaunilateraloffer.

Thisofferislikelysubjecttotheimplied 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,andinthiscase,theunilateral offerislikelysubjecttosuchanimplied term.

Cauisresponseat9am

Crespondswithanofferof90pounds. Thisisnotacceptanceoftheunilateral offer, as it constitutes a counteroffer [Hyde v Wrench]. While ordinarily, an acceptance by instant message is effectivewhenitarrives[Entores],here, thereisnoacceptance,merelyanoffer. Thus, there is no binding contract arisingfromthe9ammessage.

Cauisresponseatmidday

The second message at midday may constituteacceptanceoftheoffer.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 whenCarrivesatB’shousetopaythe money.Onanobjectiveconstructionof the offer [Storer], final performance is likelyonlycompletedwhenthemoney reaches the hand of B. This would suggest that, despite C’s message willing to pay 100 pounds, B’s revocationoftheofferwaseffectiveas it came before the acceptance of handingthemoneytoB[Henthorne].

However, in this case, while final acceptance likely occurred when the moneywashandedtoB,performance was a process, evidenced by C going to the bank to collect money. This processstartedat12whenCsentthe message. Therefore, while this messagemightnotbeacceptanceof 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 wassent[Daulia],asperformancewas 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.

Thisobligationisaseparateunilateral contract.Therefore,whilethefinalsale contract was never completed by handing over the money, the unilateral contract between C and B not to frustrate performance was breachedbyB’s12:30pmmessage.

Remedy

If C wants the desk, he can likely sue on this contract for specific performance,tocompelBtoenterthe main contract with him, as the ultimate sale contract was what the unilateralcontractwasworth,thedesk is a unique chattel and damages wouldbeinadequate[FalkeandGrey]. Further,thedeskhasnotbeensold.

SincetheycannotbethesourceofrightsanddutiesinEnglishlaw, neither treaties to which the UK is a party nor customary internationallawareusefulinEnglishCourts.’Discuss.

Introduction

The quote claims that (i) treaties and CIL can never be a source of English law,and(ii)thismakesneitherofthemusefulinEnglishCourts.InPart(I),I arguethatwhiletreatiescannotbeasourceofrightsanddutiesinEnglish 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 ofbeinga‘sourceofrightsandduties’ornot,treatiesandCILareusefulto Englishcourtsinsatisfyingandclarifyingtherightsanddutiesofindividual citizens and in promoting compliance with the UK’s international obligations.

Ffion Griffith Mark: 77.5 Muna Panyasong Mark: 74

(a) Treaties

With respect to treaties to which the UK isapartyto,whetherincorporatedornot, the starting point is that they are not a sourceofrightsanddutiesinEnglishlaw (ex parte Freedom and Justice Party (FJP)).Thishasbeenjustifiedonthebasis that the Crown, by unilateral exercise of its prerogative, cannot alter the law; and treaties are entered into by exercise of theprerogative(TinCouncilCase).Tothis 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 whatisconsequentlythesourceofrights anddutiesisnotthetreatyitself,butthe ActofParliament.However,Englishlaw’s approach to treaties is more nuanced. English courts may have regard to a legislatively unincorporated treaty where necessary to determine rights and obligationsunderEnglishlaw(Campaign for Nuclear Disarmament). In this context,thenecessary‘foothold’isusually observedwherealegalrightorobligation of the citizen is engaged, whether in public or private law (Shergill v Khaira). For instance, in OccidentalExploration& Production v Ecuador, the parties’ agreement to arbitrate, itself recognised inEnglishprivatelaw,wasrelieduponby the CA to consider the bilateral investment treaty in interpreting the scopeofthecontract.

Similarly, in ex parte Al-Jedda, the HL consideredwhethertheUNSCResolution 1546 qualified Art.5(1) of the ECHR through the operation of Art.103 of the UN Charter. This was possible because under the HRA 1998, the ECHR rights containedinSchedule1oftheHRAapply only to the extent that they are recognisedashavingeffectinrelationto the UK, which provided the necessary ‘foothold’ (Sales & Clement). It is then evident that even if treaties may influencetherightsanddutiesinEnglish law, they cannot by themselves be a source thereof without a domestic ‘foothold’.Itisonlywhenaprovisionofa statute(orthecommonlaw(exparteSG), sofarasit’sconsistentwithParliamentary Sovereignty (Al-Saadoon) is subject to ambiguity that ‘the treaty becomes relevant’(SalomonvCCE).Assuchtreaty 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 rightsanddutiesinEnglishlaw,however they may be a useful guideline for the developmentofthecommonlaw,aslong as their influence is in harmony with Parliamentary sovereignty and the legitimateexerciseofjudicialpowers.

(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 callforanylegislativechoicetobemade;

(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,CILcanbea‘source’ofrights anddutiesinEnglishlaw,althoughitwill 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 internationallaw,needtobefashionedto 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 asguideline,ratherthana‘directsource’, as it must first bypass the domestic constitutionalfilterandbeadaptedtothe needs and policies of domestic law. Yet, thebetterviewisthattheyareasource, in that there is no need for any kind of domestic‘foothold’toexistforthecourts todrawfromCILindevelopingrightsand duties.

Thus,whiletreatiescanneverbea‘direct’ sourceofrightsanddutiesinEnglishlaw. CILontheotherhandcouldbeasource.

(II) Assessment of utility

Inlightoftheaboveanalysis,Iargue,that albeittreatiescannotbeasourceofright anddutiesinEnglishlawandCILmustbe consistentwithEnglishlawtobeasource there, they both a useful function. With respect to treaties, they are useful to Englishcourtsinsatisfyingandclarifying the legal rights and obligations of citizens, as shown in the cases where a ‘domestic foothold’ was found. To this extent,itallowsEnglishcourtstocapture the notion of the individual as the primary subject of the law in that – so long as the subject matter directly concernstheindividual–Englishlawand 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. Thisisdonethroughthepresumptionof 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 relevantinternationallawonthebasisof the rule of law and on the CIL rule that provisions or insufficiencies of domestic law do not justify a breach of internationallaw(Art.27VCLT,Art.32ARS asinterpretedinObligationtoProsecute orExtradite).ThisallowsEnglishcourtsto 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 withinternationalobligations.

However, this is necessary limited by the fact that where ambiguity is not present, Parliamentarysovereigntyrequiresthatthecourtgiveseffecttolegislativeprovisions, 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 administrativediscretion,saiddiscretionisnot‘readdown’toaninterpretationthatit 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 utilisingtheinterpretativecanon.

Conclusion

Toconclude,IhavearguedthatwhiletreatiescannotbeasourceofEnglishlaw,CILis capableofbeingone.Further,IhaveestablishedthatbothtreatyandCILserveuseful functionstotheEnglishcourtsinclarifyingtherightsanddutiesofindividualcitizens and in promoting the UK’s compliance with international law, regardless of being a ‘sourceofrightsandduties’ornot.

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 byEllenforArmani.ClaudiaaskedEllenwhethershewouldhold 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 ArmaniandtosendthesharetransferformtoLambertLtd.Ellen failed to do so. In any case, Claudia had forgotten to sign the share transfer form. Claudia owned Traitors Cottage and wanted theCottagetobeheldontrustbyFreddieforDan.Shemetwith 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 paperworkwascompletedconfirmingthecreationofthetrust.

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 overhershareholdinginLLtdheldbyE asatrusteeandforAasthebeneficiary. As shares are personalty and C as the settlorisstillalive,shewouldnotneed to put her declaration of the trust in writing or follow any other formalities. An oral declaration of the trust is sufficient(PaulvConstance)sowhenC askedEtoholdthesharesontrustfor A,thedeclarationoftrustwasvalid.

Constitution

Foratrusttobevalid,itisnotenough simply to declare the trust, it is also necessary that the legal title to the asset has been vested in the trustee. Therefore,whatCneedstodoistovest the legal title of the shares in E. For company shares, C needs to execute thesharetransferform(StockTransfer Act 1963 s1). It seems that she has signedadocumentsayingthatshehad transferredhersharestoEbutdidnot signthesharetransferforms.

nMilroyvLord,thesettlordidnotuse thesharetransferformbutexecuteda voluntary deed instead and the trust was held not to be validly constituted asthesettlorhadnotdoneeverything 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 thatwasnecessarytovalidlyconstitute thetrust.Therefore,thelegaltitleinthe sharesshouldremainwithC.

However,Ehadsentthesharetransfer form to L Ltd recently and the shares wereregisteredinE’snamedespitethe 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 ofthesharesheldbyEforA.Itisnoted thatthetransferoftheshareswasonly effectivewhenE’snamewasregistered with the company (Rose v IRC), which was the point at which the trust was valid.

(ii)TraitorsCottage

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 whoisabletodeclaresuchtrust.There isadebateastowhetherthefunction of s 53(1)(b) is merely evidential or to make the trust valid. According to Virgo,withreferencetoRochefoucauld vBoustead,thefunctionofthewriting istoevidencethesettlor’sintentionto declarethetrust.

So,thedeclarationoftrustitselfneed notbeinwritingandthewritten evidenceneednotbe contemporaneouswiththedeclaration oftrust.Thisissupportedbymajorityof academicssuchasDouglasand Swadling.Nonetheless,itseemsthatno paperworkwascompletedtoconfirm C’screationofthetrustatall.

Constitution

Cappearedtohavevalidlyconstituted thetrustbecauseshecompletedthe papertotransferthefreeholdtitletoF andthecottagewasregisteredinF’s name.

Failuretocomplywiththewriting requirement

ChastransferredthecottagetoFto holdontrustforDbutCfailedto evidencethedeclarationoftrustin writing.AccordingtoVirgo,thereare fourpotentialsolutions:

(1)Fshouldholdthecottageon resultingtrustforC.Thisisbasedonthe viewthattheoriginalexpresstrusthad failedandanautomaticresultingtrust hasarisentorevertthebeneficial interestinthecottagebacktothe settlor,C.S53(2)appliessonowritingis requiredforresultingtrust.The advantageofthissolutionisthatsince Cisstillalive,Ccanterminatethetrust, recoverthepropertyanddeclare anothertrustforDandfollowthe correctformality.

(2)Fshouldholdthelandon constructivetrustforD.The constructivetrustisimposedbylawto preventunconscionabilityonthepartof F.So,F’sconductmustbe unconscionable.

Since C had explicitly told F that he would be a trustee of the cottage and not to have it absolutely, by insisting thatthecottagebelongedtohim,Fwas acting unconscionably. So, it was likely that a constructive trust would be imposedoverthecottageforD.Thiswas the case in Staden v Jones in which Arden LJ argued that Bannister aimed togiveeffecttoinformalagreementlike this one between the settlor and the trustee so the beneficiary of the constructive trust has to be the initially intended beneficiary. However, Eldridge arguedthatthepointofBannisterisnot 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 overthecottage,s53(2)wouldapplyand no writing is required for a constructive trust. The advantage of this approach is thatitrespectsC’sinitialintention.

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 trustapproach.ThisdependsonFbeing 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 trustforC.

4) F should hold the cottage on express trust for D. This follows the same reasoningasRochefoucauldvBoustead. There is a valid trust but it is not enforceable.ButequitywillnotpermitF 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 bypassingthestatute.

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

Onlyifitwasconcludedthattherewasa valid trust of the shares in favour of A andofthecottageinfavourofD,Aand D would have beneficial interests under the trusts. Since they wanted to assign theirequitableintereststotheother,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 inthisinstancesotheirswappingofthe 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 ofAandD,Cwouldnotbeabletodirect EandFastrusteestotransfertheshares andtheCottageabsolutelytoK.

If we followed approach (1) or (3) in (ii), the trust over the Cottage would be in favourofC.Inthatcase,Cwouldbeable 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 (VandervellvIRC).

Per Incuriam Michaelmas Edition 2025

ARTICLES FROM CAMBRIDGE STUDENTS

President’s

Foreword

editor’s welcome

Table of Contents

Introduction

ComparingConstitutionalResilience

Conclusion

Bibliography

The Prohibition Against the Threat or UseofForce

ThePrincipleofNon-Intervention

Bibliography

Legal Guardianship of a Child Monarch – a Critical Assessment Rory Shankar

Introduction

RegencyAct:anevaluation

Provision for Fathers

Conclusion

Bibliography

TRIPOS ESSAY

SELECTION GUIDLINES

CrimiNAL LAW

CoMPANY law

Paymentofshares

Maintenanceofcapital

Sharebuybacksandredemptions

Reductionofcapitalmethods

Themoderncontext

Reform

Conclusion

LEGAL HISTORY

Causesofecclesiasticalmonopoly

Civil Law in Context

ADMINISTRATIVE LAW

TheCaseAgainstStanding

TheSeparationofPowers

Efficiency

PreventionofTyranny

Conclusion

Contract Law

Communication of the bid

Remedy

(b)

Nature of B’s Post

Remedy

(a) Treaties

(b) Customary International Law (CIL)

(II) Assessment of utility

Equity

(i) Shares in Lambert Ltd

Formalities

Constitution

Failuretocomplywiththewriting requirement