English Law Research Articles

The Forgotten History of Bankruptcy, 1543–1624

ABSTRACT This article examines the foundations of bankruptcy law in England. Rather than looking at the bankruptcy statutes that were aimed at fraudulent insolvent debtors, it analyses debt settlements of honest insolvent debtors awarded by the court of Chancery between 1543 and 1628. It shows that these agreements were not only aimed at relieving creditors, but also financially rehabilitated debtors if they had become insolvent for reasons beyond their own control. Most debt settlements in the period were awarded following a bill of conformity procedure, in which a minority of creditors could be forced to agree to a settlement. Up to 1621 it was standard practice for debt settlements to include financial rehabilitation. The Chancery ordered delay of payment, part and full discharges of debts or alternative payment plans. Political struggles and fraudulent practices in the early 1620s ended this highly pragmatic practice, which was only to be restored centuries later.

Categorical confusions: gender and the colonial construction of the ‘Chinese Buddhist’ in Burma

British law in colonial Burma separated the legal personhood of imperial subjects by religious status. However, colonial law failed to clarify boundaries around religious categories. This lack of clarity was amplified when the court was forced to consider how to apply Buddhist law between different Buddhist communities, like the Chinese and Burmese. Owing to differences in how marriage, divorce, succession, and other rights are handled in Chinese- versus Burmese legal traditions, recognition as either Chinese or Burmese carried significant weight. Through a historical anthropology of Chinese-Burmese Buddhist family law in colonial Burma, this article argues that the British colonial judiciary’s failure to appreciate connections between Burmese and Chinese Buddhists produced novel legal segregations of mixed communities. Further, this categorical splitting was generated along gendered lines, where judicial acceptance of men’s claims of Chinese separateness disenfranchised native, mixed, and migrant women who sought to foreground their connections to Burma.

The governing law of contribution claims: looking beyond Roberts v SSAFA

The governing law of claims for contribution, where the applicable law of the underlying claim is a foreign law, has long posed a knotty problem in English private international law. The Supreme Court's decision in Roberts v Soldiers, Sailors, Airmen and Families Association considered this issue in the context of the common law choice of law rules. This article considers the decision in Roberts and claims for contribution falling within the scope of the Rome II Regulation, the Rome I Regulation as well as the Hague Trusts Convention. It is argued here that claims for contribution arising out of the same liability should be considered as “parasitic” on the underlying claim and should prima facie be governed by the applicable law of the underlying claim.

Forensic Law in Hypoglycaemia-3

“Environmental Enrichment” (EE) is a proven alternative therapy for Type 2 diabetes related complications. EE preserves the Purkinje cells in the brain. The latter is a promising therapy for prevention of diabetes related mental disorders. Sensory nerves are at higher risk of damage in the hyperglycemic milieu leading to diabetic neuropathy. Patients lose sensation in their lower extremities making them vulnerable to injury because they do not feel the pain, which is a warning sign of tissue damage. That can lead to catastrophic outcomes because with high blood glucose, wounds get difficult to heal. Gas gangrene and tissue necrosis develop, leading to the only resort being amputation and life change challenge. Early diagnosis of diabetes is nevertheless crucial in prolonging the onset of diabetes and its complication. To date many candidate early biomolecules have been reported which are promising early indicators for diabetes. However, advancement in this field of research has not been reported. Holistically diet, lifestyle, mental health and clinical treatment of Diabetes and Thyroid Disease, including Addison’s Disease, plays an important role in patient welfare. Tragically many patients die young or go through life suffering from the old Victorian Stigma of being tainted by having to treat an uncurable illness. This is not a joke as suggested in September 2006 in ignorance by a Hertfordshire Insurance Broker describing Diabetes with Neuroglycopenia as a Joke and Nonsense. This caused Obstructed Justice in Law of a critical life-threatening complication of Diabetes and Endocrinology Disease in Hypoglycaemia Unawareness and now in 2023 Otitis Externa and Osteomyelitis as disclosed in a tragic young law student death with likely clinically undiagnosed Otitis Externa and Osteomyelitis. A patient requiring clinician prescribed Insulin justifies clinical respect and understanding in English Law which has been misunderstood since 1994 with sad consequences in this investigation. Today in recovering and managing the COVID-19 Pandemic of 2020 we move forward with new welfare ideas. It is a delight to be able to share some latest work for future research based on 44 years T1 Diabetes experience complimented by Purkinje Cell environmental welfare.

Change of position as defence to unjust enrichment claims: Stories from Hong Kong

The recent decision of the Hong Kong High Court (the ‘HKHC’) in Credit One Finance Limited v Yeung Kwok Chi & Others is worthy of the attention of the common law world. The HKHC followed a ‘but for’ test developed by English courts and established that reliance on receipt of enrichment is not a necessary ingredient of the change of position defence. This case not only marks itself the first Hong Kong case discussing the role of reliance in the change of position defence but also offers a comparative study of the laws of unjust enrichment in the common law world. As observed by this note, this case also reflects an underlying divergence between, on the one hand, English and Hong Kong laws of unjust enrichment and, on the other hand, the law of unjust enrichment in Australia in terms of the change of position defence. In addition to the clarification of the legal position, this case comes with practical implications for innocent defendants in receipt of benefits and serves as an important reminder to financial institutions on the importance of anti-money laundering and fraud investigations.

THE INCOMPATIBILITY OF THE DEFENCE OF PROVOCATION AND ALIBI: A CASE REVIEW OF THE STATE V. OGUNBOYO RICHARD (UNREPORTED) CHARGE NO HAD/80C/2017

Provocation and alibi are two of the defences available to a defendant under the English Law albeit they operate at a cross road in that the availability of one depicts the non legal availability of the other to a defendant facing allegation of crime. By its intrinsic nature, a defendant who relies on the defence of provocation has explicitly admitted both the mens rea and actus reus of the offence alleged but denied malice aforethought. In contradistinction however, alibi is an outright defence of non-participation in the offence on the ground that the defendant was elsewhere when the offence took place. The jurisprudential rational behind the defence of alibi is the impossibility of simultaneous physical presence of the defendant at two different locations. It is noteworthy to stress that the defence of alibi enjoys qualified application while considering parties to offences as a defendant need not be physically present to be culpable where he has either acted as accessory before the fact or accessory after the fact in which case, his physical presence at the scene of the alleged offence is of no moment before attracting criminal responsibility. This study examined the two irreconcilable defences of provocation and alibi through a case review with intent to unveiling whether or not a defendant can be availed of the defence of provocation in the same case where the defence of alibi earlier set up by him fails. This study however, concluded that both alibi and provocation cannot exonerate or sustain defences for the defendant at the same time because they are contrasting defences that cannot go together. The study also concluded that in applying the ingredients of the defence to the fact in issues, none of the ingredient must be left in isolation or wrongly applied to justify a defence for the defendant.

기명식 선하증권과 해상화물운송장의 기능적 차이에 관한 연구 -영미법 및 우리나라법과의 비교를 중심으로-

기명식 선하증권과 해상화물운송장의 기능적 차이에 관한 연구 -영미법 및 우리나라법과의 비교를 중심으로-

Violence, Misrecognition, and Place: Legal Envelopment and Colonial Governmentality in the Upper Skeena River, British Columbia, 1888.

This paper is concerned with exploring legal atmospheres during colonial expansionism and the early period of confederation of British Columbia. By describing the theatrical and performative aspects of legal colonialism, the archival documents from this time represent interesting, yet oft-overlooked, significances that attention to sensory and affective experiences captures. Examining "affective atmospheres" disclosed in such colonial settings reveals ways that the colonial regime promulgated its influence in non-rational, non-legal manners. As well, drawing out the material conditions of topography shows how the environment acts more than just a backdrop for the staging of legal expansionism, as it acts also as a constitutive force in the development of colonial legal arrangements. At the same time, the colonial regime was forgetful of these same contextual, topographical, and atmospheric origins of law insofar as it promulgated myths of the universality, objectivity, and superiority of English law.

The Two Forms of Legal Time: Pierre Legendre’s “La Durée Poignardée”: Remarques sur la Structure et le Temps

AbstractIn his Leçons VII (Le désir politique de dieu) Pierre Legendre applies the idea or expression of ‘instituting time’ (‘instituer le temps’), that is, working with time as a malleable material, but at the same time conceptualising time as dogmatic time, especially in the interpretation of law. As an example of this concept he refers to the English Common Law, a ‘style’ of ‘governing by solving cases’. This text will analyse the notion of two times of law—inaugural/mythological and historical—and how it applies to Common Law judgments, as well as to Institutional Writers that are characteristic of Scots Law in particular.

The Key Problems Facing Civil Justice Today Are Cost, Delay & Complexity: A Critical Review

Our judicial structure owes to the colonial administration for its evolution & is still bearing the remnants of the system it inherited from its predecessor. Our judiciary is still following the adversarial trial system. Though the British legal system has developed to a standard for others we are still on the same footing where they left us. We could not overcome the obstacles associated with the civil justice system. The main problems facing our judiciary are the cost, delay & complexity. Several steps have been taken to solve the problems but deserved success cannot be achieved. The main problem lies probably in the identification of the real problems & providing pragmatic solutions. In this research I have tried to identify the real problems by interviewing different legal persons & litigants, by analyzing the opinions of different scholars & taking into account the attitude of the society towards the civil litigation social aspects & applying my own reason & experience. I have evaluated the reforms made in some foreign legal systems to compare with our system specially the Woolf’s reform in England. Lastly, I have provided some reform & amendment proposals based on the findings.

Resistance, rape, recognition, and aggression

During the 18th and 19th centuries, the common law of England solidified a masculine ideal of feminine resistance that required women to resist if they were to be recognized as victims of rape. This essay seeks to understand this conception of resistance that is racialized, largely violent, normative, and patriarchal. It also attempts to explain why this conception of resistance would be adopted as a condition for proving a criminal act. The second half of the essay argues that this patriarchal conception of resistance plays an important role in Michael Walzer's account of international recognition and aggression. The sorts of pressures that may explain the inclusion of a patriarchal resistance in the law of rape may also be in play in the case of these international norms. Resistance has an underbelly which calls for our vigilance even as the term is employed in the arduous struggle for freedom.

Finding Facts in Medieval English Law

Abstract Accounts of the post-Lateran IV period tend to emphasize the different procedural paths taken by English courts, which adopted jury trial for felony cases, and continental European courts, which turned toward inquisitorial methods and a greater reliance on confession. This article argues that the fact-finding strategies of the two systems had more in common than may appear at first glance due, in part, to a shared cultural reservoir exemplified by the strategy of circumstantial inquiry employed by confessors. Rather than focusing on the point of greatest difference, the trial jury, this article examines pre-trial investigative processes to emphasize shared jurisprudential priorities.

Donatio mortis causa: the gift that keeps on giving

Abstract Applying the doctrine of donatio mortis causa is relevant yet risky. This article takes a deep dive into the risks associated with deathbed gifts and the reasons for their continued relevance in English and Welsh law.

The Myth of Transnational Public Policy in International Arbitration

Abstract This Article traces the concept of transnational public policy as developed in the context of international arbitration at the intersection between legal theory and practice. The emergence of such a transnational public policy, it is claimed, would enable arbitrators to safeguard and ultimately to define the public interests that need to be protected in a globalized economy, irrespective of national laws. A historical contextualization of efforts to empower merchants and their practices in Germany and the United States in the nineteenth and early twentieth centuries highlights their reliance on the mythical lex mercatoria that shaped English commercial law. Further contextualization is offered by the postwar invocation of “general principles of law recognized by civilized nations,” to keep at bay the application of supposedly less civilized, parochial legal orders, and by the consequent emergence of the “new” lex mercatoria as conceptualized especially in France. These developments paved the way, on the theory side, for later conceptualizations of self-constitutionalizing law beyond the state, especially by Gunther Teubner, and, on the practice side, for the notion of transnational public policy developed by arbitrators, especially by Emmanuel Gaillard, culminating in jurisprudential claims of an autonomous arbitral legal order with a regulatory dimension. In all these constructions, the recourse to comparative law has been a crucial element. Against this rough intellectual history, the Article offers a critique of today’s construction of transnational public policy by probing into its constitutional dimension and the respective roles of private and public interests. This allows, in particular, to draw on parallels to historic U.S. constitutional debates on the allocation of regulatory powers in federalism.

Beyond enclosures? Highly protected marine areas in English marine conservation law and policy

This paper focuses on a new addition to the English protected seascape: Highly Protected Marine Areas (HPMAs). HPMAs hold an important value for meeting pressing conservation targets and for studying the interaction between biodiversity conservation and climate change. By prohibiting extractive, destructive and depositional uses, they are test sites for understanding the resilience of marine ecosystems. However, HPMAs are not neutral tools but are highly political, as they limit sea-users’ access to marine resources. Being strict reserves, they can be contested and perceived as enclosures. The way in which HPMAs are framed in law and policy has important implications for the effectiveness and social acceptability of these sites. This paper, employing the analytical categories of new commons and commoning, explores the way in which English law and policy are framing HPMAs asking whether they are contributing to a perception of HPMAs as enclosures.

Abortion law in England and Wales

Abortion law in England and Wales

Musculoskeletal complaints in English law enforcement officers: a cross-sectional study

Objectives. Musculoskeletal (MSK) complaints are prevalent in law enforcement officers (LEOs), but research that examines their risk factors is limited. This study aimed to identify the self-reported MSK complaint prevalence and perceived causes in LEOs. Methods. The Nordic musculoskeletal questionnaire was used to identify the 12-month and 7-day prevalence of MSK ‘trouble’ (ache, pain, discomfort) for nine body sites. The perceived cause, participant characteristics and occupational role were reported. Body fat percentage was measured using bioelectrical impedance. Results. Complete submissions of 186 questionnaires were received (80% male, median age 40.6 years, interquartile range 10.1). Eighty-six per cent of officers reported having an MSK complaint in the last 12 months, where lower back, shoulder and neck complaint prevalence was 59.1, 48.4 and 42.5%, respectively. The occupational role was associated with the site and presence of complaints (p < 0.05), where armed officers presented with more shoulder, lower back and hip/thigh complaints. Age, sex and body fat did not impact complaint prevalence. Participants mainly attributed their complaints to occupation equipment or to sport and exercise. Conclusion. MSK complaints were highly prevalent in this cohort, particularly armed officers. Further research is required to establish the impact of these complaints and how they can be mitigated.

Limping Marriages: Race, Class, and the Rise of Domicile-Based Divorce Jurisdiction in the British Empire

Abstract In this article, I trace the development of domicile as the basis of divorce jurisdiction in English private international law. The maintenance of English domicile became closely related to the retention of ‘white’ identity, with white British subjects who became domiciled in non-white colonies such as India being relegated to racially ambiguous statuses. The domicile rule limited the remedy of divorce to those who were financially well-off and able to travel to the courts of the metropole since English courts refused to recognize divorce decrees granted by British Indian courts based on residence. As a result, innumerable British subjects who obtained a divorce in India remained married in Britain, i.e. were stuck in so-called ‘limping marriages’. To remedy this situation, a separate divorce regime was enacted for British subjects residing in India but domiciled in England and Scotland, but it replicated the class barriers of the original domicile rule. Law, therefore, played a significant role in the creation of the mutually constitutive but unstable categories of class and race.

‘Much Ado About … The Law of the Arbitration Agreement: Who Wants to Know and for What Legitimate Purpose?’

Common law cases and commentators have debated whether the law of an autonomous arbitration agreement should be the same as the law designated in a general choice of law clause or should instead, be that of the law of the Seat. The English Law Commission is currently considering this question. This article argues that when common law courts deal with this issue within mere preliminary applications, such as for a stay of litigation, they apply an inappropriate methodology, regardless of the conclusions they come to. They are wrongly trying to impose certainty when simply faced with unclear drafting, an impossible task. In addition, most of the cases that have opined as to the law of the arbitration agreement need not have done so. The cases should have been resolved more simply under different reasoning. The article then argues that, even if the law of the arbitration agreement is important, the proper question for mere preliminary courts should often simply be, could a reasonable tribunal find validity and sufficient scope under a law it may select under the choice of law and evidentiary discretions it has? If so, the right of a putative tribunal to consider the question fully should be supported. This would then leave it to annulment or enforcement courts to review those findings if asked to do so. Even courts empowered to make pre-emptive rulings on validity and scope cannot properly do so under the methodology outlined in the leading cases. At least where contested facts could be material, such courts should not decide on these questions without an adequate hearing and without deciding either way on a case by case basis as to the particular parties’ intent. Arbitration agreement, applicable law, preliminary courts, validity and scope challenges

A Comparative Legal, Economic and Structural Analysis of Challenging Shareholders’ Resolutions Under Turkish and English Legal Systems

English law system and Turkish law systems have different approaches to protection of shareholders and challenging shareholder resolutions. These differences have important historical, economic background reasons and also economic and legal outcomes. In order to understand reasons for these differences an economic as well as a legal and cultural analysis should be conducted. Difference in the corporate ownership structures of these legal systems is the primary underlying reason; effective ex ante contractual minority protection mechanisms under English legal system is the second reason, and finally differences in legal nature of shareholder rights under these law systems is the third reason for the different approaches of these legal systems towards challenging shareholder resolutions. It is also important to analyze the legal and economic efficiency of the two legal systems in terms of challenging shareholders resolutions. Considering applicable legal institutions regarding challenging shareholders resolutions, it is possible to say that the English legal system is economically more efficient however due to the uncertainties and complexities involved, the English legal system can be characterized as legally less efficient.