Abstract Precedent played an important role in theoretically one-off equitable interventions becoming regular, and equity becoming more law-like. However, the available sources limit our ability to understand the role of precedent in the Chancery in the key formative decades around 1600. This article uses the court of Star Chamber as a proxy for the other equity courts. It shows a much more significant use of precedent than has previously been understood, and that the practice of precedent in the court was similar to that in the common law courts. Equity was becoming more like the common law in the early-17th century.
Abstract Democracy is invoked so frequently in UK law, there is a risk that it has no legal meaning. Responding to this risk, this article has three aims. The first is to descriptively establish some of the legal content of democracy in the UK. The second is to argue that the legal content of democracy amounts to a constitutional principle. This means that democracy shapes the scope of the legal powers of the executive, courts and even Parliament. The third, normative part of the article argues that there is a tension in the construction of the UK’s constitutional principle of democracy. Currently, courts have been clear that the right to vote is a product of statute rather than common law principle. This approach to voting, this article argues, cannot be reconciled with the rest of the UK’s constitutional principle of democracy.
Abstract Objective ‘reasonableness’ tests are a common element of both offences and defences in criminal law. When applying these tests to defendants with mental disorders, however, courts and commentators encounter a conceptual block; since the ‘reasonable person’ is not (for example) delusional, depressed or hypervigilant, any defendant who is becomes unreasonable by definition. The consequence of this is that defendants with mental disorder may find themselves excluded from the application of objective culpability tests, forcing them instead to rely on the limited protection offered by special mental condition defences such as insanity. In this article, I therefore propose a guiding heuristic for the reformulation of objective tests in terms of ‘reasonable expectations’, through which objective standards can be made sensitive to the relevance of a defendant’s mental condition to their culpability. This would significantly expand the options available to us in assessing the culpability of defendants with mental disorder.
This article reappraises remoteness of damage in negligence. It argues that, for initial harm, the scope-of-risk (SOR) framework provides a superior analytical tool than the foreseeability test. By tying liability to the risks that make conduct negligent, SOR explains features that foreseeability cannot, including the type of harm, the manner of its infliction, and the irrelevance of foreseeability as to extent. The doctrine's role also depends on the structure of breach: where breach is assessed against any risk of harm, SOR operates as a distinct inquiry; where breach is assessed against a specific risk, SOR collapses into the breach inquiry itself. The article also examines further harm: the eggshell skull rule avowedly lies beyond both SOR and foreseeability, resting instead on a directness test; as to consequential harm, while foreseeability is treated as the orthodox test, it does not provide a satisfactory framework, indicating the need for substantial doctrinal rethinking.
This article seeks to theorise and enhance the legitimacy of transnational rule makers which appeal to 'science-based' methods, focusing on the Science Based Targets initiative (SBTi). It asks whether, and if so how, SBTi's legitimacy and accountability should be enhanced, considering its role in global climate governance, its status as a private charitable organisation and its appeal to 'science-based' methods. This article develops a theoretical framework built around the nexus of transnational regulators' 'goal setting' and 'normalisation' activities, drawing inspiration from scholarship on transnational environmental regulation, global and domestic administrative law, and science and technology studies. It applies these theoretical insights to SBTi's processes and outputs, with a specific focus on SBTi's proposed incorporation of distributional considerations of equity and climate justice in its ongoing amendments to its Corporate Net-Zero Standard. Flowing from these, the article makes three specific recommendations for SBTi.
