The 18th century is often treated by scholars as a period of juristic consensus. This article argues, in contrast, that the late 18th century saw the emergence of rival 'Patriot' and 'Tory' legal traditions. Through a detailed study of the jurisprudence of Lords Camden and Mansfield-who were both pillars of the law, as well as political and juristic rivals-we show that they differed systematically in their understanding of the common law, and that those differences had a partisan cast: although they were not crude attempts to instrumentalise law to political ends, their political and jurisprudential commitments influenced each other and emerged from the same intellectual roots. We place these differences in the context of the fragmentation of 18th-century Whig politics, and argue that they have important implications for how we understand and make use of the common law tradition in present-day scholarship.

Abstract This chapter explores the role of insurance concerns within tort reasoning. It argues for moving away from the view of insurance as loss-spreading, and suggests instead that insurance should be seen in the light of the role it plays in facilitating cooperative relationships. Insurance deals with risk by removing it from the transaction and transferring responsibility for it to a third party. Focusing on ideas of responsibility without considering the context of insurance therefore runs the risk of disrupting voluntary arrangements and unsettling the parties’ allocation of risks. Seen in this light, insurance is an essential market mechanism which is closely connected to tort law, and which ought to be part of the broader contextual picture brought to bear when analysing tort law.

This chapter puts the philosophical debate on commodification in the context of the legal concept of commodities. In law, commodification is intrinsically connected with contractualisation, through which contract acquires a central role in structuring social relations. This link between contractualisation and commodification has two consequences. Firstly, it gives its objects a legal value, turning them into objects capable of being traded through market transactions and placing the focus on their commodity-value rather than social perceptions of their intrinsic worth. Secondly, in a commodified conception of contracts, the standing of people in their relations with each other is understood in terms of the characteristics of the contractual transactions linking them—their conformity with the parties’ agreement, their fitness for the purposes to which they are applied, etc. This excludes values and evaluative positions other than the contractual values of autonomy and self-ordering. Through an analysis of the impact of patent law on areas ranging from the patenting of isolated genes to access to medicines, we show that commodification affects more domains and has deeper effects than generally assumed. Commodification directs the legal system’s focus towards facilitating the creation of contractual frameworks of self-ordering, and towards insulating law from the broader dimensions of the value of human life, well-being, and different forms of human striving. We argue that the study of commodification must evolve beyond focusing on the limits of markets, and must also focus on the limits of contracts—which are generally modelled on an exchange framework as a way of conceiving relations and on private frameworks of regulation—their aetiology, and on devising ways of ameliorating such limitations.

<italic>Contract Law</italic> provides a uniquely practical approach to the topic; enriched with scenarios to support deep understanding of legal principles, analysis, and critique. The text is divided into four parts. Part I covers forming contracts. It looks at bargaining and agreeing, and the requirements of mutuality, legal relations, and non-contractual promises. Part II considers issues related to keeping contracts. It examines the assembling of the contract, interpreting the terms of a contract, flexible terms, and changes in contracts. The next part is about regulating contracts. It looks at untrue statements, the limits of hard bargaining, controlling contractual terms, and protecting the public interest. The final part is about enforcing contracts. The text here examines issues relating to breach of contract, compensatory remedies, non-compensatory remedies, and third party matters.

This paper argues that constitutional theories, despite their claim to merely be advancing arguments about how a particular constitution ought to be understood, are beneath the surface profoundly and inextricably concerned with facts. We draw on the literature on social epistemology to show that the process of constructing any theory of a specific constitution involves two distinct forms of engagement with facts: firstly, identifying facts that have constitutional salience and, secondly, assigning significance to those selected facts. There are strong parallels between these processes and those implicated in the construction and transmission of traditions, an analysis of which sheds new and useful light on how constitutional theories construct the constitutional world they describe. Using Mary Douglas's grid-group cultural theory, we show that there are four broad families of approaches to selecting and assigning normative significance to facts into which most constitutional theories can be classified. Each of these families is united by its propensity for highlighting certain types of features, and its predilection to read certain types of normative significance into constitutional facts. while these families have value, the failure to understand the limitations they impose on constitutional theory has led to constitutional debates becoming entrenched, polarised, and unyielding. We propose a new approach to constitutional theorisation and constitutional method which takes a heuristic approach, relating constitutional facts to the shifting needs of the polity, and opening up a more pragmatic space for theoretical debate and doctrine-making in constitutional scholarship.

With recent advancements in systems engineering and artificial intelligence, autonomous agents are increasingly being called upon to execute tasks that have normative relevance. These are tasks that directly-and potentially adversely-affect human well-being and demand of the agent a degree of normative-sensitivity and -compliance. Such norms and normative principles are typically of a social, legal, ethical, empathetic, or cultural ('SLEEC') nature. Whereas norms of this type are often framed in the abstract, or as high-level principles, addressing normative concerns in concrete applications of autonomous agents requires the refinement of normative principles into explicitly formulated practical rules. This paper develops a process for deriving specification rules from a set of high-level norms, thereby bridging the gap between normative principles and operational practice. This enables autonomous agents to select and execute the most normatively favourable action in the intended context premised on a range of underlying relevant normative principles. In the translation and reduction of normative principles to SLEEC rules, we present an iterative process that uncovers normative principles, addresses SLEEC concerns, identifies and resolves SLEEC conflicts, and generates both preliminary and complex normatively-relevant rules, thereby guiding the development of autonomous agents and better positioning them as normatively SLEEC-sensitive or SLEEC-compliant.

Contract Law provides a uniquely practical approach to the topic; enriched with scenarios to support deep understanding of legal principles, analysis, and critique. The text is divided into four parts. Part I covers forming contracts. It looks at bargaining and agreeing, and the requirements of mutuality, legal relations, and non-contractual promises. Part II considers issues related to keeping contracts. It examines the assembling of the contract, interpreting the terms of a contract, flexible terms, and changes in contracts. The next part is about regulating contracts. It looks at untrue statements, the limits of hard bargaining, controlling contractual terms, and protecting the public interest. The final part is about enforcing contracts. The text here examines issues relating to breach of contract, compensatory remedies, non-compensatory remedies, and third party matters.

The legal approach to regulating data-driven personalisation has relied heavily on extending and reusing legal categories and concepts – in particular, the idea of privacy of personal information and the legitimating role of consent in permitting the use of personal information – that were originally devised to deal with a very different problem. This chapter argues that this approach is fundamentally flawed for two reasons. Firstly, data-driven personalisation – unlike the traditional core of privacy – is deeply enmeshed in contractual relationships, and both the gathering and the use of data are mediated by contractual terms. As this chapter shows, the result is that 'privacy' and 'consent' do not provide an adequate evaluative framework to model or mitigate the deleterious impact of data-driven personalisation on individuals. Secondly, consent derives its normative force from the presumption that it is necessarily autonomy-enhancing. As this chapter shows, however, data-driven personalisation has a strong derelationalising effect which erodes rather than enhances the data subject's autonomy, calling into question the assumptions underpinning privacy-based approaches. The chapter concludes by arguing that dealing with these problems requires adopting a new, more substantive approach, which works to explicitly restrict the processes, structures, and purposes through which and for which personalisation is used.

Although financial inclusion as a policy objective has multiple dimensions, the focus of the debate on financial inclusion for SMEs has largely been on the issue of enhancing SME access to finance. This article argues that more attention needs to be paid to the issue of reshaping lender practices to make the delivery of finance to SMEs more responsible and sustainable. The terms of SME financing agreements offer considerable scope for lenders to engage in opportunistic or predatory behaviour and, as this article shows, there is evidence to suggest both that this is a problem, and that it causes material financial distress to SMEs and beyond. Against that background, this article argues that the law needs to take a less neutral approach that is more favourable to relational lending practices. It suggests a range of techniques, grounded in the established models of negotiated economies and corporate pluralism, which can help achieve this end. Although the challenge of fostering responsible and sustainable lending practices is not a simple one, it is one that can be met with the right combination of approaches.

There has been little dialogue or contact between the literatures on administrative justice and judicial review. This chapter argues that the two share common concerns and would benefit from closer engagement. Using a scheme based on Mary Douglas’s grid-group cultural theory, it suggests that judicial review can and does discharge a variety of tasks that are fundamentally concerned with administrative justice. A closer focus on these tasks, and on the contribution they make to infusing justice into the functioning of administrative government, has the potential to productively reframe the concerns of judicial review scholarship and overcome the current ‘clash of styles’ that currently characterises theoretical work in public law.

Over time, medical law has moved away from paternalism in favour of an approach grounded in patients' rights. Using Montgomery v Lanarkshire Health Board (2015) as a case study, we offer a deeper analysis of this emerging approach. We argue that patients' rights should be evaluated in terms of their contribution to making medical law more socially responsive, by developing it to give effect to social needs and aspirations pertaining to health care. Although rights can play an important role in achieving social responsiveness, they also carry the risk of entrenching approaches unrepresentative of patients' actual needs and empirical realities. This is evident in Montgomery, where the law, despite being derived from General Medical Council (GMC) guidance, has effects that differ significantly from the GMC's goals. Drawing on socio-legal literature, we outline a new approach for guiding the use of rights in medical law focused on the functional consequences of rights in facilitating patients' aspirations, and the capacity of rights to respond to social and institutional contexts in which medical interaction occurs. We conclude by showing how this approach, applied to informed consent, would produce a different and arguably a superior duty, providing a sounder basis for responding to patient needs.