In dealing with rules of a procedural type lawyers often make a distinction which is referred to as that between ‘mandatory’, and ‘directory’ rules. (The terms ‘imperative’, ‘absolute’, ‘obligatory’, ‘compulsory’, and ‘peremptory’, have sometimes been used instead of ‘mandatory’.) The distinction has to do with the effect of breach of a rule on the process to which it relates. Very broadly, mandatory rules are those procedural rules the breach of which necessarily invalidates the process to which they relate, while directory rules are procedural rules the breach of which does not necessarily have this effect. This distinction has existed in the common law for about three hundred years, yet, so far as I can discover, no serious attempt has ever been made to explore its logical basis. That is surprising, for on its face the distinction is a puzzling one.

At one of the first meetings of the Society of Public Teachers of Law that I attended a senior member declared that too much law reform was going on and that he proposed to form a law conservation group. That sentiment would now be widely shared by practitioners and perhaps even by some members of this Society, re-writing their lecture notes for the umpteenth time. Yet, by the nature of our job, most of us are continually looking at ways in which the law might be reformed. A university teacher cannot discuss any legal institution or rule of law without considering with his students whether it works fairly and efficiently and, this often leads naturally to a consideration of how it might be improved. At the very least we must send our students away with some ideas on law reform. Many of us are not content to stop there but seek to reach a wider, or more immediately influential, audience. In this paper I propose to discuss some personal views and experiences, more or less related to the subject.

Law is a social institution. Indeed, it is more: it is one of Man's better inventions in that it has made co-existence possible between large numbers of people and has enabled them to achieve within a framework of control and co-ordination more than individuals could achieve on their own. Law is not by any means the only mode of social regulation, nor may it even be thought paramount; but it is important and pervasive and, as such, deserves to be respected by every society. If a society falters in respect of its law, that could be heralding its undoing. Is that an extravagant statement? Let us see what has been taking place of late in the industrial sphere, which is vital enough to national existence.

‘The existence of law is one thing; its merit or demerit another. Of all the sayings of John Austin, none seems to make a simpler appeal to the plain fact of the matter than that one. We can argue for days about the merits or demerits of the Income Tax Acts or the latest effusion of trade union legislation. That such enactments are however laws is not a subject for lengthy nor inconclusive debates.

As to income tax, some may agree with Robert Nozick. They may think that state-imposed taxes on income are equivalent to slavery. The individual who is forced to pay two fifths of his earned income in tax is working as a slave two days in every week, for the fruits of his labours on those days are compulsorily exacted from him and paid over to other people in cash or in kind.

In his book Courts on Trial Jerome Frank suggests that we might turn our attention, when studying law, to the trial rather than the appellate courts. It is what goes on there that should inform us when talking of justice. Frank was worried over the unsatisfactory state of fact gathering in these courts and the book is not just a critique of what happens but also suggests many reforms. In this paper I am going to be concerned with his slashing attack on adversarial methods of trial in a chapter in the book revealingly entitled ‘The Fight Theory vs the Truth Theory’.

The joinder by the prosecution of two or more co-accused in the same indictment is of common occurrence in criminal trials. Where offences they have committed are linked one to another or are a product of joint concert, it makes both economic and practical sense to try the defendants jointly. In those cases where joint trial would cause serious injustice to one or more of the parties, the judge may order separate trials. However, severance of indictments in such cases is governed by rules which, perhaps uncharacteristically, would seem to favour the prosecution rather than the defence and defence applications for separate trials are seldom successful. The initiative, therefore, lies principally with the prosecution when it comes to deciding whether or not defendants will be tried jointly. In addition, it should be added that it is the prosecution which decides in which order co-defendants' names appear in the indictment. Although at first sight this may appear a purely routine matter, this decision, too, can have important repercussions on the course of the trial for, although the trial judge retains a residual discretion to order matters in his court as he thinks proper, Halsbury informs us that:- ‘If there are more defendants than one, they address the jury, cross-examine witnesses and give evidence in the order in which their names appear on the indictment’.

‘The House of Lords has a dismal record in criminal cases. All too often their lordships’ decisions have to be reversed by legislation…the present decision could well be another'.

In two recent criminal appeals of major importance on the meaning of mens rea, Caldwell and Lawrence, the House of Lords has departed so far from the academically accepted deffition of ‘recklessness’, that Professor Smith is driven to ask, ‘Can we really afford the House of Lords as an appellate criminal court?’. Such desperation surely indicates that their Lordships have got things badly wrong and it is our purpose in this article to examine whether this is indeed the case.

This paper is divided into two sections. In the first section I examine the central role played by the concept of ‘legal validity’ in positivist theories of law. I suggest that this concept is capable of varying interpretations, of which some are wholly inapplicable to case law, while others are inappropriate, suggesting a misleading model of case law reasoning.

In the second section, I examine Hart's account of legal validity and the rule of recognition. I suggest that Hart's theory is inadequate because it fails to perceive the special nature of binding practices. I argue that the notion of a binding practice provides the most fruitful basis for an understanding of the common law, and explains the status of case law independently of Hart's account in terms of ‘legal validity’ and the rule of recognition.

It is the purpose of this lecture to suggest that ignorance of the law is a serious social problem in this country and to consider ways in which this problem might be cured or, at least, alleviated. It is proper to start however with a disclaimer. The first half of this lecture will contain many examples of ignorance of the law and might give the impression that I am concerned to attack the ignorant. This is not so. Though some of the examples of ignorance may well be culpable, my predominant concern is with defective institutional arrangements which are the primary source of the ignorance.

It is commonplace in the commercial world for contractual obligations to be performed by persons other than the original parties to the contract. Because of the doctrine of privity of contract persons who are not party to a contract generally cannot take advantage of terms contained in it. If, therefore, a person undertakhg the performance of obligations which someone else has originally assumed misperforms those tasks so as to incur legal liability towards the other original contracting party, it would seem that he cannot rely on a protecting clause in the contract even though that clause may purport to afford him cover. A variety of avenues of escape from this situation (which is often commerically inconvenient) have been at various times advocated: the doctrine of vicarious immunity and the trust idea have been explored and eventually rejected. Other methods of avoidance retain more vigour: we have probably not heard the last of arguments based on the doctrines of volenti non fit injuria and disclaimer, of the bailment on terms and of the idea of spelling out a separate contract (or offer) between the party now suing and the third party.

When the United Kingdom joined the European Economic Community in 1973, the English bench and bar must have perceived only dimly the challenges before them. Like contemporary descendants of Noah, they dropped into a Babel of languages and legal terms indispensable to the operation of the European Commission and the Court of Justice. Membership in the European Economic Community entailed the substantive harmonisation of English laws with those of other member states, and England's common law tradition could not have made the process easy. But the scope of the harmonisation task reached beyond substantive law to deeply rooted judicial attitudes toward the role of legislation and techniques of interpretation. In a recent editorial, Dr C. D. Ehlermann, Director of Legal Services for the European Commission, offered reasons for the English judiciary's potential resistance towards harmonisation of interpretative techniques.

May a worker bring a common law action against an employer who refuses him employment on racial grounds? The established view is that the answer is an emphatic ‘no’. The clearest enunciation of this view has been made by Hepple who explains the alleged absence of a common law remedy for discrimination in employment on both ‘doctrinal’ and ‘practical’ grounds. This article examines these doctrinal and practical underpinnings of the established view and suggests that they may not be as secure as is commonly believed. It is suggested that, while the weight of academic opinion denies the availability of a common law action based on a tort of discrimination, there may be theoretical and empirical grounds for the alternative view that, in appropriate circumstances, a plaintiff might successfully raise in an English court a common law action for racial discrimination in hiring. This is of particular importance in view of the weaknesses of the statutory remedies documented by Lustgarten.

It is well known that the United States of America has had a mechanism designed to secure the compulsory recognition of trade unions by law since the mid-thirties. Such procedure is part of the bedrock of American labour law. In Great Britain, however, no attempt at compulsion was made until 1971, when the Industrial Relations Act was passed. This Act was repealed three years later, although the operation of the recognition provisions hardly contributed to the factors leading to repeal. Another attempt at compulsion was made by the 1975 Employment Protection Act. However, the relevant sections have now been repealed by the 1980 Employment Act. Furthermore this repeal had at least some support both from the Labour opposition and from the Advisory, Conciliation and Arbitration Service, the statutory body charged with operating the procedure.

What are the prospects for research in the area of labour law in the 1980s? This article argues that the main concern of research should be with legislative intervention in labour relations and should address itself to two inter-related questions: what lies behind the legislation? and how does the legislation function? We make some suggestions about the methodologies and theoretical perspectives of this research.

The urgent need to focus upon legislation requires little justification in view of the fundamental changes in the content of labour law in the last 17 years, particularly since 1971.

Stare decisis provides the framework of certainty in the codeless English legal system. Even since 1966, when the House of Lords announced its power to depart from earlier authority, it has shown great reluctance to do so and has underlined this need for certainty. Given the small number of cases that filter through to the House of Lords, it is, however, the Court of Appeal that plays the vital role in the supervision of the lower courts and in the maintenance of support for the strict theory of binding precedent. Situated at the focal point of our legal system it is responsible, according to Lord Scarman, for its ‘stability, its consistency and its predictability’. Orthodox theory demands that the Court of Appeal, at least in its Civil Division, be bound by its own decisions and look to the House of Lords or Parliament to deal with unsatisfactory law. Yet recently, the Master of the Rolls held that an earlier Court of Appeal decision should, in part, be ignored. It would appear, therefore, that Lord Denning's ‘one man crusade’ (to quote Lord Diplock in Davis v Johnson) against the strict application of stare decisis in the Court of Appeal continues. This article will consider Lord Denning's various pronouncements throughout his career on precedent as it affects the Court of Appeal and will attempt to assess the theoretical justifications of his unorthodox views.

Many words do not have a single meaning. There is rarely a problem where two different words of the same spelling have a different meaning as the context usually will clarify which of the alternative words is intended. The difficulty arises where the same word has more than one meaning and the different meanings are not unrelated to each other. The word wilful is such a word and much would have been gained if it had been struck out of the Parliamentary draftsman's dictionary many years ago. Very popular in Victorian legislation, its use in modern drafting is less common, but it still haunts the statute book providing problems of interpretation and illustrating the underlying conceptual weakness of much of English law.

The equitable doctrine of breach of confidence has been much publicised recently: not only in the news, one might say, but of it, as the legal peg upon which the British Steel Corporation hung their attempt to discover the source of a leak in their own organisation by claiming discovery of that source as an unknown wrongdoer. This is, ironically, a case of the biter bit, for it was not so long ago that it was suggested that journalists’ sources might be protected by the doctrine of breach of confidence. The purpose of this article is to question the validity of that assertion, by attempting to show that breach of confidence operates in a field entirely independent of the rules of evidence.