Per Incuriam Lent 2020

P ER I NCURIAM

CAMBRIDGE UNIVERSITY LAW SOCIETY

LENT 2019

Looking Beyond Legality: Institutional and Volitional Elements in the Phillipine Human Rights Project Goldsmith and Posner's International Legal Realism: Finding Cracks in the Crystal Ball

P ER I NCURIAM

CAMBRIDGE UNIVERSITY LAW SOCIETY

LENT 2019

LENT TERM 2020 EDITION

TABLE OF CONTENTS

06 PRESIDENT'S WELCOME Erica San

08 EDITOR'S FOREWORD Aaron Gan

10 LOOKING BEYOND LEGALITY: INSTITUTIONAL AND VOLITIONAL ELEMENTS IN THE PHILIPPINE HUMAN RIGHTS PROJECT Raphael A. Pangalangan

14 GOLDSMITH AND POSNER'S INTERNATIONAL LEGAL REALISM: FINDING CRACKS IN THE CRYSTAL BALL Christian Delev

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18 CIVIL LAW II Yat Hung Fergus Tam

20 CONSTITUTIONAL LAW Archit Sharma

22 CRIMINAL LAW Cher Yi Tan

24 CRIMINOLOGY, SENTENCING AND THE PENAL SYSTEM Arjun Dhar

26 EQUITY Jared Kang

28 LAND LAW Chiara Rohlfs

30 LAW OF CONTRACT Timothy Ong

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If you are interested in contributing to Per Incuriam, please drop us a line at per-inc@culs.org.uk. We accept articles from everyone, whether you are an academic, professional, or current student, including people from all universities.

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PRESIDENT'S WELCOME

Erica San | President

Dear Reader, Happy new year (and decade!) to all of our readers. I would like to thank the Per Incuriam Editorial Team for all of the hard work they have put in over the winter break to ensure that this edition of Per Incuriam is one of our best yet, as well as for their continued efforts to maintain our online blog during term time. In this edition, the team have compiled an impressive selection of interesting articles and high-scoring Tripos essays that is sure to be a useful read!

Per Incuriam has grown from strength to strength over the years, and has become a go-to publication in Cambridge for excellent legal essays and enriching articles. It is one of the many successful departments of the Cambridge University Law Society (CULS).

CULS is one of the oldest (founded 1901) and most active societies in Cambridge, running a vast array of social and career events, speakers events, Pro Bono projects, mooting, the Law Ball, the Lent Gala and more. On behalf of the whole committee, I hope you have an incredible Lent Term.

Best wishes, Erica San President 2019-2020

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LENT 2020

EDITOR'S FOREWORD

Dear Reader, A new year, a new issue of Per Incuriam!

The Lent issue contains two articles relating to international law. Raphael A. Pangalangan has done diligent research on the operation of the Philippine human rights project; and Christian Delev has engaged in a critical review of Goldsmith and Posner's legal theorems.

As usual, we have published a selection of First Class Tripos essays. These essays are a testament to the efforts of their respective authors, and we hope that they prove to be a valuable resource for your revision. We should add, however, that essays published in Per Incuriam are not 'model answers', but rather examples of good work in the Law Tripos.

If you would like to access further materials, please visit our online blog, which contains a collection of scholarly articles and commentaries on a variety of legal topics. The blog is accessible via the CULS Website and is currently in its third year!

We are very excited to bring you this latest edition of Per Incuriam, and we hope that it is of interest to you. If you would like to contribute to Per Incuriam, please feel free to send us any of your legal articles or essays so that we can consider them for future issues or our blog.

For now, we wish you a wonderful start to 2020!

On behalf of the editorial team, Aaron Gan Editor-in-Chief

Aaron Gan Editor-in-Chief

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Niamh Davis Deputy Editor 08

Alec Thompson Deputy Editor

Christine Carter Deputy Editor

LENT 2020

Looking Beyond Legality: Institutional and Volitional Elements in the Philippine Human Rights Project RAPHAEL A. PANGALANGAN The realization of international human

the law alone will not suffice. The

intimately and inextricably linked.[4]

rights neither begins nor ends with legal

success of the human rights project

While the complexities of their interplay

doctrine. That unfortunate reality rings

largely rests on a range of factors, such

may oscillate with the passing hour,

true in the Philippine islands which has

as:

their very recognition highlights the

been the theater of gross violations of fundamental

the nature and content of substantive

legal game: that the law cannot stand

its

human rights protections applicable

alone.

populist President, Rodrigo Roa Duterte.

within the domestic system, the role

unfortunate

The Universal Declaration of Human

of political and legal institutions in

human rights, this article will briefly look

Rights

most

over

recently

(UDHR)

the

difficult yet epiphanic realization of the

past

century,

rights

through

the

record

of

Philippines’ violations

of

purported

the implementation and enforcement

at how the success of human rights

universal norms, but it certainly did not

of rights, the resources available to

greatly

ensure them. Over seventy years since

ensure the fulfilment of rights, the

codifications

the UDHR’s inception, the Philippine

availability of remedies for violations

volitional elements.

human

of rights, the role of the media and

rights

enshrined

Utilizing

movement

has

often

meeting

legal

institutional

and

I. Institutional Capacity: More than

other

encountered retreat.

and the perception of the importance

Words

of rights among the members of the

The universality of human rights may

community

have been recognized in doctrine[5], yet

Duterte

administration

cites

a

laundry list of treaties and domestic case

and

commentators,

on

with

stumbled upon itself, and, at times,

The

independent

hinges

on

the

national

political agenda.[2]

has faced an “implementation crisis” in

law to feign respect for human rights

practice.[6] The Philippines has been no

qua rule of law.[1] But the spate of

These

considerations

are

condensed

exception to that narrative. For over a

extrajudicial killings in the nation paints

under two headings: first, institutional

decade of the Marcos Dictatorship, tens

a different picture. That gap between

capacity, and second, political will[3] –

of thousands of Filipinos laid victim to

principle and practice highlights how

two limbs which, though distinct, are

the Marcosian Atrocities[7] – brazen and

the

intim

[1] Response of the Philippine Government to the concerns raised by the Committee on Economic, Social and Cultural Rights during its 59th session in Geneva, citing UN

General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p.

Vrynes and 85. UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171; UN General Assembly, International Covenant on Economic, Social and Cultural Rights (hereinafter, ICESCR),16 December 1966, United Nations, Treaty Series, vol. 993, p. 3; UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.; UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249; UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195; UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Their Families: resolution / adopted by the General Assembly, 16 December 1992, A/RES/47/110.

[2] Brynes and Renshaw, 459.

[3] See Open Society Justice Initiative, 15-16.

[4] Prosecutor v. Gaddafi and Al-Senussi, para. 210. See also Schabas & Zeidy, 804.

[5] Human Rights Council, G.A. Res. 60/251.

[6] Open Society Justice Initiative, 15.

[7] See Pangalangan et al, Marcosian Atrocities: Historical Revisionism and the Legal Constraints on Forgetting, 19 Asia-Pac. J. on Hum. Rts. & L. 140 (2018).

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wanton violations of fundamental rights to life, liberty, and property.[8]

in a human rights-sensitive manner,[14]

illustrated by the Philippines. Although

and protecting human rights through

the nation is party to the International

constitutional

the

Covenant on Civil and Political Rights,

or

as well as the International Covenant

review[15]; whether

via

The nation has since grappled with the

Ombudsmen,

human rights in the post-Marcos era. The

specialized,

Philippines may have adopted a strong

administration[16];

human rights constitution with elaborate

which have the difficult task of wearing

checks-and-balances, ratified twenty (20)

two

international human rights instruments,

governments,

including all seven (7) core human rights

remaining independent of them.[17]

to

hats

classical

oversee

by

and

government

with

working yet

NHRIs,

closely

with

simultaneously

human rights cause; yet these republican

Domestic mechanisms are necessary for

institutions have all proven to be a sham.

the

Thirty years later, the country faces a

international

second wave of authoritarian rule in its

faithful follow-through by states, parties of

newly

their

elected

internationally met

President

infamous

domestically

and

drug

with

an

war[10]

implementation

human

international

rights

law.

obligations,

of The

would

bridge the gap from mere sentimental

thunderous

expression

applause.[11]

to

instrumental

implementation.[18] Absent that capacity to realize human rights, the ratification of

The Philippine situation illustrates how

international conventions would be but a

the

juridification

law

cannot

stand

alone.

The

of

elegant

but

empty

ratification of treaties must likewise be

promises. It would be the state playing to

the result of social processes; its execution

the gallery, joining the human rights

must

bandwagon through word but relegating

also

be

supported

by

social

institutions. Principle without practice is

it in deed.

be felt. To this end, domestic mechanisms

II.

are essential: the legislative body, through

Volition

oversight and lawmaking,[12] and the

But neither will law and capacity alone

executive, by taking into account positive

suffice. Indeed, as seen through the

and negative obligations when deciding

principle of complementarity, the success

on its policy priorities.[13] Hand-in-hand

of the human rights project considers not

with these democratic mechanisms is the

only ability but willingness.[19]

Political

Will:

Fruition

through

through the courts, by applying human

The vital role political will plays in the

rights guarantees, interpreting legislation

realization

See

Closing

of

human

rights

is

aptly

illustrated remarks

of

the

President

of

the

Constitutional

Commission

at

the

and

Cultural

consistency. While “civil and political rights have attracted much attention in theory

and

practice,

[…]

economic,

been neglected.”[20] Unlike civil and political rights, “economic, social, and cultural rights have been treated as poor

relatives

of

human

rights”[21]

where issues on justiciability and direct application[22]

hinder

their

full

realization.[23] Unwillingness may hinder a State’s capacity to realize human rights. The International Criminal Court itself has recognized through Prosecutor v. Saif Al-Islam Gaddafi and Abdullah AlSenussi that capacity and willingness

are intimately intertwined.[24] Such is by

the

Philippine

Commission on Human Rights (CHR). In Simon

v.

Commission

on

Human

Rights, the Philippine Supreme Court

pronounced

that,

International

although

Covenants

and

the UDHR

“suggest that the scope of human rights can be understood to include those that relate to an individual’s social,

need for counter-majoritarian processes:

Ombudsmen

Social,

encapsulated

inadequate—the abstract norm must also

[8]

Economic,

Rights, it has failed to afford them

social and cultural rights have often

treaties,[9] and pledged allegiance to the successful

on

final

session,

economic, cultural, political and civil relation”[25], empowered rights

Official

Gazette,

http://www.gov.ph/1986/10/15/closing-remarks-of-the-president-of-the-constitutional-commission-at-the-final-session-october-15-1986

the to 15

(visited

Commission

investigate October 15

July

1986 2017).

is

“human available

at

Presidential

Communications Development and Strategic Planning Office, Martial Law in Numbers: A Martial Law Infographic available at https://goo.gl/xXwz7J (visited 15 July 2017); Presidential Communications Development and Strategic Planning Office, Martial Law in Numbers: A Martial Law Infographic available at https://goo.gl/xXwz7J (visited 15 July 2017).

[9] Response of the Philippine Government to the concerns raised by the Committee on Economic, Social and Cultural Rights during its 59th session in Geneva.

[10] See “If You are Poor You are Killed”: Extrajudicial Executions in the Philippines’ “War on Drugs”’ Amnesty International (27 January 2017) <https://perma.cc/4NWQ-3RRU>;

‘Duterte: I didn't order police to kill’ Philippine Daily Inquirer (29 December 2016) <https://perma.cc/X3PF-4CUV> ‘License to Kill’ Human Rights Watch (March 2017) 17 <https://perma.cc/CYC9-WCGV>.

[11] "Filipinos support Duterte’s deadly war on drugs" Business World September 22, 2019 available at https://www.bworldonline.com/filipinos-support-dutertes-deadly-war-on-

drugs/.

[12] Brynes and Renshaw, 471.

[13] Id. at 470 [14] Id. at 469 [15] Id. at 470 [16] Id. at 472 [17] Id. at 473 [18] Hathaway, 2002.

[19] Rome Statute at art. 17(1)(a). See “Informal expert paper: The principle of complementarity in practice” (2003) ICC-OTP available at https://www.icc-

cpi.int/NR/rdonlyres/20BB4494-70F9-4698-8E30-907F631453ED/281984/complementarity.pdf The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings.

[20] Asbjørn Eide, 3.

[21] Albuquerque, 145.

[22] van Boven, 144-5.

[23] Vandenbogaerde, 237.

[24] Prosecutor v. Gaddafi and Al-Senussi, para. 210.

[25] Simon v Commission on Human Rights (1994).

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rights

violations

involving

civil

and

political rights” alone.[26]

Albuquerque CA, ‘Chronicle of an Announced Birth. The Coming into Life of

Through Simon, the Philippine Supreme Court reinforced the faux

dichotomy

separating the civil and political from the social, economic, and cultural. The law was binding by treaty ratification, and the implementing

capacity

was

present

through the CHR. Yet by sheer judicial whim, these tools were reserved for the civil and political but withdrawn from the social, economic, and cultural. While the ICCPR may be well-entrenched in the Philippine legal system, the ICSECR is denatured

and

relegated

as

mere

aspiration rather than right per se.[27] Like the instrument, the law is only as useful as the hand that wields it.

and Cultural Rights. The Missing Piece of the International Bill of Rights’ (201) 32(1) Human Rights Quarterly, pp.144-178.

Asbjørn Eide, et al. Economic, social and cultural Rights: A Textbook, (Martinus 2nd ed., 2001).

Brynes and Renshaw, ‘Within the State’ in Moeckli, Shah & Sivakumaran, International Human Rights Law (Oxford University Press, 2014).

Const. (1987) (Phil.). de Vos C, ‘From Rights to Remedies. Structures and Strategies for Implementing International Human Rights Decisions’ (Open Society Justice Initiative 2013). Please read the Executive summary (pp.15-21) and chapter 1 (pp. 23-29).

Donnelly J, ‘The Relative Universality of Human Rights’ (2007) 29.2 Human Rights Quarterly, pp. 281-306.

Hathaway OA, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111.8 The Yale Law Journal, focus on pp. 2002-2025.

Human Rights Council, G.A. Res. 60/251, U.N. Doc. A/RES/60/251 (March 15, Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-

It is said that the “less favored in life will be the more favored in law.”[28] But with both ability and accord—capacity and will —they who have less in life would have more in life, and not simply in law.

rest on the law alone. The success of human rights is, after all, a complex process. It involves the interaction of substantive norms of human rights, their status in the domestic legal system, and the safeguards and mechanisms put in place for their realization. human

01/11-466-Red, Decision on the Admissibility of the Case against Abdullah Al-Senussi, Pre-Trial Chamber I, 11 October 2013.

Response of the Philippine Government to the concerns raised by the Committee on Economic, Social and Cultural Rights during its 59th session in Geneva, Switzerland on September 28-29, 2016, 48.

Robert H. Bork, Tempting of America: The Political Seduction of the Law

The realization of human rights cannot

Philippine

the Optional Protocol to the International Covenant on Economic, Social

2006).

Conclusion

The

Bibliography

(Simoun and Schuster, 1990).

Rome Statute, 2187 UNTS 90 (adopted 17 July 1998, entered into force 1 July 2002).

Schabas & Zeidy, ‘Article 17: Issue of Admissibility’ in O. Triffterer, Commentary on the Rome Statute of the International Criminal Court (Beck, 2008).

Simon v. Commission on Human Rights GR No 100150 5 Jan 1994.

UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984,

rights

project

attests to that need to unite the legal, institutional, and volitional. Human rights law alone is not a panacea for the world’s problems.[29] All elements are essential to the realization of the universal norm.

[30] Unless prowess is met with readiness, history has shown that neither law nor institution will realize human rights for us.

United Nations, Treaty Series, vol. 1465, p. 85.

UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249; UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195; UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Their Families: resolution / adopted by the General Assembly, 16 December 1992, A/RES/47/110.

UN General Assembly, International Covenant on Civil and Political Rights,

[26] Ibid.

[27] Brynes and Renshaw, 463.

16 December 1966, United Nations, Treaty Series, vol. 999, p. 171;

[28] Bork, 70.

UN General Assembly, International Covenant on Economic, Social and

[29] Donelly, 306.

Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p.

[30] Brynes and Renshaw, 474.

3; UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.; van Boven, ‘Categories of Rights’ in Moeckli, Shah & Sivakumaran, International Human Rights Law (Oxford University Press, 2014).

Vandenbogaerde A and Vandenhole W, ‘The Optional Protocol to the Covenant on Economic, Social and Cultural Rights: an ex ante assessment of its effectiveness in light of the drafting process’ (2010) 10.2 Human Rights

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Law Review, pp. 207-237.

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Goldsmith and Posner’s International Legal Realism: Finding Cracks in the Crystal Ball CHRISTIAN DELEV INTRODUCTION

By adopting a rational choice approach,

questionable

If the International Relations realist were

Goldsmith and Posner draw on certain

which

to define their theory using the concept

assumptions that do not necessarily

First, the authors note the importance of

of ‘interest defined in terms of power’,

reflect

understanding that States’ interests are

the international legal realist would be

development of IL. Their perspectives on

a

quick to add ‘with international law

the functions of IL – especially their

domestic actors’ interests but do not

among its means’.[1] Goldsmith and

failure

internal

address this point further. However, as

Posner thus present their own State-

dimension and its role of fostering

Ranganathan points out, there is no

centric

of

coordination and cooperation – have

reason not to extend the analysis further

International Law (‘IL’) in The Limits of

similarly generated significant criticism.

and focus, instead of the ‘assumption’ of

International Law.[2] Accordingly, the

[5] Finally, the theory can be further

States, to the role of socio-economic

development of IL is viewed as the

challenged for its failure to prescriptively

groups, such as domestic social classes

account for past developments within

or

certain complex areas of international

States are themselves disaggregated

law, such as the law of the seas. Each of

and internally indeterminate – a point

these points must thus be assessed to

raised later by Posner and Sykes in their

recognise the weaknesses of this realist

analysis of the development of the law

theory and detect IL’s shift towards

of the seas – and do not necessarily act

addressing

in accordance with singularly defined

rational-choice

currency

of

States’

theory

interest-driven

interactions that centres around four key scenarios,

with

the

first

two

being

prominent – coordination, cooperation, coercion and coincidence of interest.[3] While their work holds certain merits, particularly challenge

for to

providing the

now

a

novel

somewhat

entrenched Lauterpachtian view of IL’s

the

to

present

state

recognise

IL’s

the

and

international

community’s broader interests.

are

assumptions, particularly

‘disproportionate’

transnational

some

of

unconvincing.

reflection

economic

of

elites.[6]

interests, as neo-classical realism would suggest.[7] Thus, it would be difficult to

ASSESSING ASSUMPTIONS

view them as acting in line with clearly

disputes’, it nonetheless raises questions

In adopting a realist viewpoint on the

defined, even perceptible, interests. After

and

nature of international law, Goldsmith

all,

and

suggested, the cluster of legal and

‘function

[...]

concerns

in

the

that

settlement

have

dequately addressed.[4]

not

of

been

Posner

rely

on

a

number

of

questiona

as

behavioural

economists

have

natural

[1] Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (AA Knopf 1948) 4–5.

[2] Jack Goldsmith and Eric Posner, The Limits of International Law (OUP 2005) 4.

[3] Ibid, 10–14.

[4] Hersch Lauterpacht, The Function of Law in the International Community (OUP 2011) 3. Lauterpacht famously challenged Morgenthau (n 1) on the point by accenting the

intrinsic value of IL not only as the product of international relations, but rather as a separate plain on which States can interact and resolve their respective conflicts based on mutually accepted norms.

[5] Unlike the traditional way of observing IL through its external dimension, which reflects inter-State relations, the internal dimension covers intra-State matters, such as the

scope of domestic tribunals’ jurisdiction, the validity of domestic law in terms of the Most-Favoured-Nation and National Treatment obligations under WTO law, etc.

[6] Surabhi Ranganathan, ‘Sea Changes’, in A Brett, M Donaldson and M Koskenniemi (eds), History, Politics and Law: Thinking through the International (forthcoming). See

Goldsmith and Posner (n 2) 5.

[7] Eric Posner and Alan Sykes, ‘Economic Foundation of the Law of the Sea’ (2010) 104(4) AJIL 569, 571 et seq. By internally indeterminate, this means that States cannot be seen

just as singular entities, but rather the formations of a heterogeneous range of citizens with their own separate interests.

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natural persons comprising States are

States ‘maximize their interests’.[11]

not foster a strictly voluntaristic system, but rather one where – per the Lotus

victims of their own bounded rationality.[8] Third, by assuming a State-centric system

case’s reasoning – national jurisdiction

Similarly, one can extend the question to

within which IL operates, Goldsmith and

neither exists, nor is restricted without

whether the interests of individual States

Posner fail to properly address the active

there being a positive rule.[15] Thus, IL

can be understood without taking into

role

facilitates

account

the

de

facto

role

of

other,

of

other

particularly

actors

and

international

agents,

courts

and

both

coordination

and

cooperation between States and prevents

exogenous factors, such as the direct

tribunals. For instance, Benvenisti uses the

conflicts

involvement of foreign States or non-State

example of the International Court of

respective domestic legal systems.[16]

actors in shaping national narratives and

Justice’s

Gabcikovo-Nagymaros

Through institutional forums, such as the

understandings.

established

judgment to explain how international

United Nations General Assembly and

intervention in the 2016 United States

courts serve as agents of IL that actually

Security Council, a framework and forum

Cambridge

uphold the rules-based IL system and

for

Analytica targeting UK voters during the

contribute to its prominence as a forum

evidently,

Brexit

that demands further coordination of

Similarly, IL can serve as technology to

examples.[9] By questioning the equality of

interests

States’

ensure mutually satisfactory decisions are

States – the Westphalian doctrine that has

relations

transboundary

adopted.[17] Where treaties transcend

grounded the modern State-centric view

cooperation to reach mutually satisfactory

borders and pool States’ interests, it

of IL – we can further see the shaky

solutions.[12] In this case, the ICJ used the

facilitates their respective cooperation

grounds of realism’s presumption that

question of the bindingness of a treaty to

and even integration, with the European

States are purely determinate entities that

build a complex system of dams that had

Union being a prime example. Ultimately,

interact

been agreed upon during Hungary and

contra Goldsmith and Posner, IL does

Slovakia’s

to

provide the space within which State

force inter-State cooperation.[13] Similarly,

conflicts can be settled outside of any

by recognising the treaty framework of

implicitly

presidential

Russia’s

election

referendum

within

a

and are

just

recent

decentralised

and

indeterminate system.

Second, in assuming a game theory-based

(‘ICJ’)

and

deepening

through

communist

of

dictatorships

from

States

to

emerging

coordinate

cooperate

is

Hobbesian

between

and,

more

established.

international

power-based

the UN Convention on Transboundary

relations framework.[18] Thus, it provides

interactions take place, the authors fail to

Watercourses, which had then not yet

the rules for States to be able to coexist

grasp the intricate role of IL as a playing

entered into force, the Court shifted the

and,

field in itself.[10] Thus, as Anghie notes

focus of the case from a matter of State

cooperate.

from a critical legal studies perspective,

failure to a joint right being established

while IL is itself based around an economic

that

power dynamic centring around North-

community’s interests.[14]

matrix

within

which

reflected

the

international

consequently,

coordinate

and

Goldsmith and Posner similarly ignore the role of IL as an arena in itself for coordination and cooperation. In addition

South relations and, in the long term, presents an unfair balance of interests

ACCOUNTING FOR IL'S CORE FUNCTIONS

to the points raised above, IL fosters the

within a formally indeterminate system, it

In

the

opportunity for greater coordination in

is nonetheless a rules-based ‘arena’ that

rational choice framework suggested by

light of its stickiness, i.e., its continued

allows for more powerful States to be

Goldsmith and Posner, it is questionable

relevance and applicability. While purely

opposed by weaker ones, rather than

whether IL’s internal dimension can truly

voluntaristic

serving as a canvas behind which powerful

be disregarded. IL’s very foundations do

would themselves foster gains for States

no

tha

considering

the

operation

of

inter-State

interactions

[8] Behavioural economics has shown that individuals and groups are not as intrinsically rational as previously assumed, thus being constrained in the way we reach optimal

outcomes. Moreover, psychological costs are seen as additional subjective costs within this analytic framework. See, e.g., Gerd Gigerenzer and Reinhard Selten, ‘Rethinking Rationality’ in G Gigerenzer and R Selten (eds), Bounded Rationality: The Adaptive Toolbox (MIT Press 2002) 3–4.

[9] Robert Mueller III, ‘Report on the Investigation into Russian Interference in the 2016 Presidential Election, v 1’ (US Department of Justice May 2019)

<https://www.justice.gov/storage/report.pdf> accessed 29 December 2019; Alex Hern, ‘Cambridge Analytica did work for Leave.EU, Emails Confirm’ (The Guardian, 30 July 2019) <https://www.theguardian.com/uk-news/2019/jul/30/cambridge-analytica-did-work-for-leave-eu-emails-confirm> accessed 29 December 2019.

[10] Game theory is the use of mathematical models to represent the interactions of rational, interest-driven actors given certain situations and number of iterations, with

varying degrees of complexity. They are thus used to better understand the interactions between decision-makers in different situations. Classic and well-known examples are the prisoner’s dilemma and the battle of the sexes.

[11] Antony Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’ (2007) 27(5) Third World Quarterly 739, 752. As a critical legal studies scholar, Anghie

presents the view that while IL has experienced many changes in form – e.g. transitioning from early Christian dogma to being a system governed by natural law, and finally to one governed by positivistic rules – it has maintained its function to represent the central interests of the economically powerful Global North against the peripheral Global South.

[12] Eyal Benvenisti, ‘Exit and Voice in the Age of Globalization’ (1999) 98(1) Michigan Law Review 167, 190–192; Case Concerning the Gabčikovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7, paras 101–104, 130–142 (‘Gabčikovo-Nagymaros Project’).

[13] Gabčikovo-Nagymaros Project, paras 101–115.

[14] Gabčikovo-Nagymaros Project, para 85; UN Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted 21 May 1997, entered into force 17

August 2014) 36 ILM 700.

[15] A voluntaristic system should be understood as one where States are subject to constraints only when they voluntarily assent to be bound by them.

[16] An Hertogen, ‘Letting Lotus Bloom’ (2015) 26(4) EJIL 901, 906–91 [17] The term ‘technology’ is used here to mean that IL serves as a way of preventing conflicts from emerging or being manifested. See, however, for its political dimension and

broader uses, M Foucault, The Will to Knowledge: The History of Sexuality (Penguin 1990).

[18] Hobbes used the phrase ‘the Condition of every man against every man’ to describe human nature in the absence of a State. See Thomas Hobbes, Leviathan (1965) ch 12.

This has since been adopted as a neo-realist expression of the friction that exists in international relations in the absence of centralisation.

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that diverge from commonly agreed substantive rules, IL in its present state provides formal constraints on the respective arena itself, which act as ‘grammatical rules’ for State interactions that encourage alternative means of resolving inter-State disputes and increase collective gains.[19] Further, by enabling closer cooperation, IL pushes States to become bound within a much more adhesive system that requires hard, multilateral law regardless of its form to prescribe binding regulation. Consequently, IL cannot be perceived as merely being the corollary of State interactions, but intrinsic to them.

LIMITED PRESCRIPTIVENESS

Finally, Goldsmith and Posner’s theory is, through their own admission, a deficient prescriptive depiction of IL.[20] By adopting game theory as a tool in analysing how States’ interests are maximized, it is restricted by the fact that reasonable predictions of actors’ behaviours are difficult to make. First, while games such as the prisoner’s dilemma may yield certain levels of predictability when subject to multiple iterations, they are restricted when the total number of States are increased.[21] Second, more complex games, notably the public goods game, illustrate how different interactions can be expected between States, especially when the chief metric is their respective self-interest.

An illustration of how this interest-based model is restricted in predicting States’ interactions can be provided using the international community’s resolution on how to treat the deep seabed as a case-study. As States had opportunities to arrive at different final outcomes than the ‘common heritage’ that would have satisfied their respective interests – for instance, apportioning it so that all States would be able to individually make use of its resources – a purely State interest-driven analysis cannot provide a clear answer for why this outcome was reached instead of its alternatives.[22] Indeed, recognising that interests may be collective and long-term can provide further insight into the modern state of IL. CONCLUSION

In conclusion, Goldsmith and Posner’s realist theory of IL – that it is merely the corollary of States’ power and interest-driven interactions – poses more questions than it answers. Goldsmith and Posner challenge liberal and cosmopolitan theories of IL and attempt to show that realpolitik underlies all IL achievements, somewhat comparable to the neorealism advanced by Kenneth Waltz and Henry Kissinger.[23] However, their conceptualisation should be viewed cum grano salis since it is chiefly rooted in a subset of contentious realist assumptions, fails to provide an accurate account of IL’s functions and, what is more, remains an unreliable tool to prescribe IL’s future development.

[19] Aisling O’Sullivan, ‘A Return to Stability? Hegemonic and Counter-Hegemonic Positions in the Debate on Universal Jurisdictions in absentia’, in J Handmaker and K Arts

(eds), Mobilising International Law for ‘Global Justice’ (CUP 2018) 167.

[20] Goldsmith and Posner (n 2) 39.

[21] Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (OUP 2016) 273–275 for discussion on the game theory criticism of Goldsmith and

Posner’s approach to customary international law.

[22] Ranganathan (n 6).

[23] See, e.g., Kenneth Waltz, Man, the State, and War (Columbia University Press 1959); Henry Kissinger, Diplomacy (Simon & Schuster 1994); Henry Kissinger, World Order

(Penguin 2014).

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*Law Tripos 2018, Civil Law II, Question 8.

CIVIL LAW II "Did the Roman jurists have a satisfactory approach to causation in the lex Aquilia?"* YAT HUNG FERGUS TAM PER INCURIAM

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In asking whether the Romans had a

"More attractive is Sirks' solution, that Julian

"satisfactory approach" to causation, the

wanted to take a bold step applying Stoic

quote erroneously implies that the Romans had

one

authoritative

approach

to

philosophy."

causation. In fact, it could be said that the Romans did not have any considered views on causation in the context of the lex Aquilia. This can be seen through the Digest

working through the various elements of the lex Aquilia in groups of texts, but never

grappling with causation. Regardless, by collating

the

texts

that

relate

to

stereotypical situations in modern law that are deemed to give rise to "causation issues", the conclusions of the Romans can be seen.

Two points are noted. First, the Romans relied on culpa to cut through otherwise difficult different

issues jurists

of

causation.

can

reach

Second, different

conclusions, which is not surprising as culpa, or blameworthiness, is easily variable

from individual to individual in a casuistic approach to law.

javelins turned on whether the slave walked

across

the

field

at

an

inappropriate time (D.9.2.9.4). In doing so, the difficult issues of whether it was the javelin-thrower, the slave, the javelin, or the

director

of

organising

javelin-

throwing that caused the harm is neatly cleaved in half.

Variance

However, the categorisation of situations considered by jurists under modern law issues should not be allowed to conceal the fact that culpa is ultimately an ad hoc decision,

which

is

therefore

easily

affected by the preferences of jurists.

In D.9.2.11.3, where one "hits another

Culpa

Where multiple wrongdoers cause harm together, it can be difficult to place liability.

This is all the more so in Ancient Rome where sophisticated modern technology is unavailable. The Romans cleared through such issues by saying they all had culpa, and therefore are all liable: where several people hit a slave, if it appears who delivered the killing blow, he is liable under Chapter 1; when it is ambiguous, they are all liable (D.9.2.11.2). An exception is where a master's slaves all commit the same wrongdoing. In this case, the master is only liable for one times the damage, but that is an exception on public policy, it being unfair that a master can lose his entire household in one event. Similarly, the veteres held the same opinion (D.9.2.51.1).

mortally" and another exanimaverit the victim, the former is liable for wounding only, and the latter killing. This view by Celsus is upheld by Ulpian, calling it "the more probable view".

Similarly,

where

a

slave

is

mortally

wounded and later dies of another blow, only an action for wounding can be brought. Suggestions that this is the view of Ulpian only and not Julian cannot fit with the text as "Iulianus ait" at the end of the sentence in D.9.2.15.1 is the verb for both clauses.

The

reason

why

scholars

here

have

debated whether the view in D.9.2.15.1, in line

with

such as multiple sufficient causes: where several people throw down a beam and crush a slave, all are liable (D.9.2.11.4).

that

in

D.9.2.11.3,

can

be

Similarly, issues of contributory negligence are dealt with: where a slave's throat is cut because a ball hits the barber's hand, liability turns on "whoever of them is to blame" (Mela in D.9.2.11.pr). Ulpian unpacks this, saying it was dependent on whether the barber was shaving "where people customarily played or not". In an analogous

19

difficult text of D.9.2.51.pr. There, where the victim was wounded such that it was certain he would die of that blow, then died

after

adhere to what is now called the "thin skull rule". Given the thin skull rule was quickly applied by Labeo in D.9.2.7.5 where a sick slave dies of a light hit, without further discussion, elaboration, or contrary texts, it is unlikely Julian would be so different and out of line from the other jurists.

attributable to Julian is due to the

This use of culpa cleaves through difficulties

PER INCURIAM

vein, liability for killing a slave by throwing

being

"struck

by

another

person", Julian held both wrongdoers

More attractive is Sirks' solution, that Julian wanted to take a bold step applying Stoic philosophy. There, fate is regarded as fixed. The first blow was a causa principalis, and the second blow both an accelerating cause of the first, and a principal cause in its own right.

Given Stoic philosophy was introduced

liable for killing.

to the Romans, this is not impossible,

Kortmann suggests the wording "alios

between Julian and Celsus. Therefore,

and

ictus" indicates the second wrongdoer

was not viewed as causing serious harm, but just a minor injury. In this case, the first blow was still the cause of death.

However,

Kortmann

admits

that

this

would involve holding that Julian did not

the

would

explain

application

of

the causa

difference certainly

enabled the Romans to deal with issues of causation that we still find difficult, but also enabled personal differences between jurists to manifest itself in the application of the law.

LENT 2020

*Law Tripos 2019, Constitutional Law, Question 1.

CONSTITUTIONAL LAW "What are the constitutional foundations of judicial review? What does the debate on this matter tell us about the rule of law and its constitutional status in the United Kingdom?"*

ARCHIT SHARMA In this essay it will be argued that the

theory that best explains the foundation

Lord

differing

the

of judicial review, however his argument

legitimate expectations, a ground of

constitutional foundations of judicial

is perhaps less convincing than others.

review.

review really differ in their perspective

While ultra vires provides a justification

struggle to explain these developments,

on how substantive the rule of law is,

for judicial review firmly compatible

but the common law theory makes

and its place in relation to Parliamentary

with

Parliamentary

sense of those piecemeal extensions.

sovereignty.

sovereignty, it does not perhaps explain

The common law theory also arguably

the current reality of judicial review.

better explains Anisminic, where despite

different

theories

While

possible

about

there

are

many

foundations,

the

the

principle

of

theories that have a role for a more

Denning The

admitted

ultra

vires

he

created

theory

may

the fact it seemed clear Parliamentary

substantive rule of law seem to be more

Perhaps a more convincing theory is

intent was to oust judicial review, the

convincing.

thus the argument that the common

courts interpreted the ouster clause in a

law provides a better constitutional

way so as to avoid this exclusion. Forsyth

Constitutional foundations of judicial

foundation for judicial review. John Laws

argues that this is in line with the ultra

review

has argued this better explains the

vires theory as the court was reviewing

One possible constitutional foundation

historical origins and development of

an ultra vires decision, yet the common

for judicial review is the ultra vires

judicial review, and in many ways this is

law theory better explains the clash with

theory. This says that judicial review

convincing. For example, the extension

Parliamentary intent.

stems

of

from

Parliamentary

intention.

judicial

review

to

the

use

of

When a minister extends the powers

prerogative powers, as confirmed in

However, one possible problem with the

given to them by statute, they are acting

Bancoult (when previously they had not

common law theory is that it assumes

ultra

to

been), could not be traced back to

there is a vacuum in which the courts

Parliamentary intent, thus the courts

Parliamentary intention. Rather it seems

can exercise the common law in relation

should step in to review the legality of

like the courts developed the principles

to statute. Forsyth by contrast says there

the decision. Forsyth argues it is this

and scope of judicial review. Similarly,

is no â&#x20AC;&#x153;grey area between authorisationâ&#x20AC;?

vires

and

so

contrary

TDFS

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LENT 2020

However, one possible problem with the

long as it is authorised by statute it is

common law theory is that it assumes

acceptable. So far as it advances any

there is a vacuum in which the courts

conception of the rule of law, it is a

can exercise the common law in relation

formal one: decisions must be made

"The common law

to statute. Forsyth by contrast says there

according to due legal process, but

is no “grey area between authorisation”

beyond this anything is acceptable.

constitutionalist view also

and

ultra

theory’s

vires.

idea

The

of

inconsistent

a

common vacuum

with

not only allows for an

law

seems

By contrast, both the common law

interpretative

theory and the modified ultra vires

principles such as those established in

theory

Pierson, where Lord Steyn explicitly said

emphasis) suggest a role for a much

“Parliament does not legislate in a

more substantive conception of the rule

vacuum”. Rather legislation should be

of law. Both indicate judicial review has

interpreted in line with the rule of law.

developed in response to rule of law

Thus

needs, for example access to justice in

academics

like

Elliott

have

(though

their

Anisminic.

saying every aspect of judicial review

theory suggests a big role for the rule of

need

law but does not make it clear what

be

traced

back

to

modified

in

developed a modified ultra vires theory, not

The

different

conception.

to

be

judicial review suggests it might be

exercised compatibly with the rule of

substantive. This can be seen in the

law. Young argues this is similar to the

increasing willingness of the courts to

common law theory, yet the modified

review the merits of a decision, both on

version allows for the Pierson principle.

Wednesbury

It also seems to be more compatible

proportionality

with

Parliament

intention,

intends

but

decisions

the

grounds

reality

and

basis.

on

Daly

a said

as

proportionality should be used when rights are involved, and this arguably

back to Parliamentary intent.

involves a deeper review of decisions

sovereignty,

than

ever

before,

as

whether

the

Other theories like Allan’s completely

infringement on a right is proportionate

dismiss the role of Parliamentary intent,

is considered. This suggests a much

on

bigger role for a substantive rule of law.

the

basis

that

Parliamentary

but indeed necessitates it."

of

judicial review as a whole may be traced

Parliamentary

substantive rule of law,

vires

rather

Parliamentary

However

ultra

important role of a

sovereignty does not exist, and argue only

The common law constitutionalist view

judicial

also not only allows for an important role

review. This argument may be less

of a substantive rule of law, but indeed

convincing,

necessitates

the

common

constitutional

law

is

foundation as

it

the of

seems

clear

it.

By

dismissing

Parliamentary sovereignty does exist to

Parliamentary sovereignty as the driver

some extent: while Lord Hope in AXA

of judicial review, it seems the rule of

says it is still open whether it is absolute

law must take this role.

or limited, this presupposes its existence in some form. Thus the modified ultra

Conclusion

vires theory may be the most convincing

On the whole, the role of the rule of law

theory of the constitutional foundations

in our constitution may differ hugely

of judicial review.

with

each

constitutional

different foundation

possible of

judicial

Implications for the rule of law and its

review. The ultra vires theory inevitably

status

places

Which theory is accepted is important

Parliamentary

not only due to how accurate it may be in explaining judicial review, but due to its implications for the nature and constitutional status of the rule of law in the UK. The ultra vires theory places Parliamentary sovereignty over the rule of law in a constitutional hierarchy. A decision, according to this theory, may

the

constitutional

rule

of

law

as

sovereignty. foundations,

below Other

however,

allow for both a higher status for the rule of law in relation to Parliamentary sovereignty, and a more expansive rule of law in the first place. The debate thus reveals key differences in how the rule of law is viewed, especially in relation to Parliamentary sovereignty.

be contrary to the rule of law, but as

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21

LENT 2020

*Law Tripos 2019, Criminal Law, Question 3.

CRIMINAL LAW

"Does English criminal law have a distinct doctrine of ‘joint enterprise’ liability? Does it need one?"* CHER YI TAN The term “joint enterprise” liability is a

the defendant can still be liable so long

The “plain vanilla” joint enterprise cases

layman’s term and must be carefully

as he/she foresaw the second crime (as a

are where the defendant agrees with

analysed. Hughes LJ in A, B, C, D defined

matter of substantive law).

the principal to kill the victim, but it is the principal who does the physical

it as encompassing three scenarios: (1) where the defendant aided, abetted,

Jogee argued that Chan Wing Siu

actions while the defendant stands by to

procured or counselled (Accessories and

represented

in

watch. Since joint enterprise is no longer

Abettors Act 1861) the principal, (2) “plain

previous law and that it was unfair to the

a “legal term of art”, presumably these

vanilla joint-enterprise” and (3) parasitic

defendant to hold him criminally liable

defendants will have to be convicted

accessorial liability. This essay will focus

for the unendorsed conduct of another.

under the standard rules of accessorial

on the latter two and argue that not

It also recognised the disproportionate

liability.

only are they still present after Jogee,

effect it had on certain ethnic groups

the law needs them as well.

leading

a

clear

departure

lose

However, as will be argued below,

respect for the criminal law (Crewe,

English law needs a doctrine of joint

The superficial effect of Jogee is that it

Liebling, Padfield and Virgo). Thus, Jogee

enterprise. Arguably, the Supreme Court

abolished all types of joint enterprise. It

purported to abolish this doctrine and

recognised this as well; thus, though the

was held that “joint enterprise is no

revert the law to its traditional state. In

superficial

longer a legal term of art”. However, the

Jogee

headline-grabbing,

clear focus in Jogee was on abolishing

convicted of manslaughter instead of

one species of joint enterprise – parasitic

murder as he merely foresaw his partner

accessorial liability. This was arguably

going into the house to kill the victim.

these

itself,

populations

the

to

defendant

was

held that where a defendant has a

In

common unlawful purpose with the

liability,

principal (such as where he assisted or encouraged

crime),

and

the

principal embarked on a different crime,

PER INCURIAM

22

of

Jogee

they

were

were not

significant.

For defendants seeking leave to appeal convictions out of time, they must

first established in Chan Wing Siu which

one

effects

abolishing Stark

parasitic has

accessorial

argued

that

the

demonstrate before

their

a

“substantial

cases

Supreme Court “threw the baby out with

However,

contrary

the

following

Jogee,

bathwater”

by

no

longer

acknowledging joint enterprise at all.

will to few

injustice”

be

heard.

expectations cases

have

succeeded on appeal. This is due to the

LENT 2020

retention of “conditional intent” by the

by English law’s long recognition of this

law

requires

court, which can be satisfied using mere

type of liability. Chan Wing Siu was not

separate doctrine, I am satisfied with the

foresight as evidence. Though Jogee has

a departure, it was merely being honest

current state of the law where it is not

changed the rule on foresight to mere

on what the law was (Stark). Jogee

prominent. It is satisfactory for the

evidence, it has had great effect. Stark

simply reverted the law to its original

doctrine to operate in the shadows to

cites Hall where the defendant was out in

state of an underlying operation of the

give the jury moral elbow room to

the carpark looking for her shoes when

doctrine. Moreover, Horder has said

convict deserving defendants. An overt

the

a

doctrine

commit violence due to Robinson and

good for legal certainty, is bad for the

foresight. In effect, Jogee was therefore

Daly’s “risky shift phenomena” that

rule of law as it causes a lack of public

“tamed”. The crucial matter is left to the

each

respect in the criminal law as has been

jury who are allowed to convict one on

emboldened when together.

“Conditional

gang

member

feels

more

argued.

One

enterprise,

as

that gangs are five times more likely to

happened.

joint

enterprise

intent” here seemed so similar to a rule of

murder

of

joint

must

though

balance

the

competing concerns and the present

mere foresight alone. In reality therefore, Jogee has not yet abolished parasitic

Moreover, retaining joint enterprise is

state of the law, in my opinion, has

accessorial liability.

necessary

reconciled it well.

as

coherence

it

over

maintains the

the

theoretical

One must also consider the actus reus of

jurisprudence of secondary liability. It is

In conclusion, English law has retained a

joint enterprise. This is what differentiates

clear that we have a derivative model

doctrine of joint enterprise even after

it from traditional secondary liability. The

of liability instead of a causation model

the purported effects of Jogee. This is

actus reus here involves only a “common

since one can still be held liable for the

normatively good since such a doctrine

unlawful

Simester

free, independent acts of the principal.

has practical effects to convict deserving

argues that the entire doctrine of joint

Using the derivative model, it is the act

defendants and maintains an adequate

enterprise is abolished, the better view is

of expressing solidarity (Hornle) with

theoretical basis for secondary liability.

that the Supreme Court’s lack of clarity

the principal that gives rise to one’s

Though it is no longer distinct, it has

with

unlawful

guilt. The principal’s subsequent acts

been controversially argued that an

purpose” means that it is still alive. Since

are thus all justly attributed to the

overt doctrine is not what the law needs.

foresight

accessory,

or

A hidden doctrine achieves a good

conditional intent (mens rea), and the

otherwise, since the accessory derives

balance between legal certainty and

actus

liability from the principal. In effect, this

public respect in the rule of law.

purpose”.

respect is

reus

to

Though

“common

sufficient is

still

to

establish

present,

Virgo

convincingly argues that all forms of joint

whether

intended

is a form of constructive liability.

enterprise liability still implicitly exist. The only effect Jogee had was to perhaps relegate the doctrine to the shadows

"Moreover, retaining joint

such that English law has no “distinct

enterprise is necessary as it

doctrine of joint enterprise”, in the sense

maintains the coherence over

that it is prominent. Nevertheless, it is still present in reality, similar to Glazebrook’s

the theoretical jurisprudence

hidden defence of necessity.

of secondary liability."

It is argued that the Supreme Court’s unwillingness to abolish both forms of

The

joint enterprise is justified. We need this

gateway wrong making him strictly

accessory

type of liability.

liable

for

has any

committed

a

aggravating

consequences (Simester). This can be Firstly, for “plain vanilla” joint enterprise,

justified on the moral forfeiture theory

though the defendant will probably be

of liability as the accessory has forfeited

liable under the wide rules of traditional

his right to be treated independently.

secondary

more

Maintaining joint enterprise is essential

appropriate to convict them of joint

to bring coherence to this area of the

enterprise

as

common

unlawful

liability,

it

is

much

is

on

law. If we abolished it, one could

This

is

question whether a resurgence of the

Ashworth’s argument of fair labelling of

causation model is taking place which

offences.

would be unsatisfactory in capturing all

the

focus

here

purpose.

deserving defendants.

More importantly, for parasitic accessorial liability, though it has had a regrettable

The question uses the term “distinct”

disproportionate effect, such a doctrine is

which has two possible meanings.

entirely necessary. This is demonstrated

Although I have argued that English

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23

LENT 2020

*Law Tripos, Criminology, Sentencing and the Penal System, Question 3(a).

CRIMINOLOGY, SENTENCING AND THE PENAL SYSTEM "Imagine a state (‘Goodland’) which has adopted a sentencing framework that has proportionate desert as its starting point. A minority of cities within the state of Goodland are currently experiencing outbreaks of knife crime that are causing significant harm to victims, and considerable public anxiety. Taking into account both empirical evidence and relevant theoretical issues, consider whether courts in the affected cities would be justified in passing longer-than-commensurate sentences to reduce knife crime by general deterrence."*

ARJUN DHAR Wrapped

in

questions:

this

(1)

theoretical

scenario

whether

are

two

by

One issue with this here is that it leaves

there

are

principles of proportionality, and in that

the ordering of punishments, the limits to

for

the

sense is wholly incompatible with it. This

them, and the circumstances in which

policy

ordinary proportional punishments may

justifications

proposition

that

longer-than-

commensurate sentences for a specific

discretion

in

sentencing,

allows

for

limited

deviation

from

proportionality.

be deviated from bare. For instance, if

kind of crime (knife crime), and (2)

only some individual offences can have

whether as a matter of penal policy, an

Theoretically,

internally

their penalties elevated, then a sense of

increase in sentences makes sense to

consistent. However, it has other kinds of

ordinal proportionality is lost. In practice,

reduce knife crime.

serious

general

the system appears less coherent and

justifying aims for Von Hirsch’s theory of

more arbitrary to the stakeholders of the

1. Are there theoretical justifications

modern retributivism: (a) censure, and (b)

system (such as ordinary citizens) who

for the proposition?

crime prevention. The deviation is in

cannot intuitively link these increases

The closest theoretical approximation of

answering the questions of who should

easily to empirical changes around them.

such a policy is a variation on a modern

be punished and to what extent. In that,

Secondly, it leaves open the upper and

retributivist theory of punishment, with

it gives primacy to crime prevention

lower limits to punishment. At what point

penalties

their

without, at the same time, compromising

(if any) does a punishment that is greater

proportionality to the crime (as opposed

on the censure function. This means that

than

to a talionic sense of proportionality). It is

punishments

than

unacceptable? If such a point does not

the

necessary may be imposed if they can be

exist, then this theory facilitates a criminal

shown to serve a utilitarian function.

justice system with a Draconian,

determined

inverse

retributivism,

of

by

Morris’s

which

limiting

allows

for

flaws.

this It

that

policy fulfils

are

is the

more

proportionate

become

retributivism

PER INCURIAM

24

LENT 2020

excessive system of penalties. Thirdly, the circumstances in

disproportionately more than it reduces knife crime and is

which such a deviation may be invoked is not clear. Is it

therefore not justifiable.

required that public anxiety be a factor in invoking this deviation? This is an inherently unstable justification in any

Secondly, as Padfield points out, a deterrent measure needs

case, given how misinformed the public tends to be in

to be sufficient only to deter. The lack of upper limits on the

relation to the criminal justice system and its workings. The

sentences imposed indicate the imposition of pain that is

point here is that if the line between a basic retributivist

not only more than commensurate (and therefore

system and the circumstances in which it may be deviated

incompatible with retributivist frameworks) but also more

from for utilitarian objectives is so unclear, then such a

than necessary (and therefore incompatible with utilitarian

system probably fails to achieve either satisfactorily. Cherry-

frameworks) in that it causes more pain to the offender (and

picking aspects of a desert framework and a deterrence

by extension, society) than is required. The overall effect is

framework when it suits us is not the appropriate way to

diminished public utility.

temper the rough edges of a pure form of either framework.

There must be a clear and principled reason for choosing one

Thirdly, deterrence is only effective if the means of detection

over another, with reasons and limits.

and enforcement of sentence are effective. If an offender is confident that she will not be caught for committing a knife

2. Is deterrence justifiable as a matter of penal policy?

crime offence, then regardless of how high the sentence is, it

The first criticism to be made here is of the target of the

is unlikely to deter. This is an important consideration before

deterrence. A general deterrent framework may be effective

extending sentences.

in restraining a majority of people from responding to the basic temptation to litter (for convenience) or shoplift (out of

In conclusion, the approach proposed is plausible, but

necessity or desire), for instance, but there is no indication

requires far more detail. There need to be limits on the scope

that knife crime is the product of temptation in the cities in

of the punishment and principled reasons to evoke a

which it is prevalent. By all indications, it is committed by a

deviation from proportionate desert. The empirical basis of

minority of citizens. For that reason, it is unlikely to be an

such sentences in Goodland need to be considered, also,

effective policy. From a utilitarian perspective, it is likely to

before it can be concluded that it is a justifiable policy.

diminish

the

welfare

of

the

general

population

disproportionat

"Cherry-picking aspects of a desert framework and a deterrence framework when it suits us is not the appropriate way to temper the rough edges of a pure form of either framework."

PER INCURIAM

25

LENT 2020

*Law Tripos 2019, Equity, Question 1.

EQUITY "Vidya wanted to sell her house in Cambridge. She engaged Edgar, an estate agent, to market the property for her. Vidya and Edgar agreed that the house was worth £2 million.

After the house had been on the market for only a few days, Vidya received an offer of £1.8 million from Brian. Vidya sought Edgar’s advice and was surprised when he recommended that she accept the offer. Edgar told Vidya that he now thought house prices in Cambridge were starting to fall. In fact, the real reason Edgar advised Vidya to accept Brian’s offer was because Edgar wanted to secure his sale commission as soon as possible, even if it meant Vidya’s selling for less than the house was truly worth.

Vidya hesitated. Anxious to see a deal go ahead, Edgar telephoned a friend of his, Felicity, and asked her to make an offer on the house of £1.7 million. Edgar knew that Vidya would not accept this offer, but he hoped it would persuade Vidya to accept Brian’s offer. Felicity thought Edgar was probably up to no good, but he reassured her that this was normal practice for estate agents. Felicity duly made an offer of £1.7 million.

The next day Vidya accepted Brian’s offer and sold the house to him for £1.8 million. Vidya paid Edgar a commission of £30,000.

Edgar gave £2,000 of the commission to Felicity as a ‘thank you’. He deposited the remaining £28,000 in his personal bank account at Newnham Bank, which was £3,000 overdrawn at the time. Edgar then withdrew £5,000 and donated the money to a local hospital. The hospital used the money to buy new toys and play equipment for its children’s ward. Edgar used the final £20,000 to purchase shares in TechBoom Ltd. Two days before Edgar telephoned Felicity asking her to make an offer on the house, Felicity had bought a new television for £2,000 using her credit card. She used the £2,000 ‘thank you’ money from Edgar to clear that credit card debt.

The shares in TechBoom Ltd have rocketed in value and are now worth £400,000. House prices in Cambridge have continued to rise and Vidya has found it difficult to find a suitable new house to buy. She has recently discovered the facts as above and is furious.

Advise Vidya."*

JARED KANG PER INCURIAM

26

LENT 2020

E - V Relationship

NB is not mixed, and indeed overdrawn,

V - F Relationship

The relationship between V and E is as

the issues of priority (Re Diplock), or

Before

agent and principal. Although this is an

whether to apply Clayton’s Case or the

dishonest assistance, we should deal with

established

rateable approach (Barlow Clowes) do

category

of

fiduciary

relationships (FHR v Cedar), the term “agent” is sometimes used loosely and may

not

actually

fiduciary

indicate

such

(UBS

relationship

v

Kommunale). Here, as an estate agent,

it is likely that E is a fiduciary since he has to advise V fully in her interests and set aside several of his own interests in doing

so

(Finn

Arklow

(1992);

v

(Homan), Brazil v Durant and Relfo v

deposited into the account, this is the extent of V’s claim against the account and the transactions made therefrom (the

properly advise V as to the value of her house (Aberdeen v Blaikie). The conflict

No facts indicate that F purchased the TV

overdraft,

towards

in expectation of a kickback given that she

debt

did so before E even called. So, no

the

extinguishing

£3,000 this

put

unsecured

is

(Bishopsgate

v

Homan).

recipient so no issue arises. This £3,000

should

elect

for

a

gain-based

(as

of

required. This means F must have had subjective knowledge of the circumstances

"As stated in Foskett, tracing is about

acquire a constructive trust over the

her money was used to purchase them."

not a secret commission or bribe as in

a clear and identifiable pot of assets, V

breach

Saraj).

over them wholly (Foskett) since only

breach of the no-conflict rule. Since it is

a

(Royal Brunei v Tan, Lord Nicholls) is

construed also as a profit made from

FHR, it is proceeds flowing from his

to

against E (Warman v Dwyer; Murad v Al-

the shares and get a proprietary right

Regal (Hastings)) since, although it is

assistance

unlikely that V would succeed. “Dishonesty”

E’s receipt of the commission could be (Boardman;

dishonest

personal claim for an account of profits

£30,000, V will be able to trace into

position

As to the possible claim against F for

thus can only be recovered from a

long as I am correct that V can

fiduciary

backwards tracing is likely possible.

fiduciary duty (Baden Delavaux), it is also

to F to make a false offer to V. No

his

in cases concerning fraud (as Lord Toulson in Brazil notes). Here, nothing suggests this.

“hard-nosed property rights” and as

arises.

transactions are sufficiently linked, typically

separately). As the bank account was in

is especially apparent given his request defences or issue of informed consent

Varsani suggests it is possible if the

£2,000 given to F will be dealt with

claim against the bank as a knowing

commission quickly) and his duty to

the issue of backwards tracing. Although

Since only £28,000 of the £30,000 was

Nothing on the facts suggests a possible

between his own interest (getting the

of

possible to trace into an unsecured debt

loyalty to V.

real and sensible possibility of conflict

possibility

the orthodox position is that it is not

dissipated

rule (Boardman v Phipps) as there is a

the

not arise either.

Maclean). He thus likely owes duties of

Here, the breach is of the no-conflict

addressing

which would, objectively viewed, indicate dishonesty

(Barlow

Clowes

correcting

Twinsectra). Here, F was just a friend, not

herself an estate agent and she was assured of the normalcy of such practice. It is not clear that F’s suspicions generally about E being “up to no good” would be sufficient. As noted in Abou-Ramah, there must be a strong suspicion of a breach (e.g. in

Starglade

–

removing

assets

from

insolvent company). As such, no claim for dishonest assistance likely lies against F.

V can technically trace into the £5,000

Nevertheless,

donated to the hospital for toys and

personal claim for the £2,000 against E.

V

would

still

have

her

equipment (these are certainly traceable proceeds). However, there is little value in

Alternative?

doing so (especially if she does not want

V could also elect for a simple personal

to appear to be the sort of person that

an account of profits for the whole

remedy for equitable compensation (Tang

rips toys out of the hands of sick children).

£30,000, for a constructive trust (AG v

No issue of the Re Diplock inequity

Man Sit) if I am wrong that the £30,000 is

Reid; FHR).

defence arises just because a hospital is

opposed to loss-based) remedy (Tang Min Sit, Lord Nicholls); and rather than

involved (the issue there was narrow and

This gives her a proprietary base upon which she can trace into the various transactions made from E’s account after it was deposited.

Since

we

considered

that

E

is

a

fiduciary, the “capricious” (Foskett, Lord

concerned the improvement of land: Guy’s Hospital).

held on constructive trust (since it is ‘profit’ he would technically have gotten in the ordinary course of the relationship even if the house had been sold at the proper price upon disinterested advice).

The most worthwhile transaction to trace

This is calculated on a ‘but for’ basis

into is the £20,000 shares in TBL. No

(Swindle v Harrison) and would account for

complication arises here either. As stated

her loss (the lower price of the house) and

in Foskett, tracing is about “hard-nosed

possibly consequential losses (given that

property rights” and as long as I am

the housing prices are rising and she

correct that V can acquire a constructive

cannot find a suitable house). This might

trust over the £30,000, V will be able to

be established since E (in breach) told her

trace into the shares and get a proprietary

the housing market was dropping. In any

right over them wholly (Foskett) since

V will obviously want to pursue her

case, this depends on proof – and the value

only her money was used to purchase

she recovers, whether more than the

proprietary claim in equity since she

them. The balance £8,000 of V’s claim can

£400,000 value of the shares she would

(MCCI

be sought as an account of profits against

gain from seeking a proprietary remedy is

E (Warman).

not known.

Millett)

requirement

for

equitable

tracing rules to be engaged (Re Hallett; Re Diplock) is not in issue.

has

an

equitable

interest

Proceeds). Given that the account with

PER INCURIAM

27

LENT 2020

*Law Tripos 2019, Land Law, Question 3.

LAND LAW "Since 1998 Eleanor and Chidi have been joint registered freehold proprietors of Utopia, and idyllic country mansion. In 2005 a friend, Michael, came to live with them at Utopia. Because of the many past favours which Michael had done for them, Eleanor and Chidi orally agreed with Michael that Utopia was thenceforth to be held ‘for the three of us together’.

In June 2017, Michael left on what was expected to be a two-month pilgrimage to Tibet. In July 2017 Eleanor and Chidi, short of cash, jointly mortgaged Utopia by deed to the Arcadia Bank, who registered a legal charge as security for a loan of £200,000; the Arcadia Bank’s valuer noticed Michael’s possessions when inspecting the property but accepted without question Eleanor’s assurance that the owner was ‘just a friend’.

In November 2017, Michael texted Eleanor and Chidi from Tibet to say that he was extending his stay indefinitely. Eleanor and Chidi sent him a Christmas card, which they both signed, adding the postscript, ‘Don’t forget that Utopia is yours as well’.

In March 2018, Eleanor and Chidi received a letter from Michael, informing them that he had decided to become a monk and wanted to realise his share of Utopia straight away and give the proceeds to his Tibetan monastery. He also instructed them to donate all his personal possessions to charity, which they duly did. A month later he was killed by a yak, leaving all his property to the monastery by will.

By August 2018, Eleanor had found a new soulmate and wished to leave Chidi and Utopia.

She and Chidi granted a registered legal charge over Utopia in favour of a Nirvana Bank, making no mention of Michael; part of the £500,000 mortgage loan was used to discharge Arcardia Bank’s mortgage.

Eleanor had disappeared with her half of the loan money and stopped paying her share of the monthly mortgage payments, which Chidi is struggling to cover. He has also received a letter from the monastery in Tibet claiming a beneficial share in utopia and requesting an immediate sale of the property. Chidi, however, is in fragile mental health and reluctant to sell. ‘If I have to leave Utopia’, he tells his therapist, ‘I’ll end up in a bad place’.

Advise Chidi and the Nirvana Bank."*

CHIARA ROHLFS PER INCURIAM

28

LENT 2020

Eleanor (E) and Chidi (C) are joint legal

he will now only have an interest in the

owners, and, given that the property is

right of redemption. Thus, the lack of

domestic (Stack), the presumption will

truth about M being ‘just a friend’ does

be that E and C are joint tenants in

not have any consequences in practice.

equity as well.

Christmas

Card

as

have an interest in 1/3 of the equity of redemption. The part of the mortgage that was used to pay off A’s loan will subrogate it and thus acquire the priority of A.

express

Beneficial share of M:

declaration of trust?

Through their promise M may have

The Christmas card sent to M may be

acquired a beneficial interest in the

used as evidence of a declaration of a

property as well. There was an express

trust which requires the declaration to

"If he is regarded as having acquired a share of the

which

be manifest in writing and signed by

property, the quantification

indicated a clear common intention by

some person able to declare such trust

both joint tenants that M should also

(s.53(1)(b) LPA 1925). Since E and C both

stage will take account of the

have

property.

sign the card and explicitly state that he

whole course of dealings

However, due to his lack of financial or

owns a share, this could be regarded as

otherwise contributions, it may be

an express declaration of a joint tenancy

(Oxley) but it should orient

queried

(Rosset)

representation

an

interest

in

the

itself on the intentions of the

was

in equity for all three, if above no

detrimental. He did not seem to have

severance had taken place. However,

relied on the financial share when

the writing has to have the purpose of

going to Tibet and he did the favours

declaring such a trust. In Stack, a receipt

before such a share was given to him.

was not thought of as evidence enough

But Chun makes clear that for express

of such a declaration as it was only

common intention, there will even be

incidental. The same could be argued

detriment if there was no financial or

here as it is primarily a Christmas card.

other work detriment. This is subject to

However, it is argued that it can be

the de minimis standard from the case

distinguished since the writing here is

where the woman on being told that

explicit and very clear as to the message

she owned a share of the property

it intends to deliver.

1925). In case C defaults on his mortgage,

able to stay in Tibet knowing that he

Letter from M wanting to realise his

his power of sale against C as the

could

share

whether

his

reliance

and

thus

of

the

If the three are considered to be in a

monastery. If he is regarded as having

joint tenancy, the letter from M will

acquired a share of the property, the

most likely act as a severance of his

quantification stage will take account

‘share’ under s.36(2) as it expresses his

of the whole course of dealings (Oxley)

clear intention to sever and realise his

but it should orient itself on the

share

intentions of the parties (Curley). The

effectively communicated and may no

saying of ‘for the three of us together’

longer thus be withdrawn (Kinch v

indicates

Bullard).

contribute

to

an

his

share

the

equal

costs

distribution

of

immediately.

Although

This

s.36(2)

was

LPA

monastery no longer has a claim to the property due to overreaching and C does not seem to have defaulted yet on her payments which means that they do not yet have the power to order sale (s.101 LPA

be interpreted as an intention to turn

legal and beneficial co-owners are the

the joint tenancy into a tenancy in

same, this is not the reading the courts

common between all three in ‘equal

have taken of the section and can thus

shares’. However, it is also possible that

also be used by M who is not a legal

due to the lack of detrimental reliance,

joint tenant. The result would be that he

M has not yet acquired a share and E

has severed his interest of 1/3 of the

and C are still joint equitable owners.

property

tenant

in

mortgagor.

There

seem

to

be

no

overriding interests since only C lives in the property but is himself the mortgagor and the monastery is not in possession.

1925

seems to only apply to cases were the

a

If the analysis above is correct, the

also

shares among all three and might even

as

Requests for sale

N will be able to sell the property under

merely stayed at home. Perhaps he felt realise

parties (Curley)."

common,

whereas the other two remain joint Mortgage to A:

tenants for the rest. If his severance was

Given that E and C are the joint legal

successful, the monastery will be able to

owners, they are free to mortgage the

inherit his 1/3 of the property (Gould v

property to A. The mortgage will have

Kemp).

overreaching effect if M had an interest in the property as it was registered

Effects of the Mortgage from Nirvana

disposition for valuable consideration

Bank (N)

to two trustees (see ss.2(1) and 27 of the

As explained above, their granting of the

Law of Property Act 1925). If M had an equitable interest in the property,

PER INCURIAM

29

legal charge will have overreaching effect. Thus, the monastery will only

LENT 2020

*Law Tripos 2019, Law of Contract, Question 8.

LAW OF CONTRACT "'The real distinction, as it seems to me, is not between a literal and a commercial interpretation. It is between an approach to contractual construction which elucidates the meaning of the words, and an approach which modifies or contradicts the words in pursuit of what appears to a judge to be a reasonable result.’ (LORD SUMPTION, Harris Society Lecture, Oxford, 2017). Discuss."*

TIMOTHY ONG PER INCURIAM

30

LENT 2020

The two approaches outlined by Lord

more sensible. Moreover, this avoids the

Sumption in the quote above relate to

negative connotations of the ‘literalist’

the different views espoused by him

approach, which brings to mind absurd

and

to

workarounds with terms such as ‘no

interpretation of contracts. The former

Lord

Hoffmann

relating

blood will be spilled’ being used as an

view of ‘elucidating the meaning of the

excuse to bury people alive in ancient

words’ forwarded by Lord Sumption

Greece.

favours a bigger emphasis on the

distinction is also important. It helps

words used in the contract, as opposed

point out that there is no unequivocally

to a more purposive approach favoured

‘commercial’

by Lord Hoffmann which takes into

contract, that a purposive interpretation

account contextual considerations. I

will

consider (1) the extent to which case

underlying

law reflects these two views and (2) the

common sense’ as an interpretive guide

normative

–

desirability

of

each

approach.

Analytically,

reach.

Sumption’s

interpretation This

hints

issue

contracts

at

with

will

of a

a

bigger

‘commercial

often

have

one

interpretation that favours one party commercially, and another that favours

Current Jurisprudence

the other party. Barring the clearest

As it stands following ICS, a more

cases of ‘necessity’, it will be equivocal

purposive approach to interpretation

which is the ‘commercial’ application.

falls

to

be

considered.

Several

modification

through

contextual

consideration. In his own words ‘no one has ever made an acontextual statement’.

This is supported by linguistic philosophy.

Kramer argues that words do not have meaning in a vacuum, and any attempt to understand them involves unspoken assumptions about the knowledge of the speaker

and

recipient.

Wittgenstein’s

example

Kramer of

cites

‘teaching

children to play a game’, saying that one would not teach them to gamble or do dangerous

activities,

as

should

be

understood from the context – even though the dictionary definition of ‘game’ is

susceptible

to

a

whole

range

of

meanings.

"Ultimately the question is whether purposive interpretation should be part

principles in ICS reflect this, including

These doubts raised implicitly by Lord

Principle 2 of taking into account the

Sumption have been somewhat taken

of a bigger toolkit for judges to

‘factual matrix’ of the knowledge of the

to heed in Arnold v Britton, where the

use."

parties at the time of contracting, and

court reaffirmed the importance of the

Principle 3, holding that meaning is not

primary

a matter of dictionaries, and that there

document, pointing out that there is a

must

high bar to corrective interpretation

be

contextual

considerations

text

of

the

contractual

being exercised. Arguably, the current

involved.

jurisprudence strikes a balance that is

Is Sumption’s charge that this ‘modifies or contradicts’ words valid? Arguably so, especially in cases such as Chartbrook, where the CA gave the clause its normal meaning according to the rules of syntax,

This doctrine holds purpose at its

still in favour of Hoffmann’s purposive

only to be overruled in the HL. In ICS

highest through the application of

approach, but with more qualification.

itself, Lord Lloyd lamented that Lord

corrective

interpretation

–

Hoffmann’s approach did ‘violence’ to the

where

something has gone wrong with the

Normative Desirability

words of the contract. Yet this argument

language, courts can interpret the

Which view, then, should be preferred?

is not fatal. Ultimately the question is

contract in a way that accords with

There

commercial

favouring Lord Sumption’s view. First,

common

sense.

An

are

HL’s

commercial certainty when purposive

not

interpreting

is

implications

to

there

in

negative

advantages

illustration of this in Chartbrook is the approach

are

several

carried

out

–

to this

whether purposive interpretation should be part of a bigger toolkit for judges to use. Even if there are doubts about the extent of its imposition, these can be solved by imposing a higher threshold to

provisions regarding ARP according to

interpretation

normal rules of syntax, in favour of an

creates more litigation as parties expand

understanding that was commercially

the ‘factual matrix’ in order to make

Arnold v Britton, rather than pursuing a

more viable.

claims more favourable, although this

purely literalist approach instead.

using

corrective

interpretation,

as

in

can be curtailed somewhat by proper The limits of purposive interpretation in

case management. Secondly, it gives the

status quo lie in the exclusion of

final text of the document more respect

evidence

subjective

– parties would have been intentional in

intentions, on the basis that such

clarifying what they want on the final

intentions are ‘drenched in subjectivity’,

written contract, especially if they have

and

sought legal advice.

of

cannot

parties’

be

relied

upon,

even

though such evidence can be taken into account by courts for rectification.

However, Lord Hoffmann’s approach should

be

ultimately

preferred.

As

Why then, does Sumption say that

Hoffmann notes, the point is not about

distinction is not a literal/commercial

whether contextual considerations are

one? First, there is rhetorical advantage

solely determinative and override the

in painting his view as one that does

written contract, but about whether

not “contradict” words, making it seem

there is scope for reasonable

PER INCURIAM

31

LENT 2020