Per Incuriam Lent 2020

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

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

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

Per Incuriam Per Incuriam

Per Incuriam

President 2019-2020

Per Incuriam

Per Incuriam

Per Incuriam, Per Incuriam

Editor-in-Chief

I. Institutional Capacity: More than Words

[1]

[2] [3] [4] Prosecutor v. Gaddafi and Al-Senussi, [5] [6] [7] See

also

International Covenant on Civil and Political Rights International Covenant on

Economic,

Social,

and

Cultural

Rights

Prosecutor v. Saif Al-Islam Gaddafi and Abdullah AlSenussi

II.

Political

Will:

Fruition

through

Volition

[8]

See

Closing

remarks

of

the

President

of

the

Simon Rights,

Constitutional

Commission

at

the

final

session,

Martial Law in Numbers: A Martial Law Infographic Martial Law in Numbers: A Martial Law Infographic [9] [10] See

[11] [12] [13]Â [14] [15]Â [16] [17] [18] [19]

[20] [21] [22] [23] [24] Prosecutor v. Gaddafi and Al-Senussi [25] Simon v Commission on Human Rights

v.

Commission

on

Human

Bibliography

Simon faux

per se.

Conclusion

Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi

Simon v. Commission on Human Rights

[26] [27] [28] [29] [30]

INTRODUCTION

The Limits of International Law.

ASSESSING ASSUMPTIONS

[1]

Politics Among Nations: The Struggle for Power and Peace

[2]

The Limits of International Law

[3] [4]

The Function of Law in the International Community

[5] [6] [7]

History, Politics and Law: Thinking through the International

Lotus

de

facto International Court of Justice’s

(

Gabcikovo-Nagymaros

Cambridge Analytica

ACCOUNTING FOR IL'S CORE FUNCTIONS

[8]

[9]

[10]

[11]

[12]

Gabčikovo-Nagymaros Project (Hungary v

Slovakia)

Gabčikovo-Nagymaros Project

[13] Gabčikovo-Nagymaros Project, [14] Gabčikovo-Nagymaros Project, [15] [16]

Lotus

[17] The Will to Knowledge: The History of Sexuality [18]

LIMITED PRESCRIPTIVENESS

CONCLUSION

realpolitik cum grano salis

[19]

[21] [22] [23]

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

"Did the Roman jurists have a satisfactory approach to causation in the lex Aquilia?"*

"More attractive is Sirks' solution, that Julian wanted to take a bold step applying Stoic philosophy." lex Aquilia. lex Aquilia

Variance

culpa

culpa

culpa

Culpa

exanimaverit

culpa

Iulianus ait

veteres

culpa

alios ictus

*Law Tripos 2019, Constitutional Law, Question 1.

"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?"*

Anisminic

Constitutional foundations of judicial review

Bancoult

"The common law constitutionalist view also not only allows for an important role of a substantive rule of law, but indeed necessitates it."

Pierson

Pierson

AXA

Conclusion

Implications for the rule of law and its status

*Law Tripos 2019, Criminal Law, Question 3.

"Does English criminal law have a distinct doctrine of ‘joint enterprise’ liability? Does it need one?"*

A, B, C, D Jogee

Chan Wing Siu

Jogee

Jogee

Jogee

Jogee Jogee Jogee

Chan Wing Siu

Jogee

Chan Wing Siu Jogee Jogee

Jogee

Jogee

Jogee

Jogee

"Moreover, retaining joint enterprise is necessary as it maintains the coherence over the theoretical jurisprudence of secondary liability."

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

"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."*

1. Are there theoretical justifications for the proposition?

more necessary

than

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

"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."

*Law Tripos 2019, Equity, Question 1.

"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."*

V - F Relationship

E - V Relationship Re Diplock Clayton’s Case Barlow Clowes

FHR v Cedar Homan

UBS

Brazil v Durant

Relfo v

Varsani

v

Kommunale Brazil

Arklow

v

Maclean

Bishopsgate

v

Homan

Baden Delavaux

Boardman v Phipps Warman v Dwyer; Murad v Al-

Royal Brunei v Tan

Saraj)

"As stated in Foskett, tracing is about

Aberdeen v Blaikie

“hard-nosed property rights” and as

Barlow

Clowes

Twinsectra

long as I am correct that V can acquire a constructive trust over the £30,000, V will be able to trace into the shares and get a proprietary right Boardman; Regal (Hastings)

over them wholly (Foskett) since only her money was used to purchase

Abou-Ramah Starglade

them."

FHR

Alternative?

Tang Min Sit,

Tang Man Sit

AG v

Re Diplock

Reid; FHR

Guy’s Hospital

Swindle v Harrison Foskett

Foskett Re Hallett; Re Diplock

Foskett

MCCI Proceeds

Warman

*Law Tripos 2019, Land Law, Question 3.

"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."*

Stack

Christmas Beneficial share of M:

Card

as

express

declaration of trust?

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

Rosset

stage will take account of the whole course of dealings (Oxley) but it should orient itself on the intentions of the parties (Curley)."

Stack

Requests for sale

Chun

Letter from M wanting to realise his share

Oxley Curley inch v Bullard

Mortgage to A: Gould v Kemp) Effects of the Mortgage from Nirvana Bank (N)

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

"'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."*

Current Jurisprudence

"Ultimately the question is

ICS

whether purposive interpretation should be part

ICS

of a bigger toolkit for judges to use."

Arnold v Britton

Chartbrook

ICS

Normative Desirability

Chartbrook

Arnold v Britton