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ARTICLES FROM CAMBRIDGE STUDENTS

FIRST CLASS TRIPOS ESSAYS

President’s

Foreword

Dear Readers,

Welcome back to Per Incuriam, the Lent 2026 edition! My sincerest congratulations to the Per Incuriam Editorial team for this successful release Thank you to Editor-in-Chief Chloe Levieux and Deputy Editors Kai Zhen Tek and Dawn Chow for their careful work throughout term, evaluating essays and articles to arrange a well-rounded issue. Moreover, I am grateful to our Publicity Team, Jessie Wong, Nitha Cherian, and Mia Ven, for their incredible work designing this edition to bring it to life

Per Incuriam remains an unmatched avenue through which CULS provides our members with model academic essays and student-written articles on topical subjects. I would like to thank the generous contributors to this edition, who have made it possible to put together an insightful and thoughtprovoking publication which will inspire readers both academically and beyond

This edition also includes the winning entry to our Winter Essay Competition, sponsored by One Essex Court, on the much-debated question of whether English contract law should introduce a doctrine of good faith

Lent has been another remarkable term for CULS, marking the end of the current Committee’s tenure In particular, we had the pleasure of hosting the Rt Hon Lord Richards, Justice of the Supreme Court, to speak with our Members as part of our Speakers programme: the event was a meaningful celebration of a 52-year career in light of his upcoming retirement (listen on our Podcast!). Another unforgettable event was our second Dinner at Lincoln’s Inn with the Oxford Law Society, which we hope will establish a new communal tradition The Alumni Dinner was a wonderful night of conversation between our members and distinguished alumni, including our keynote speaker, Lord Justice of Appeal Sir Stephen Males With our weekly welfare drop-ins, Non-Law and D&I Socials, and several member discounts with iconic Cambridge institutions, we continued providing a supportive environment for our members.

We hope that the 2025-26 CULS year was as rewarding for you as it was for us We wish everyone the best for Tripos examinations, and a restful Easter break ahead – with this timely Per Incuriam edition providing welcome guidance!

See you in Easter!

editor’s welcome

Dear Readers,

Welcome to Easter! As supervisions fizzle out and exams loom ahead, we hope that Per Incuriam remains a valuable resource for your revision and general legal interest. This Lent Edition is particularly special to me, as it marks the end of my three years at the magazine and at Cambridge It is rare to be given the opportunity to grow within the same subcommittee over the course of University, and I am incredibly grateful to the different teams I have worked with and to CULS as a whole for helping me develop as an editor, a student, and a person I wish the new Editor-inChief all the best, and I cannot wait to see how Per Incuriam continues to evolve

This edition is also notable in that it features the winning submission from our inaugural essay competition, which was kindly sponsored by One Essex Court and judged by Darren Peterson Tom Harrington’s reasoned argument in favour of the continual development of the doctrine of good faith in English contract law stood out for its clarity and use of sources It has been very exciting to work with our President, Jiwon Heo, to create a new platform for students to critically engage with the law and be recognised for their excellent writing

We have featured two articles this term that question whether existing legal frameworks are robust enough to address mounting challenges in their respective areas Dimitar Bouhlarski argues that English law, developed with human decision-making in mind, will struggle to accommodate the problems posed by agentic artificial intelligence

Chloe Levieux, Kai Zhen Tek, Dawn Chow

PerIncuriamSubcommittee2025-26

Through the lenses of contract, tort, and unjust enrichment, Dimitar illustrates how, until the law catches up with the concept of non-human autonomous actors, legal uncertainty and a gap in remedies for AI-caused harms may persist Looking at the 1948 Genocide Convention, Esmée Cadogan critically challenges the traditionally restrictive mens rea of genocide. Esmée submits that narrow judicial interpretations of the ‘dolus specialis’ have hindered the Convention’s aim of protecting groups, and offers alternative understandings of the text to better support the prevention and prosecution of genocide

Very little could have been achieved this year without the dedication of our Deputy Editors, Dawn Chow and Kai Zhen Tek, as well as our Freshers’ Representative, Giancarlo Mempouo It has been a joy to work with everyone to complete our final edition

I would also like to thank our article contributors, Dimitar Bouhlarski and Esmée Cadogan; our Tripos Essay contributors, Navamee Nair, Janice Samuel, Kalina Stoyanova, Stephanie Tee, Alldon Garren Tan, Kate Lin, Chloe Saw, and Gianna Lai; as well as the Executive Committee and the Publicity Team for their continued support.

If you are interested in contributing to Per Incuriam, please email us at perinc@culsorguk In addition to the opportunity to have your work published, essay contributors receive a monetary award. We welcome submissions on a wide range of legal topics, so please feel free to pitch your ideas to us and keep an eye out for contributor applications for next year’s Michaelmas edition

Chloe Levieux

PerIncuriamEditor-in-Chief2025-26

Jiwon Heo

Editors’ Welcome

Chloe Levieux

Tom Harrington

Alldon Garren Tan

Kate Lin

Chloe Saw

Gianna Lai

Dimitar Bouhlarski

Navamee Nair

Janice Samuel

Kalina Stoyanova

Stephanie

‘Should the concept of “good faith” have any role to play in English contract law?’

Good faith in English and Welsh contract law has long caused controversy [1] However, to question whether it should have a role to play in English contract law evades the acknowledgement of the role it already has. Consequently, as this paper will argue, the issue in English contract law is not whether good faith should have a role in English contract law, but whether English contract law ought to accept a more significant role for good faith. In this paper I will argue that good faith requirements not only have a distinctive and important role in English contract law, but that this role remains relatively embryonic: in a manner characteristic of the common law, it is the early stage of what has the potential to become a more significant pillar of English contract law. The potential development of the law of contract is however a speculative endeavour, but this paper will argue that it warrants fruitful exploration but must ultimately constrain itself to a slower developmental process.

There will be four stages of analysis in this paper:

I. The existing definition and role of good faith in English contract law

II. Objections to good faith.

III. Distinctions between English good faith and good faith in other jurisdictions.

IV The future of good faith

(I) The existing role of good faith in English contract law.

The current role of good faith stems from Leggatt J’s decision in Yam Seng Pte v ITC where he described the English hostility to good faith as ‘swimming against the tide’. [2] He introduced a concept of good faith implied by law to so called ‘relational’ contracts, based on a principle of necessary reciprocity.

This decision is not without its controversy [3] but has shaped the current position of good faith in English contract law

Leggatt J’s good faith is not entirely unheard of in English contract The slightly more extreme version of ‘utmost’ good faith featured in the Marine Insurance Act 1906, and Lord Mansfield created a requirement of good faith that ‘forbids either party by concealing what he privately knows, to draw the other into a bargain’[4] It even sees itself echoed in discussions on express contractual discretion in the Supreme Court: that discretion must be ‘exercised honestly and in good faith but [ ] not be exercised arbitrarily, capriciously or unreasonably’.[5] In this context, it seems unusual that good faith has received such hostility, however as detailed in the next section of this paper, much of the argument, as this paper argues, stems from a fear of ambiguity, which is ultimately misplaced

(II) Objections to good faith.

Moore-Bick LJ suggested that there is ‘a real danger that if a general principle of good faith were established it would be invoked as often to undermine as to support the terms in which the parties have reached agreement’[6] This sums up the primary complaint: that an implied term of good faith is too ambiguous, relying on what may be an unwritten matrix of circumstances, not easily ascertainable to the court

This throws up a number of issues relating to judicial interpretation of good faith; certainty of contract; and (relatedly to the other points) freedom of contract I will address each of these in turn.

(a) Judicial interpretation of ‘good faith’

Ambiguity over judicial interpretation appears to be the central concern Lord Neuberger had when deciding in Arnold v Britton that courts should avoid prioritising commercial common sense ‘to undervalue the importance of the language of the provision which is to be construed’.[7] Primacy was given to the wording of the contract rather than the intention of the parties In relation to good faith, the fear is that courts may use the protean language of good faith as a way to give effect to otherwise insensible contracts This risk is further highlighted by the somewhat vague notion of ‘relational contracts’[8] Professor Jonathan Morgan has suggested it is so vague as to render it ‘impossible to derive a workable legal category of “relational contracts”’

However I find this argument unconvincing as, in both Yam Seng and other cases,[9] as well as extra-judicial commentary, the scope of ‘relational contracts’ has been quite clearly defined by Leggat J [10] and Lord Steyn more in the context of ‘general default rules’ in Hyman.[11]

Lord Steyn has also offered some convincing commentary on the distinction between ‘objective’ and ‘subjective’ good faith.[12] The former being a more concretely ascertainable factor that the latter, and therefore the metric by which courts can establish good faith Which reflects a use of the term that ‘judges in the greater part of the industrialised world usually have no great difficulty in identifying a case of bad faith’ [13]

(b) Certainty of contract.

The other objection, noted by Mary Arden, [14] is that good faith requirements create uncertainty, not just in the interpretation of good faith, but in the interpretation of the contract by the parties I respectfully submit that this controversy is not unique to good faith, but to implied terms more generally. Express good faith requirements are not controversial, given the parties (presumably) intended for those terms to be in the contract Implied terms consequently appear more intrusive, and if applied risk creating a contract that neither party ever truly envisioned

Lord Denning MR experimented with this line of reasoning Butler Machine Tool, seeking to find a ‘harmonious solution’ [15] between the parties However, the primary tension here is whether the contract ought to be interpreted by reference to the intentions of the parties or by the wording alone[16] The former is too vague and risks utilising subjective evidence, the latter potentially draconian This tension, highlighted in Arnold has resulted in the current orthodoxy, where ‘relevant circumstances’ may be utilised, but only as a subordinate method to the objective meaning of the contract[17] This sets a clear limit to the scope of good faith, as acknowledged by Leggatt J: good faith may only relate to performance, not to negotiations (discussed further below as the gulf between common and civil law good faith) Consequently, certainty is retained, and good faith limited, but by avoiding the intrusive almost inquisitorial methods outlined in Butler Machine Tool. However, I argue in agreement with Leggatt J, that restraining good faith does not eliminate it but simply sets a boundary, thus retaining its place in English contract law.

The final objection discussed in this paper is the risk that good faith poses to freedom of contract Lord Ackner hinted at this objection when remarking that good faith was ‘inherently repugnant to the adversarial position of the parties when involved in negotiations’[18]

However, this argument appears to hinge on a conception of good faith that is general and overriding In other words, a duty that prevents parties from agreeing terms that might disadvantage the other party. This is understandably difficult to square with English contract law, but is a conflation, I argue, of specific versus general ideas of good faith Good faith is not, as clearly stated in Yam Seng, an overriding principle of contract law, but limited in scope to a particular type of contract. Lord Ackner’s fear appears to be of a general principle, but the effect of this fear was to entrench a ‘law of freedom to act in accordance with naked self-interest’[19] Good faith enables courts to reach fairer outcomes for contracts based on cooperation and mutual endeavours. Nevertheless, Ackner’s position does not seem to trouble the current orthodoxy post Yam Seng but is worth discussing further to clearly distinguish between the two meanings.

(III) Distinctions between English good faith and good faith in other jurisdictions.

Lord Ackner’s general principle appears to be inspired by the civil law duty of good faith

The often-quoted example is the French Civil Code that gives central significance to good faith: contracts ‘doivent êtres negociés, formés et exécutés de bonne foi Cette disposition est d’ordre public’[20] A requirement for good faith in both the ‘negotiation, formation, and execution’ of the contract As discussed above, this is not the case in English law However, there are some leanings towards a more general principle in other common law jurisdictions In Canada, good faith is held as a ‘general organising principle’ to prevent parties from undermining the performance of the contract[21] However this tendency does not apply uniformly, as both the US and Australia have confined themselves to quasiEnglish restrictions to good faith in performance and conclusion alone[22] John Cartwright has written extensively on this distinction, suggesting that comparative good faith, although helpful, ought not to be applied rashly, noting in particular that reasoning from general principles in particular cases is more the technique of the civil lawyer than the common lawyer’[23]

It can therefore be seen that many of the apparent pitfalls of good faith hinge on whether lawyers are discussing civilian ideas of good faith (general principle) or common law ideas (specific rules)

The role that good faith has in English contract law has been the focus of this paper, but I now turn to the role it should have In other words, the continual development of the doctrine However, I wish to draw attention first to older ideas of good faith, the more extreme notion of ‘utmost’ good faith, formerly found in the Marine Insurance Act 1906 ‘Utmost good faith’ was a requirement that both parties make disclosures [25] (akin to the ‘putting your cards on the table’ that Bingham warned of in Interfoto)[26] This radical formation is the closest good faith appears to have come to a good faith requirement in negotiations, but for the present serves to demonstrate that English law is no stranger to radical conceptions of good faith.

This paper argues that the modern law of contract should not move so radically. Lady Arden has suggested that such radical steps are potentially fruitful areas of exploration for law makers rather than courts,[27] however I respectfully submit that the English common law approach, although slow, has created a functional and pragmatic conception of good faith, which may be hindered by legislative interference.

Footnotes

[1] For the sake of brevity, I will use ‘English contract law’ instead of ‘English and Welsh’ contract law

[2] Yam Seng Pte v International Trade Corporation Ltd [2013] 1 CLC 662 [para 125]

[3] See Lord Ackner ‘[good faith is] inherently repugnant to the adversarial position of the parties when involved in negotiations’ in Walford v Miles [1992] 2 AC 128 [p 138]; also Moore-Bick LJ in MSC Mediterranean Shipping Co v Cottonex [para 45]

[4] Carter v Boehm (1766) 97 ER 1162 [p 1164]

[5] Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) [1993] 1 Lloyd's Rep 397, [404]

[6] MSC Mediterranean Shipping Co v Cottonex [45]

[7] Arnold v Britton [2015] UKSC 36 [para 17]

[8] Jonathan Morgan, Great Debates in Contract law, (3rd ed, Macmillan 2020) [p139]

[9] For example, Compound Photonics Group Ltd, Re [2022] EWCA Civ 1371

[10] Mr Justice Leggatt, ‘Contractual Duties of Good Faith' (lecture to the Commercial Bar Association, 2016) [20]-[30]

[11] Equitable Life Assurance Society v Hyman [2002] AC 408, [458-9] (Lord Steyn)

[12] Johan Steyn ‘Fulfilling the reasonable expectations of honest men’ LQR 1997, 113(Jul), 433-442 [p 438]

[13] Ibid [p 438]

[14] Mary Arden, ‘Coming to Terms with Good Faith’ in Mary Arden, Common Law and Modern Society: Keeping Pace with Change (OUP 2015).

[15] Butler Machine Tool Co. Ltd. v Ex-Cell-O Corporation (England) Ltd. [1979] 1 W.L.R. 401 [p. 405].

[16] Contextual facts are a settled matter: Investors Compensation Scheme v West Bromwich Building Society [1998] 1 W.L.R. 896

[17] Arnold v Britton [2015] UKSC 36 [para 17].

[18] [1992] 2 A.C. 128 [p. 138].

[19] Mary Arden, ‘Coming to Terms with Good Faith’ in Mary Arden, Common Law and Modern Society: Keeping Pace with Change (OUP 2015) [p 62]

[20] Civil Code, Article 1104

[21] Bhasin v Hrynew [2014] 3 SCR 494 (Supreme Court of Canada) [para 33]

[22] Restatement (Second) of Contracts § 205 and Bropho v Human rights & Equal Opportunity Commission [2002] FCA 1510 [para 25] respectively

[23] John Cartwright, ‘Good Faith in English Contract Law: Lessons from Comparative Law?’ [p 30]

[24] Interfoto Picture Library v Stiletto Visual Programmes [1988] 2 WLR 615 [p 439]

[25] Marine Insurance Act 1906 ss 18-20, omitted by the Insurance Act 2015 s 14(2) [26] [1988] 2 WLR 615 [p 439]

[27] Mary Arden, ‘Coming to Terms with Good Faith’ in Mary Arden, Common Law and Modern Society: Keeping Pace with Change (OUP 2015)

[28] Mr Justice Leggatt, ‘Contractual Duties of Good Faith' (lecture to the Commercial Bar Association, 2016) [44]-[56]

[29] Mr Justice Steyn, ‘The Role of Good Faith and Fair Dealing in Contract Law: A Hair-Shirt Philosophy?’ Denning LJ 1991, 131-141 [p 133]

[30] New Zealand Shipping Co Ltd v A M Satherwaite & Co Ltd (The Eurymedon) [1975] AC 154 [p 167]

[31] Mr Justice Steyn, ‘The Role of Good Faith and Fair Dealing in Contract Law: A Hair-Shirt Philosophy?’ Denning LJ 1991, 131-141 [p 132]

When AI Acts for Us: Agentic AI and the Limits of English Law

Dimitar Bouhlarski

Introduction

In January 2026, the UK Information Commissioner’s Office suggested that, within five years, consumers could have personal Artificial Intelligence (‘AI’) agents paying for goods, booking flights, and managing household finances on their behalf.[1] The suggestion reflects a technological shift already well underway: from AI that responds to prompts, to agentic AI (AI agents), a category of systems that pursue goals, plan, and execute sequences of decisions with minimal human oversight.[2] The UK Jurisdiction Taskforce (‘UKJT’) published a draft Legal Statement on liability for AI harms, arguing that existing principles are broadly sufficient to address them: AI operates as a tool under the control of those who deploy it, and liability attaches to legal persons through established doctrines[3] While its analysis is defensible for conventional AI systems that produce outputs based on specific instructions, it becomes strained for AI agents that make decisions that a deployer neither specified nor foresaw

“There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious default of one party and if the consequence of its not being done is serious prejudice to another. The principle that a State cannot rely on its own wrongful conduct to avoid the consequences of its international obligations is capable of novel applications, and circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts”

This article will show that agentic AI exposes structural difficulties across contract, tort, and unjust enrichment In contract, the question is whether an AI agent’s transactions are attributable to its deployer, and, on what basis, a binding agreement may arise. In tort, the question is who bears responsibility when the cause of harm is an AI agent rather than a human. In unjust enrichment, the question is whether a deployer can recover the value transferred by an AI agent that acts beyond its instructions. The cumulative effect is that current English law struggles to accommodate autonomous systems effectively.

Contract

Where an AI agent is involved in forming an agreement, the question of whether a binding contract exists must be resolved. The UKJT addresses how contracts within the AI supply chain allocate liability between developers, deployers, and users through established mechanisms such as warranties and indemnities, and treats the contractual chain as the primary framework governing liability for AIcaused loss.

The following article contains the sole opinion of the writer and does not represent the opinion of CULS, the University nor our Sponsors

Yet, the question of how those contracts are formed is unexplored Agentic AI is likely to not only operate within existing contractual relationships; it would attempt to create new ones, entering into transactions with parties who have no agreement with anyone in the supply chain If agentic AI undermines the formation of the very contracts on which the UKJT’s analysis depends, that analysis is itself unstable

An AI agent cannot form a contract in its own right. It has no legal personality under English law, a position the UKJT confirms, and therefore cannot hold rights or assume obligations. The Law Commission’s 2021 advice on smart contracts concluded that automated systems could form valid contracts without legislative reform, but it addressed deterministic code (software that always produces the same output from the same input) that performs obligations already defined by a human[4] That analysis does not extend to agentic AI, which pursues open-ended goals through adaptive reasoning and may enter transactions that its deployer neither specified nor foresaw[5] Any agreement must therefore be between the deployer and the third party Whether a contract has been formed in any given case likely depends on whether the AI’s acts are attributable to the deployer, which is a question of authority.

The recent case of RTI Ltd v MUR Shipping BV[1] offers a valuable insight into core values in the law of contract through the lens of force majeure and “reasonable endeavours” clauses. However, although it attempts to uphold the sanctity of the parties’ legally binding agreement, the case raises potential issues for the law of currency, the effects of force majeure events and the interpretation of contractual terms.

Under Freeman & Lockyer v Buckhurst Park Properties, a principal may be bound by the acts of an unauthorised agent where, among other conditions, a representation of authority was made to the third party by someone with actual authority to make such a representation, and the third party was induced by that representation to enter the contract.[6] Where a retailer deploys an AI agent to negotiate with suppliers, the act of deployment may constitute a representation by conduct that the agent is authorised to transact on the retailer’s behalf.[7] But apparent authority is limited to the scope of authority that the principal has represented the agent as possessing. Unlike an Electronic Data Interchange system, which executes pre-defined transactions a principal has already decided upon, an agentic system that autonomously negotiates a discount, factoring in variables no human specified, is making a decision of its own[8] Consequently, the scope of the representation, and therefore of any resulting contract formed by an AI agent, is likely to remain uncertain

That uncertainty is deepened by existing authorities offering competing analogies for how apparent authority may apply to agentic AI Armagas v Mundogas held that a principal is not bound where the third party relied on the agent’s own representation of authority rather than on any conduct of the principal[9]

Where an AI agent independently exceeds anything its deployer authorised, and the third party’s only basis for believing the AI was authorised is the AI itself, Armagas suggests the deployer would not be bound, and, since the AI has no legal personality, no contract would exist at all. Conversely, First Energy v Hungarian International Bank held that a senior bank manager had apparent authority to communicate head office approval of a loan facility he had no actual authority to grant, solely by virtue of his position[10] If deploying an AI agent to transact on one’s behalf, whether in a commercial, consumer, or professional context, is analogous to placing an individual in a role from which third parties would reasonably infer authority, that reasoning could extend the deployer’s liability well beyond any transaction they specifically authorised.[11] Which analogy a court prefers for agentic AI may determine whether the deployer is contractually bound[12]

Regardless of how the authority question is resolved, either outcome may cause harm. If a contract exists, the deployer is bound by terms they never reviewed and may have rejected; they assume an open-ended commercial risk that cannot be assessed in advance If a contract does not exist, the third party who transacted in good faith is left without a counterparty, and unlike when dealing with a human agent who exceeds authority, likely cannot claim for breach of warranty of authority, as that claim lies against the agent personally, and an AI is not a legal person.[13]

The difficulty is compounded when both parties deploy AI agents that transact with each other. Apparent authority requires that the third party relied on the principal’s representation, and where the third party on each side is itself an AI, the doctrine’s reliance element cannot be satisfied by either deployer and both deployers of agentic AI may be harmed.

Tort

Where the contractual position is uncertain, a claimant harmed by an AI agent’s actions might turn to tort for redress For conventional AI systems, where a human selects a tool, applies it, and reviews its output, the UKJT’s analysis of negligence is broadly correct[14] Indeed, Professor Chris Reed argued that English law’s existing frameworks for attributing responsibility to those who deploy autonomous entities are already sufficient to hold deployers liable for agentic AI, even at higher levels of autonomy.[15] However, the UKJT itself acknowledges that courts may struggle to impose liability within existing tort law norms as autonomy increases Agentic AI sits at the level of autonomy where it can cause harm without any human being at fault

To succeed in negligence, the claimant must establish, among other things, that the defendant owed a duty of care, breached that duty by falling below the standard of reasonable care (or professional standard), and that the breach caused the harm.[16]

The claim could technically be brought against any party in the AI agent supply chain, from the foundation model developer to the deployer But a developer who properly trained and tested a model, and a deployer who chose a reputable system, followed industry guidance, set appropriate parameters, and maintained reasonable oversight, may each have met the standard of care, even if the AI agent’s actions were harmful In such cases, the harm results not from any failure on the deployer’s part but from the AI’s own autonomous reasoning. Courts could hold that deploying autonomous systems is itself a failure of care, but such a standard risks being so restrictive as to significantly limit the technology’s utility.

Causation presents further difficulty

The claimant must show that the harm would not have occurred ‘but for’ the deployer’s breach.[17] Agentic systems operate through extended chains of autonomous reasoning, and the UKJT acknowledges that this opacity makes it difficult to determine why a particular outcome occurred. It suggests that the Fairchild v Glenhaven exception, which allows causation to be established where a defendant’s breach materially increased the risk of harm but scientific uncertainty makes it impossible to prove the precise causal link, could provide a route for claimants facing similar evidential difficulties with AI[18] But Fairchild presupposes that each defendant breached a duty in the first place.

Where every party in the supply chain has acted reasonably and the harm results solely from the AI’s autonomous decision-making, there is no breach anywhere in the chain for the exception to attach to. The UKJT accepts that, absent negligence, the risk of loss lies where it falls. For agentic AI, that default may become the norm instead of the exception.

Where negligence fails, English tort law does offer routes to no-fault recovery, but none that extend naturally to agentic AI. Vicarious liability allows an employer to be held liable for an employee’s tort, even where the employer is not personally at fault, provided the tort was sufficiently connected to the employment.[19] It is therefore confined to employment and analogous relationships It offers little when a consumer’s personal AI agent causes harm, which is likely to be the most common context in which agentic AI operates Even within employment, the doctrine requires a tortfeasor; an AI agent lacks legal personhood and cannot commit a tort The UKJT suggests that vicarious liability can still operate where a human employee negligently uses AI, but when AI replaces the employee rather than merely assisting them, no such person remains.

Strict product liability under the Consumer Protection Act 1987 provides no remedy either Its regime extends only to defective ‘products’, and standalone AI software not embedded in physical goods is unlikely to qualify.

HEven if future reform brings software within the regime, an agentic system that works as designed but causes harm through its own autonomous reasoning may not be defective at all. Reed identifies a broader common law principle across strict liability frameworks, including liability for the keepers of animals: that English law holds responsible those best placed to anticipate and control the risks posed by autonomous entities, and argues that this is sufficient for agentic AI. But agentic AI undermines that A keeper of a dangerous animal knows the nature of the risk, even if they cannot prevent it from materialising A deployer of an AI agent may not be able to anticipate all risks, since agentic AI may be deployed to handle matters that exceed the deployer’s expertise

Unjust Enrichment

Where an AI agent disposes of its deployer’s resources, paying for goods, booking services, or transferring funds, the deployer may seek to recover that value from the recipient through a claim in unjust enrichment. Unjust enrichment does not address the full range of harms agentic AI may cause It cannot compensate for personal injury or consequential loss; it operates only to reverse transfers of value that should not have occurred[20] A claim requires the claimant to show that the defendant was enriched, at the claimant’s expense, that a recognised unjust factor is present, and there is no defence[21]

The availability of mistake as an unjust factor depends on the nature of the AI’s departure from its deployer’s intentions Where the deployer gives a specific instruction, and the AI does something materially different, e.g. instructing it to send £10 and it sends £100, the deployer may be treated as having laboured under a ‘causative mistake’ as to the nature of the transaction, and a court would likely grant restitution on orthodox grounds [22] Difficulty arises where the deployer’s instructions are broad, and the AI exercises autonomous judgment within them. If a deployer instructs an AI agent to manage household spending within a budget, and the agent commits to a service contract the deployer would not have chosen, that is arguably not a mistake but a misprediction about how the agent would exercise its judgment, which under Pitt v Holt does not ground restitution.[23] In many such cases, the deployer will not have turned their mind to the specific transaction at all, which amounts to mere ignorance, equally insufficient under Pitt Although courts retain the flexibility to infer a ‘tacit assumption’ (an unstated belief the claimant demonstrably held about the transaction, even if never expressed) from the evidence, it is far from clear that a deployer who never contemplated a transaction held any such assumption Mistake may therefore offer a remedy, but there are significant challenges

Failure of basis avoids the need for a human mistake but introduces a different dependency. If the AI transacted without authority and no binding contract was formed, then both parties proceeded on the basis that a valid contract existed That basis never materialised, and English law recognises that value transferred under a void contract may be recoverable on this ground.[24] This route is available only if no contract exists. If a court holds the deployer bound under apparent authority, a real possibility, then the contract itself provides the legal basis for the recipient's retention, and there is nothing to reverse. However, recovery is not assured The recipient may invoke the defence of change of position by showing good faith reliance on the payment[25] These difficulties are compounded when both parties deploy AI agents that transact with each other. If a deployer instructs an AI agent to furnish a room and the agent, acting autonomously, mistakenly sends £100 instead of £10 for a lamp to another AI agent, no human on either side engaged in the transaction, so it will be difficult to claim mistake Failure of basis may work if no contract exists, though the application of established defences becomes uncertain when the receiving AI autonomously disperses or reinvests the funds before the human recipient is even aware they have arrived.

Conclusion

This article has examined the challenges agentic AI poses across three areas of English private law. In each area, existing doctrine depends on a human element that agentic AI displaces, creating uncertainty that current rules cannot reliably resolve The UKJT’s Legal Statement, while sound in its treatment of conventional AI, does not fully address the difficulties that arise at higher levels of autonomy. Possible responses each carry risks: bespoke legislation on the model of autonomous vehicles may be ill-suited to harms as varied as those agentic AI may cause;[26] granting AI legal personality risks giving deployers a ready-made shield against liability; and a supervisory duty analogous to that owed by parents for their children’s acts sits uneasily with AI agents that, unlike children, may be entrusted with significant financial and management decisions English law is understandably built around human decision-making, and until it finds a way to accommodate autonomous systems that are neither persons nor simple tools, the gap between the harm agentic AI can cause and the remedies the law can offer will only widen

Footnotes

[1]Information Commissioner's Office, 'AI'll Get That! Agentic Commerce Could Signal the Dawn of Personal Shopping "AI-gents"' (ICO, 8 January 2026) https://icoorguk/about-the-ico/media-centre/news-andblogs/2026/01/ai-ll-get-that/ accessed 3 March 2026

[2]'Meta Acquires Intelligent Agent Firm Manus, Capping Year of Aggressive AI Moves' (CNBC, 30 December 2025) https://wwwcnbccom/2025/12/30/meta-acquires-singapore-ai-agent-firmmanus-china-butterfly-effect-monicaihtml accessed 3 March 2026

[3] UK Jurisdiction Taskforce, 'Draft Legal Statement on Liability for AI Harms under the Private Law of England and Wales' (LawtechUK, January 2026) https://lawtechukio/ukjt/public-consultation-liability-for-ai-harmsunder-the-private-law-of-england-and-wales accessed 15 March 2026.

[4] Law Commission, Smart Legal Contracts: Advice to Government (Law Com No 401, 2021).

[5] See Law Commission, AI and the Law (Discussion Paper, 2025).

[6] Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480

[7] DAC Beachcroft, 'AI Agents: Intentions vs Legal Realities' (DAC Beachcroft, 30 April 2025) https://www.dacbeachcroft.com/en/What-wethink/AI-agents-intentions-vs-legal-realities accessed 15 March 2026.

[8] Chris Holder and Brieanna McDonald, 'The Impact of Agentic AI on English Contract Law' (Browne Jacobson, 26 January 2026) https://wwwbrownejacobsoncom/insights/the-impact-of-agentic-ai-onenglish-contract-law accessed 15 March 2026

[9] Armagas Ltd v Mundogas SA [1986] AC 717

[10] First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194

[11] See Peter Watts, 'Some Wear and Tear on Armagas v Mundogas' [2015] LMCLQ 36

[12] See FmB Reynolds, 'Apparent Authority Some Continuing Problems' (2014) 130 LQR 16

[13] See Collen v Wright (1857) 8 E&B 647

[14] UKJT (n 3)

[15] Chris Reed, 'Autonomy, Responsibility and Agentic AI' (2025) JBL, SSRN https://ssrncom/abstract=5598471 accessed 20 March 2026

[16] Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 (reasonable person standard), Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (professional standard)

[17] Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428

[18] Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32

[19] Various Claimants v Catholic Child Welfare Society [2012] UKSC 56

[20] PBH Birks, Unjust Enrichment (2nd edn, OUP 2005)

[21] Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221 (HL) 227

[22] Kelly v Solari (1841) 9 M

[23] Pitt v Holt [2013] UKSC 26

[24] Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32

[25] Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548

[26] Automated Vehicles Act 2024

1 Birks PBH, Unjust Enrichment (2nd edn, OUP 2005)

2 DAC Beachcroft, 'AI Agents: Intentions vs Legal Realities' (30 April 2025)

3 Holder C and McDonald B, 'The Impact of Agentic AI on English Contract Law' (Browne Jacobson, 26 January 2026)

4 Information Commissioner's Office, 'AI'll Get That! ' (ICO, 8 January 2026)

5 Law Commission, AI and the Law (Discussion Paper, 2025)

6 Law Commission, Smart Legal Contracts (Law Com No 401, 2021)

7 'Meta Acquires Intelligent Agent Firm Manus ' (CNBC, 30 December 2025)

8 Reynolds FMB, 'Apparent Authority Some Continuing Problems' (2014) 130 LQR 16

9 UK Jurisdiction Taskforce, 'Draft Legal Statement on Liability for AI Harms ' (LawtechUK, January 2026)

10 Watts P, 'Some Wear and Tear on Armagas v Mundogas' [2015] LMCLQ 36

11 Chris Reed, 'Autonomy, Responsibility and Agentic AI' (2025) JBL, SSRN

The Mens Rea of Genocide: Rethinking

Dolus Specialis Esmée Cadogan

The following article contains the sole opinion of the writer and does not represent the opinion of CULS, the University, nor our Sponsors

Introduction

Definition of genocide

The focus of this article will be on the interpretation of the legal definition of genocide This is contained in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (‘the Convention’):

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group

Breaking this definition down, a defendant (D) will be guilty of genocide if:

1.D has committed one or more of the listed proscribed acts (the actus reus)

2 D intended to commit one or more of the proscribed acts (dolus generalis)

3.D intended to destroy a protected group as such (dolus specialis)

Issues addressed by this article

This article will focus on the correct interpretation of the current Convention and will not consider whether the Convention text ought to be amended

This article will examine two controversies associated with the interpretation of the dolus specialis element, namely:

Meaning of Intent: Whether intent should be given a purpose-based or a knowledge-based construction

Meaning of Destroy: Whether ‘intent to destroy’ can encompass intent to culturally destroy a group, or whether intention exclusively relates to material destruction.

The Mens Rea of Genocide: Rethinking

Dolus Specialis

This ‘Meaning of Destroy’ question should not be confused with the separate debate as to whether acts of cultural destruction should be included in the actus reus of genocide, which is beyond the scope of this article

In evaluating which interpretation should be preferred, this article will consider: which interpretation better aligns with the underlying purpose of the Convention; which interpretation is supported by the travaux préparatoires (records of negotiations and drafting of a treaty); and which approach would support more effective prevention and prosecution in practice.

Meaning of Intent:

Purpose-based vs knowledge-based interpretations

The dominant interpretation of dolus specialis in the jurisprudence has focused on whether it was the defendant’s purpose to destroy the group For example, Jelisic held that the defendant must have ‘[sought] to achieve’ destruction [1]. Similarly, the Darfur Report says that the group’s destruction must have been ‘consciously desired’ [2]

This purpose-based interpretation differs from the typical knowledge-based interpretation of intent under international criminal law, which, under the Rome Statute, includes awareness that a consequence ‘will occur in the ordinary course of events’ [3]. Whilst most existing genocide cases have required proof of a genocidal purpose, cases such as Brđanin and Blagojević demonstrate that this heightened mens rea is not required in the context of command responsibility Command responsibility is a mode of liability under which military or civilian superiors incur responsibility for crimes committed by subordinates where they knew, or had reason to know, of those crimes and failed to prevent or punish them. Accordingly, secondary liability for genocide in such cases is assessed on the basis of the superior’s knowledge of genocidal conduct rather than proof of a genocidal purpose [4]

Alignment with the purpose of the Convention

One justification for the purpose-based approach mentioned in Krstic was that only a ‘stringent requirement of specific intent’ properly reflects the exceptional gravity of genocide [5]. However, despite the oft-repeated reference to genocide as the ‘crime of crimes’, there is no legal hierarchy of international crimes; war crimes and crimes against humanity have the potential to be equally devastating, so this justification is arguably based on a false premise [6].

The Mens Rea of Genocide: Rethinking

Dolus Specialis

However, if genocide did not have a higher mens rea, then what would distinguish it from crimes against humanity? For reference, Article 5 of the Rome Statute defines a crime against humanity as the commission of an inhumane act (e.g. murder, enslavement, torture, or rape) as part of a widespread or systematic attack directed against any civilian population [3] The relevant mens rea is intent to commit the underlying act (dolus generalis) and knowledge of both the systemic attack and the nexus between the defendant’s acts and that context Whilst moving to a

The precise meaning of intent was scarcely discussed, with the term dolus specialis being mentioned only three times in the travaux préparatoires (by the Brazilian and French delegates), and ‘no other country affirm[ing] the use of the term further’ [9]. Further, the ad hoc committee rejected a proposal to replace 'with the intent to' with 'for the purpose of destroying’ [10]. Therefore, the travaux préparatoires are equivocal and do not particularly lend support to either interpretation

Difficulties of proof

Absent documentation of a genocidal plan or a confession, direct proof of subjective purpose is near impossible However, this is mitigated by the practice of international courts and tribunals of routinely treating the defendant’s awareness of the destructive consequences or the context of their actions as highly probative [11]. For example, the Trial Chamber in Akayesu held that genocidal intent could be deduced, inter alia, from the defendant’s contextual knowledge of ‘the perpetration of other culpable acts systematically directed against that same group’ [12]

Arguably, such practices do not vindicate the purpose-based approach but rather demonstrate that its unworkability has led to attempts to partially ‘introduce the knowledge-based approach through the evidentiary backdoor’ [13]; adopting a knowledge-based standard instead would improve the coherence and transparency of the law.

Dual and instrumental purpose cases

In order to establish the purpose-based test through evidential inferences, the genocidal purpose must be the ‘only reasonable inference’; as Judge Trindade argued, this test is ‘entirely inadequate’ in armed conflict situations because combat actions frequently have dual purposes, so it will be hard to disprove the possibility that the act was done solely for the non-genocidal purpose [14]. For example, a possible alternative inference in Israel’s case is that it is myopically pursuing its military objective of destroying Hamas, being callously indifferent to—rather than purposely pursuing the destruction of Palestinians.

Such a strict definition risks blurring the distinction between intention and motive

The purpose-based approach can also be interpreted as excluding genocidal acts pursued instrumentally for another purpose, such as the killing of the Ache Indians in Paraguay to free up their land for economic development, as the perpetrator did not desire their destruction [15].

Predictability

The purpose-based approach makes it challenging to predict whether the evidence is sufficient to infer intent until a court or tribunal determines the matter. For example, it will be difficult to determine whether Israeli officials have sought to achieve and/or actively desired the destruction of the Palestinians until the International Court of Justice issues its final ruling [16]. The consequent delay impedes the effective operations of states’ duty to prevent genocide, as the high evidential threshold means that genocide can only be realistically identified post facto after the group has already ‘suffered irreparable harm’ [17]

In contrast, whilst knowledge is also subjective, it is far easier to justifiably deduce from external evidence even in the absence of a judicial ruling As an illustration, ‘[h]umanitarian organizations had repeatedly warned that Israel’s ground operation in Rafah would have immediate and devastating effects on humanitarian access’, making it difficult to dispute Israel’s knowledge that its actions imposed destructive conditions on the Palestinian population [18]

Meaning of Destroy

Alignment with the purpose of the Convention

The other contested term is ‘destroy’ The International Law Commission asserts that ‘intent to destroy’ is restricted to its ‘physical or biological sense’ (henceforth material destruction) [19] However, the national, ethnical, racial or religious groups protected by the Convention are inherently cultural concepts. Lingaas observes that ‘races are social constructs rather than a biological given’ as there is no common gene shared by all members of a race [20] For instance, the Tutsi killed in the Rwandan genocide were ‘almost objectively indistinguishable’ from the Hutu perpetrators, with the groups’ separate identities originating in categories invented by Belgian colonisers [21]. As the Trial Chamber acknowledged in Krašjinik, it is illogical to restrict intent to material destruction when the defining characteristics of the group, namely ‘the bonds among its members [and their] culture and beliefs, are neither physical nor biological’ [22].

Therefore, by ‘destroying their social identity’, one destroys ‘what uniﬁes individuals into one group’ [23]. If acts done with the intent to destroy culturally are ‘just as likely’ to destroy the unique social groups that the Convention aims to protect, they ought to be treated as ‘just as significant’ as intent to destroy materially. [24]

Travaux préparatoires

In Semanza, the Trial Chamber claimed the drafters of the Convention ‘unequivocally chose to restrict the meaning of “destroy” to encompass only acts that amount to physical or biological genocide’ However, arguably, the evidence is far from unequivocal [25]. Whilst it is true that the proposed Article III (entitled ‘cultural genocide’) was not adopted, this was mainly due to concerns about its unclear and unduly expansive definition of the actus reus (physical element) of genocide, which included restrictions on the use of certain languages and the destruction of buildings as genocidal acts [26] Hence, it is not dispositive of whether intent to culturally destroy is sufficient mens rea. The rejection of the Soviet Union’s proposal to insert ‘aimed at the physical destruction’ suggests the drafters could have expressly limited genocidal intent to material destruction, but chose not to do so [26]

Interpretation

of the forcible transfer clause

Article II specifies that genocide can be committed through forcibly transferring children, even though this cannot, per se, ‘lead to the physical or biological destruction of the group’ as such transfers disrupt cultural continuity but leave the children materially unharmed [27] It is an accepted principle under the Vienna Convention that treaties must be interpreted ‘in accordance with the ordinary meaning to be given to [its] terms’, so a construction of ‘intent to destroy’ which effectively renders one of the clearly enumerated actus reus elements redundant should be avoided [28].

The material destruction approach places a strained construction on the Convention’s clause on the forcible transfer of children (which is likely why it has never been relied upon in practice) Werle has argued that this clause can be reconciled with the concept of biological destruction if it is proven that the children never returned and bore children to the group [29], but such a duration requirement would be ‘highly impractical [and] involves considerable latency’ [30].

This dormant provision can only be reinvigorated by recognising that its purpose is to prevent cultural, not biological harm. This is illustrated through the abduction of Ukrainian children by Russian authorities involving coerced adoptions/fostering and re-education camps as part of an ‘orchestrated initiative to destroy the children’s Ukrainian identity and replace it with Russian identity’ [31] Such a case could only be tackled through a cultural destruction approach to genocide, as Putin’s denial of the existence of a separate Ukrainian people suggests such policies are attempts at forced cultural assimilation rather than material annihilation.

Inconsistent reasoning

The definition of destroy has also led to inconsistent reasoning where tribunals have outwardly affirmed that genocide is restricted to material destruction, whilst effectively defining these terms in a broad manner tantamount to cultural destruction. The most striking example is the Trial Chambers’ comments in Blagojević, which expressly disclaimed ‘cultural genocide’ whilst simultaneously defining destruction to include the group’s ‘history, traditions [and] relationship

with the land’, despite such aspects being evidently not physical or biological [32] In Akayesu, systemic forced impregnation was recognised to be genocidal, notwithstanding that the resulting children are factually biologically related to their mothers, as the ‘culture of highly patriarchal societies prevents children of such rapes from being accepted into the group’ [33]. Similarly, in Sikirica, it was held that the ‘targeting of a selective number of persons’ who are particularly influential ‘by reason of their special qualities of leadership’ could constitute genocide, yet such destruction could only be cultural, as the killing of only a few individuals is incapable of materially destroying a group [34] The use of such an imprecise understanding of material destruction results in a confusing definition of genocidal mens rea; openly including intent to culturally destroy would remove the existing incongruity and make the definition easier to apply in practice.

Conclusion

This article has suggested that many of the persistent difficulties surrounding genocide do not stem from the wording of the Convention itself but from the restrictive interpretations that courts and tribunals have placed upon it Over time, jurisprudence has crystallised around two assumptions First, that genocidal intent requires proof that destruction was the perpetrator’s conscious purpose. Second, that ‘intent to destroy’ refers only to intent to annihilate the group physically or biologically. Yet, as the preceding discussion has shown, neither limitation clearly follows from the text, the drafting history, or the broader logic of treaty interpretation Rather, they are judicial constructions that have gradually narrowed the Convention’s reach.

Taken together, these interpretations have shifted attention away from the Convention’s central concern, the protection of groups, and towards satisfying an unusually demanding mental element A purpose-based approach risks excluding cases where destruction is pursued instrumentally, such as when violence is deployed to secure territory or political control while perpetrators remain indifferent to the group’s survival. Likewise, restricting the intended aim to material destruction sits uneasily with the Convention’s protection of national, ethnic, racial and religious groups, all of which are defined primarily through shared culture, identity and social bonds. The difficulties courts and tribunals face in explaining provisions such as the forcible transfer of children, or in reconciling cases where cultural devastation has effectively been treated as genocidal harm, illustrate the strain created by this narrow framework

It may be argued that fidelity to the drafters requires caution However, the travaux préparatoires reveal little sustained engagement with mens rea terminology and provide no clear consensus supporting the rigid interpretations later adopted. The emphasis during drafting lay on safeguarding the existence of human groups, not on constructing an exceptionally restrictive mental threshold.

The consequences of the prevailing approach are both practical and doctrinal. Courts frequently proclaim strict standards while inferring intent from knowledge of destructive consequences and describing intent to cause material destruction in ways that implicitly incorporate cultural description. This disconnect between formal doctrine and judicial practice undermines clarity, predictability and early identification of genocide, all of which are essential for triggering preventive obligations. A more coherent reading would recognise genocidal intent where an actor knowingly engages in conduct that will bring about the destruction of a protected group. Equally, if the defendant has committed one of the proscribed acts, it should not matter whether they intended to destroy the group materially or culturally. Such an interpretation better reflects the Convention’s purpose and restores focus to the harm it was designed to prevent.

1.Prosecutor v Goran Jelisic (2001) ICTY-IT-95-10-A, [46]

2 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc S/2005/60, [491]

3 Rome Statute (1998) 2187 UNTS 90, art 30(2)

4.Prosecutor v Radoslav Brđanin (2007) ICTY-IT-99-26-A, [7]; Prosecutor v Vidoje Blagojević and Dragan Jokić (2005) ICTY-IT-02-60-T, [686]

5.Prosecutor v Radislav Krstić (2004) ICTY-IT-98-33-A, [134]

6 Samantha Lakin, ‘The Global Challenges of Defining Genocide Responses to Renewed Debates’ (UN Chronicle, 10 October 2024)

7 UNGA Res 96/1 (11 December 1945) UN DOC A/RES/96/1

8.Raphael Lemkin, ‘Genocide: A Modern Crime’ (1945) 4 Free World, 39–43

9.Katherine Goldsmith, ‘The Issue of Intent in the Genocide Convention and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge-Based Approach’ (2010) 5 Genocide Studies and Prevention: An International Journal 238, 247

10.Ad Hoc Committee on Genocide, Summary Record of the Twenty-Fourth Meeting UN Doc E/AC.25/SR.24 (12 May 1948)

11 Marjolein Cupido, ‘The Contextual Embedding of Genocide’ (2014) 15 Melbourne Journal of International Law 149

12 Prosecutor v Jean-Paul Akayesu (1998) ICTR-96-4-T, [523]

13 Claus Kreß, ‘The Crime of Genocide under International Law’ (2006) 6 International Criminal Law Review 461, 571

14.Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) [2015] ICJ 3, Cançado Trindade, [467]

15 Alexander Greenawalt, ‘Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation’ (1999) 99 Columbia Law Review 2259, 2285

16.Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) [2024] ICJ Rep 3

17 B’Tselem (The Israeli Information Center for Human Rights in the Occupied Territories), Our Genocide (B’Tselem, Jerusalem 2024), 12

18 Amnesty International, Israel’s Genocide Against Palestinians in Gaza (Amnesty International Ltd, London 2024), 157

19.International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind [1996] II(2) Yearbook of the International Law Commission UN Doc A/CN4/L532, [50]

20 Carola Lingaas, ‘Imagined Identities: Defining the Racial Group in the Crime of Genocide’ (2016) 10 Genocide Stud & Prevention79,87

21.Daniel Feierstein, Genocide as Social Practice: Reorganizing Society under the Nazis and Argentina’s Military Juntas (Rutgers University PressNewBrunswick NJ 2014), 21-22

22 Prosecutor vMomčiloKrajišnik (2006) ICTY- IT-00-39-T, 302

Bibliography

23.RasaDavidavičiūtė, ‘Cultural heritage, genocide and normative agency’ (2021)38Journal of Applied Philosophy599, 602

24 LarryMay, Genocide: A Normative Account (CUP 2010), 104

25 The Prosecutor vLaurentSemanza (2003) ICTR-97-20-T, [315]

26.CómanKenny and TravisFarr, ‘The International Criminal Court’s Opportunity to Correct the Erroneous Interpretation of the “MensRea” for Genocide’ (2024)46HumanRtsQ25,35

27 International Criminal Law Services, ‘Genocide’ (Training Materials), 28

28 Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331, art 31(1)

29 GerhardWerle and FlorianJeßberger, Principles of International Criminal Law (3rdedn, OUP 2014), 307

30.RuthAmir, ‘Probing the Boundaries of the Genocide Convention: Children as a Protected Group’ in MarcoOdello and PiotrŁubiński (eds), The Concept of Genocide in International Criminal Law: Developments after Lemkin (Routledge 2020), 146

31.HMoodrick-EvenKhen, ‘The Forcible Transfer of Children from Ukraine as Genocide: Awakening the Dormant Prohibition of the Genocide Convention’ (2024)32(1) International Journal of Children’s Rights78–118,99

32 Prosecutor v Vidoje Blagojević and Dragan Jokić (2005) ICTY-IT-02-60-T, [666]

33 KurtMundorff, ‘Other Peoples’ Children: A Textual and Contextual Interpretation of the Genocide Convention, Article2(e)’ (2009)50Harvard International Law Journal61, 116.

34.Prosecutor v DuškoSikirica, DamirDošen and DraganKolundžija (2001) IT-95–8T, [77]

Page 30

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LAND LAW

Navamee Nair Mark: 72

‘Amongst other things, possession can be adverse, exclusive or vacant. It can tip the balance in rectification claims and make all the difference in respect of overriding interests. But there is no single meaning of “possession” in the law of England and Wales.’ Discuss.

The concept of possession in English land law has always resisted a unified or singular definition This essay argues that possession is best understood as a doctrinally contingent concept: its meaning is shaped by the legal consequences it is designed to support. In some contexts, it serves to transfer title; in others, to protect existing interests or resist alteration of the register Thus, I examine possession as it operates in three key settings: first, as adverse, exclusive or vacant in the context of acquisition; second, as a determinant in rectification under the Land Registration Act 2002; and third, as the foundation of overriding interests through actual occupation. I conclude that its conceptual elasticity is a product of competing legal policies rather than conceptual inconsistency

Possession as Adverse, Exclusive or Vacant: A Legal Tool for Acquisition

In the context of adverse possession, the courts have developed a functional test that evaluates both physical control and mental intention In JA Pye (Oxford) Ltd v Graham (2003), the House of Lords affirmed that legal possession requires both factual possession and an intention to possess

As Lord Browne-Wilkinson demonstrated, factual possession is established where there is “appropriate degree of physical control,” while the animus possidendi entails the intention “to exclude the world at large, including the owner What amounts to factual possession is a highly contextual enquiry. In Powell v McFarlane (1977), Slade J suggested that acts must be “open, not secret; peaceful, not by force; and adverse, not by consent” Activities such as fencing, cultivation, or locking access gates may suffice. By contrast, passive or minimal acts such as grazing animals may not In Red House Farms v Catchpole (1977), possession was established through shooting rights, due to the land’s marshy nature. The court thus tailors its assessment to the character and expected use of the land.

Possession must also be exclusive. The requirement ensures that the squatter has displaced the paper owner’s control In Buckinghamshire CC v Moran (1990), the squatter succeeded because his use of a fenced driveway was inconsistent with the council’s intended future use. Nonetheless, where the owner maintains residual control or monitoring, exclusivity may be undermined, like in BP Properties Ltd v Buckler (1987), where the landowner’s occasional visits and requests to leave the land were taken as evidence that they had not relinquished possession

Where land lies vacant, the law is particularly willing to recognise adverse possession to promote land use and prevent uncertainty As Jourdan and RadleyGardner note, the law encourages reallocation of dormant land to parties who can make use of it Thus, possession here is closely aligned with public interest in economic utilisation.

Possession as a Determinant of Rectification and Overriding Interests

While possession can generate title through adverse possession, it also operates defensively in disputes involving registered title and unregistered interests.

A. Schedule 4 Rectification and Proprietary Protection

Schedule 4 of the LRA 2002 governs rectification of the register Paragraph 1 defines rectification as an alteration that corrects a “mistake” and prejudicially affects a registered proprietor. Significantly, paragraph 2(b) limits rectification where the registered proprietor is in possession, unless they contributed to the mistake by fraud or lack of proper care.

Possession, then, serves as a shield against retrospective disruption. Yet courts have struggled to interpret when a person is “in possession” for this purpose.

In Gold Harp Properties v Macleod (2014), the lease of one tenant was wrongly removed from the register, and a new lease was granted to a third party. Although the original lease was restored, critics argue that this undermined the reliability of the register Harpum contends that the decision disrupts the “priority promise” of s.29 LRA 2002 and improperly treats rectification as an instrument for reshuffling established priorities.

The ambiguity in how possession is defined under Schedule 4 also invites criticism As Dixon observes, while the register is meant to provide certainty, the legal consequences of possession inject unpredictability: “The vast majority of proprietors will be in possession, but the lack of clarity in defining it leaves outcomes uncertain. Here, possession serves a protective function, yet its doctrinal basis remains unstable.

B. Overriding Interests and the Role of Actual Occupation

Furthermore, possession also plays a crucial role in determining whether unregistered rights survive disposition. Under Schedule 3, paragraph 2 of the LRA 2002, rights of persons in “actual occupation” may override a registered disposition if their occupation is obvious or known.

The notion of “actual occupation” is inherently fact dependent In Link Lending v Bustard (2010), the court accepted that a mentally ill claimant who was regularly absent but intended to return could be in actual occupation. This reflects a shift away from rigid physical presence towards a more holistic understanding of connection to the property. In contrast, in Thompson v Foy (2009), the court denied overriding status to a claimant who had permanently vacated the property, despite having previously lived there The distinction was based not on acts but on the intention to return.

This theme recurs in Kling v Keston Properties Ltd (1984), where parking a car in a garage counted as actual occupation, in contrast to Chaudhary v Yavuz (2011), where using an external staircase did not. The nature of the interest and the visibility of occupation are determinative. Consequently, the concept of possession in this context includes both physical use and its legal visibility.

The

Absence of a Unified Legal Meaning

Given the contrasting roles that possession plays in acquisition, rectification, and overriding interests, it is not surprising that no single definition is consistently applied Each domain utilises possession for a different purpose and defines it accordingly In adverse possession, it is an engine for transferring title through factual use and intention In rectification, it protects registered proprietors from having their titles altered In overriding interests, it elevates certain unregistered rights above registered dispositions These functions may conflict, and the criteria for possession in each setting evolve accordingly

This pluralism reflects a broader evolution in land law from possessionbased to registration-based paradigms. As Gray and Gray argue, the register has shifted from “recording” rights to “constituting” them, leading to fundamental changes in the role of possession. Concurrently, there is continued judicial reluctance to abandon possession entirely as a marker of legitimacy, particularly in cases involving long-term occupiers or vulnerable claimants. Academic literature has also drawn attention to the normative implications of these trends

Margaret Radin, for example, defends a personhood-based account of property, under which attachment to land through possession deserves protection. Lewinsohn-Zamir builds on this by showing that the law often protects parties not because of formal entitlement, but due to psychological or social investment.

The partial retreat from absolute registration in the LRA 2002 is explained by this. While the Act curtailed automatic acquisition of title through adverse possession, it also retained mechanisms by which longterm occupiers could apply for registration (Schedule 6). These are exceptions based on equitable considerations, mistake, reliance, or boundary uncertainty. Wonnacott rightly characterises possession as a practical safeguard, used “to achieve justice in circumstances where title alone would be unjust. Nevertheless, legal protection is no longer unconditional The criminalisation of residential squatting under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 reflects a policy shift towards reinforcing formal title and reducing tolerance for informal occupation.

Conclusion

Possession in English land law serves multiple legal functions and takes on different meanings depending on the context in which it is applied. Whether enabling title acquisition, defending against rectification, or grounding overriding interests, possession reflects the underlying purposes of the rules in which it appears. It is not conceptually inconsistent but functionally plural. It is clear to see why courts adopt contextsensitive standards rather than a single unifying definition As land law continues to evolve towards registration and formalisation, the role of possession is becoming narrower in some domains and more refined in others Its meaning remains contingent, but not incoherent.

Janice Samuel | Mark: 74

law OF tort

Advise the parties of their rights and liabilities in tort in each of the following situations.

(i) Chargers Ltd, a car manufacturer, started fitting its cars with a new type of brakes, called plastobrakes, produced by Steelers Ltd. Plastobrakes were made from plastic and were lighter, less noisy, and cheaper. Lionel bought a Chargers car, which he drove for the first time on an exceptionally hot day. The unusually high temperature caused the plastobrakes to malfunction. Lionel could not stop the car, and it hit a lamppost. Lionel, who was not wearing a seat belt, was seriously injured. An article in the Global Journal of Engineering, published before Chargers started using plastobrakes, showed that plastobrakes were only 1% less resilient than metallic brakes at high temperatures.

(ii) Elizabeth was gifted an air fryer by her husband, Andy. The air fryer was made by Packers Ltd in the USA, but was imported into the UK by Innox Ltd. While using the air fryer, Elizabeth heard a crackling sound. She removed the food from the air fryer, but when the crackling noise continued, she panicked. Shortly afterwards, the air fryer (worth £300) burst into flames. The fire destroyed Elizabeth’s mobile phone (worth £200) and Andy’s briefcase (worth £275) which he was using for work. The kitchen needs to be refurbished at a cost of £2,000. Elizabeth failed to read the sticker on the side of the air fryer, which stated that in the event of a crackling noise, the user ought to unplug the air fryer.

(iii) Victoria used a recipe from a cookbook by chef Willow to bake a torte. Owing to a mistake in the recipe, the torte was poisonous. Upon eating a slice of the torte, Dorothy, Victoria’s sister, suffered a seizure.

Global Journal of Engineering - G

L v S and C under Consumer Protection Act 1987

Standing

L has suffered personal injury and property damage and can sue under the CPA s5(1) C as the producer of the car can be sued s2(2)(a). S as the producer of a component part of the product can also be sued (s1(2)) A car is a product (s1(2)). The brakes are a product comprised within a product as a ‘component part’ (s1(2)).

When is a product defective?

Products are defective when they fall below what persons are “generally entitled to expect” (s3(1)), including risks from its components and the potential for property damage, death, or personal injury This includes the brakes as “safety with respect to products comprised in that product” is considered (s3(1))

The test of what people are “generally entitled to expect” was established in Wilkes v DePuy International Ltd, which established the standard is an objectively reasonable expectation In determining what people are entitled to expect, the relevant circumstances and the weight given to each factor will vary depending on the circumstances (s3(2))

While in A v National Blood Authority, the courts expressed doubt about using a cost-benefit analysis, more recent case law like Wilkes v DePuy suggests it may be relevant when determining defectiveness.

As per Higginbottom J, the “practicability of producing a product with equivalent risk-benefit balance is a relevant factor in determining safety”. The benefits of plastobrakes are that they are lighter, cheaper and less noisy, while their cost is that they fail at high temperatures and are 1% less resilient than traditional brakes As a sidenote, the article published by G is a relevant consideration as courts can consider all information now known about the product, even if it was unavailable at the time of supply (Hastings v Finsbury Orthopaedics Ltd).

On the other hand, people are generally entitled to expect that their car brakes, as a crucial component to the functioning of the car, would always work as expected The fact the brakes malfunctioned on an ‘exceptionally hot day’ suggests they were defective Page 39 Charges - C

In totality, I submit that the plastobrakes were on balance not defective It seems they were intentionally designed as such and provide cost savings and other benefit with only a 1% chance of malfunction on an exceptionally hot day, suggesting the statistical probability of malfunction is low.

Furthermore, Lunney suggests that where an alternative design would increase cost, courts may conclude there is no defect.

As a result, the car itself was likely also not defective.

Causation

Arguing in the alternative, L must prove the defects factually and legally caused his damage on the balance of probabilities (McGlinchey v General Motors). But for the malfunction, L could have stopped the car, the collision would not have occurred, and he would not have been injured Legal causation in CPA claims follows negligence principles. The type of damage (personal injury, property damage) are reasonably foreseeable (The Wagon Mound (No. 1)) consequences of brake failure

Damages

L can recover for personal injury (s5(1) CPA 1987). Damage to the car itself however is pure economic loss and not recoverable under s5(2) CPA 1987.

Damage to the lamppost is public property not intended for private use so it is unlikely to be recoverable under the CPA s5(3).

Section 1(1) of the Civil Liability (Contribution) Act 1978 provides for where multiple defendants have contributed to the same indivisible injury Here, L may sue either defendant for full damages, and the sued defendant can then seek contribution from the other

Defences

Development risk

Both C and S could raise the defence under s4(1)(e) This defence applies if the state of scientific and technical knowledge at the time the product was supplied was not such that a producer of similar products could have discovered the defect The journal article, published before C started using plastobrakes, showed they were less resilient at high temperatures. There are two interpretations of this provision and its competing one in Article 7(e) of the EU Directive

The provision under s4(1)(e) is worded much more favourably than Article 7(e) of the Directive, which requires the state of knowledge at the time of circulation to not be such as to “enable the existence of the defect to be discovered”. However, since European Commission v UK held that the UK had adequately implemented Article 7(e), the domestic standard should be followed.

The ECJ has a more lax approach by allowing the “Manchuria exception” where producers are not expected to be aware of knowledge in an obscure journal in Chinese

In A v NBA, Burton J adopted a strict view when applying the Consumer Protection Act 1987 (CPA).

Under this interpretation, the defence only applies if the knowledge was unpublished or kept within the private domain (e.g., research done in a company’s lab or department).

In any case it seems that the information was published by a global journal, which implies it was a well-known and reputed journal thus the information was available and the defence fails on both approaches.

Only manufacturing the component

S as the manufacturer of the component can escape liability under section 4(1)(f) of the CPA if they prove two things:

1 The defect in the product is a defect in the finished product that D’s component was incorporated into

2 The defect was entirely due to the design of the finished product or the instructions provided by the finished product’s manufacturer, including if those instructions were inadequate or faulty.

However, the defect seems inherent to the plastobrakes rather than any instructions given by C or a result of their incorporation into C’s car thus the defence will likely fail

E - Elizabeth

A - Andy

P - Packers

I - Innox

E and A v I and P

E suffered damage and can bring a claim. A also suffered damages.

P as the producer can be sued. As Clerk & Lindsell suggest, even though production occurred abroad, P may still be liable under the CPA 1987 if the damage was suffered in the UK. As I imported the product into the UK (s2(2)(c)), they are treated as a producer and are liable under the CPA 1987 (s2(2)(c)).

The air fryer is a good.

The air fryer bursting into flames likely falls below the standard of what people are entitled to expect People are entitled to expect that such an appliance used normally will not catch fire. While the warning of the sticker could adjust what people are reasonably entitled to expect under s3(2)(a) CPA 1987, I submit that the risk was not obvious and a crackling noise is an ambiguous term and could not be heard by the deaf or people hard of hearing Thus with such a non-obvious risk the warning is confusing and inadequate and liability will still arise (Palmer v Palmer) Thus the product is defective

Causation

The defect in the air fryer (causing it to catch fire) is the factual cause of the damage to the phone, briefcase, and kitchen.

Damage

Damage to the defective product itself is not recoverable (s5(2)) Thus, E cannot claim for the value of the air fryer (£300) under the CPA.

The CPA allows recovery for property damage (s5(1)), subject to conditions which I will lay out then apply to the items individually

Firstly, the damaged property must be of a type ordinarily intended for private use, occupation or consumption (s5(3)(a))

Secondly, the damaged property must be intended mainly for the loss-sufferer’s own private use, occupation or consumption (s5(3) (b))

Thirdly, the damage must exceed £275 (s5(4)) E’s phone is both a good ordinarily intended for private use and is mainly intended for her private use, but is on its own less than £275 Article 9(b) of the EC Directive suggests that each item should be considered separately, meaning no liability applies if each individual item falls below £275. However, Clerk & Lindsell argue that the total value should be considered, allowing claims where the combined amount exceeds the threshold. Lunney supports the stricter approach, noting that £275 was a significantly higher sum in 1987, implying an intention to set a high bar for recovery. This interpretation favors assessing each item individually and disallowing claims for items below the threshold, rather than taking the more generous approach of aggregating their value

In any case, A may bring a claim under negligence for her phone and would likely succeed in such a claim.

A’s briefcase is likely not a good ordinarily intended for private use and was also not intended by A for private use thus since it fulfils both clauses the claim is exempt

The kitchen refurbishment (£2,000) is well above the threshold and meets the private use conditions and can be recovered under the CPA provided causation is fulfilled.

iii.

V - Victoria

D - Dorothy

W - Willow

D v W in CPA

The defect in the recipe is a defect in information which turns on whether information is a product under the CPA

No English case directly covers informational defects under the CPA 1987. However, St Albans CC v ICL Ltd, suggests they may be covered As Clerk & Lindsell argue, the CPA focuses on dangers from physical characteristics, and purely informational defects should fall outside its scope This garners support from international cases like Winter v G Putnam’s Sons, where it was held that product liability does not extend to information alone. Indeed, the post-Brexit case of VI v KRONE confirms that intellectual defects in content are only covered when linked to a defect in a physical product, although this posits a more direct link English courts are likely to adopt a similar approach and such a claim would likely fail.

V - Victoria

D - Dorothy

W - Willow

D v V

V baked the torte and is the producer. The torte is a good.

The torte was poisonous and its safety not such as persons are generally entitled to expect It is clearly defective

The defect caused D’s seizure. Seizures are recoverable under the CPA as personal injury

V may raise the defence that she did not supply the product in the course of a business (CPA 1987 s4(1)(c)) which would absolve V of liability under the CPA.

JURISPRUDENCE

Mark: 72

Introduction

Finnis maintains that the fundamental purpose of law in any society is inherently moral: the point of law is to reasonably resolve a community’s ‘coordination problems’ for the ‘common good’ of that community This allows to citizens to pursue the basic goods in line with the requirements of practical reasonableness, and promotes their human flourishing Therefore, Finnis seizes on the central-/peripheral instances methodology propounded by Hart and moralises it: for him, the central internal point of view (POV) and therefore the central legal system will have an inherently moral purpose This is not entirely incompatible with the conception of law propounded by Hart: both agree on the methodological importance in a theory of law of the central-cases approach and of recognising participants’ internal POVs. Yet given that Hart was a descriptive theorist, while Finnis is a prescriptive one, their conceptions of law are overall incompatible Their views as to the purpose of law cannot be reconciled without neutralising the moral assumptions Finnis’ theory makes.

John Finnis maintains that the fundamental role of law in any society is to enable the realization of the basic goods of sociability and practical reasonableness, and to enable individuals to enjoy the other basic goods in accordance with the requirements of practical reasonableness. To what extent is Finnis’s conception of law compatible with the conception propounded by Hart, who denied that law is an inherently moral phenomenon? Page 45

Synopsis of Finnis’ argument

In his attempt to distinguish between the central and deviant internal POVs, Finnis argues that given the various possible reasons for allegiance to a regime, a legal theorist must avoid their central case being skewed by people with only a half-hearted commitment towards that regime. Finnis therefore discards the perspectives of the ‘anarchistic judge’, those moved by ‘calculations of long-term interest’, the ‘unreflecting inherited or traditional attitude’, and ‘mere wish to do as others to’ He concludes that the central internal point of view must bring law into existence to ‘remedy the defects of pre-legal social orders’ and to maintain law as ‘a significantly differentiated type of social order’. For Finnis, only participants acting with a moral purpose will have a more than half-hearted commitment to the regime

Incompatibility between Finnis and Hart

At this point, the core incompatibility between Finnis and Hart’s conceptions of law becomes clear Hart reiterated that he was a descriptive theorist – his account of law ‘is morally neutral’ and ‘does not seek to justify or commend on moral grounds the forms and structures’ appearing in his conception of law. Although Finnis criticised Hart for failing to distinguish between central and deviant instances of the internal POV of officials, this criticism is false. Hart’s distinction on this matter focused on the extent to

which officials’ viewpoints led them to fulfil Fuller’s eight principles of legality with regularity. However, unlike for Finnis, Hart’s distinction was not moralised; he did not see regular adherence to Fuller’s eight principles as inherently moral

Finnis instead misguidedly moralises his central/focal distinction He suggests that officials’ concern with their own prudential interests ‘dilutes’ their allegiance to the law, and assumes that a moral purpose is an inherent part of the practical viewpoint needed to create and maintain law – apparently, centralinstance officials must act with a concern for the common good Moreover, for Finnis, a legal system which is ‘legally in good shape’ exemplifies the rule of law (and thus adherence to the rule of law by officials), which itself has an inherently moral purpose: to secure the dignity of self-direction and freedom from manipulation for the subjects of authority. In this way, the basic goods can be realised and pursued by individuals

As Finnis’ definition of the rule of law is very heavily based on Fuller’s eight precepts of morality, the two conceptions may superficially appear quite similar and prima facie compatible For both, the central instance of a legal system will be one where officials regularly adhere to the rule of law. Yet for Finnis, this gives the central-instance of law a moral purpose; it does not for Hart Their theories are therefore substantively incompatible – by which I mean that although they may appear similar in form, the

contents of each theory as descriptive/prescriptive is incompatible.

This incompatibility is further illustrated by drawing out Finnis’ wrongly moralised assumptions This can be done by showing that wicked regimes have prudential reasons to adhere to the principles of legality; they will not inevitably have a ‘halfhearted’ commitment to the rule of law. If these assumptions were corrected, Hart’s and Finnis’ theories would be more harmonious Yet it is doubtful that stripping away the central element of Finnis’ conception – that law is an inherently moral phenomenon –would even leave a theory which could be ascribed to Finnis at all.

Illustrating the incompatibility: prudential reasons for adherence to the rule of law

As Kramer notes, Finnis’ argument rests on a wrongful assumption: that wicked rulers acting prudentially have no reason to adhere to the rule of law to a quite high standard. For Finnis, the rational point of adhering to the rule of law is the ‘value of reciprocity, fairness, and respect for persons’; as a ‘tyrant’ holds these values in contempt, he will have no reason to uphold the rule of law Yet even on Finnis’ own logic that a tyrant is ‘in business for determinate results’, his presumption fails. Finnis’ definition of the rule of law is heavily based on Fuller’s eight precepts – yet Fuller admitted that five of his principles (promulgation, clarity, non-contradiction, non-impossibility, and no too-frequent changes) would

also further the aims of wicked regimes Kramer adds that a ruler’s desire to pursue long-term selfishness is furthered by the rule of law: it generates strong incentives for citizens to comply with orders, and facilitates co-ordination of the regime’s own evil efforts. The principles of generality, nonretroactivity and congruence are necessary to fulfil these aims Hart recognised the fact that even regimes adhering with regularity to the rule of law were capable of great iniquity, which is why he resists the moralised assumptions as to purpose that Finnis makes This is why their theories are substantively incompatible

Any defence from Finnis of the moral purpose of law, in an attempt to show that Hart’s positivist conception is wrong due to its incompatibility with his own theory, will fail Finnis suggests that ‘the mature person of practical reasonableness’ can understand the reasons for action of ‘the merely selfinterested’, but the converse is not true Yet this methodological claim –that a moralised central/deviant distinction of the internal point of view is superior – is false As Kramer notes, Finnis’ focus on practical reasonableness means that he is the one blind to the wicked ruler’s prudential reasons for respecting the rule of law This is also why his theory is fundamentally incompatible with Hart’s – he fails to recognise non-moral purposes can be present in a central legal system.

Ultimately, therefore, Hart and Finnis’ theories, as put forward by

each of them, are fundamentally incompatible. Only if Finnis’ theory is corrected to reflect that the centralinstance legal system will not always be inherently moral can this incompatibility be reconciled Yet this would require undoing the most fundamental assumptions underlying Finnis’ theory. It seems that if any such assumptions were removed, we would not be left with Finnis’ conception of law at all. In respect of whether law is a fundamentally moral phenomenon, therefore, Hart and Finnis’ conceptions of law are substantively incompatible

Some potential compatibilities

Although Hart described himself as a descriptive theorist, he recognised that in many central legal systems, law has a moral purpose. Yet this does not go far in reconciling the incompatibility: granting that the central case of law may sometimes be moral still falls far short of Finnis’ assertion that a legal system cannot be a central-instance if it is not moral. It may also appear that because Hart invoked moral considerations to support his broader concept of law in Chapter 9 of The Concept of Law, he cedes to Finnis’ conception of the law as a moral phenomenon and there is no incompatibility Yet as Kramer notes, this was a departure from his strictly theoretical-explanatory, descriptive methodology throughout the rest of the book: it was an unnecessary departure and did not affect the Page 48

descriptive nature of his broader conception of law. Regarding the descriptive/prescriptive incompatibility therefore, Finnis’ and Hart’s work is entirely irreconcilable.

However, there are two less important ways in which their conceptions of justice are compatible First, Finnis commended Hart, in distilling the essence of law, for looking to participants’ internal POVs in answering the question of ‘from what viewpoint are importance and significance to be assessed?’ Finnis develops his theory by reference to the internal POV as well They both therefore recognised the importance of participants’ viewpoints in developing a conception of law. However, the compatibility ends there As a legal positivist, Hart himself does not adopt the internal POV – he adopts the moderate external point of view (Kramer). Finnis himself adopts the internal point of view in propounding law as a moral phenomenon This is why the two reach substantively different conclusions as to the purpose of law. Second, both adopt a centralinstances approach. Their methodology is thus broadly compatible: as Kramer notes, it allows them to develop a conception of law which is not ‘fruitless and inordinately rigid’, allowing borderline cases of a legal system to be dealt with in relation to central cases. Yet once again, this methodological compatibility ends

once Finnis moralises his central/deviant distinction and Hart does not

Conclusion

As a prescriptive theorist, Finnis’ conception of law is fundamentally incompatible with Hart’s conception in that it propounds law as an inherently moral phenomenon. This is despite the fact that the theories may appear similar when the purpose of law is ignored – both characterise the central legal system as one where officials regularly adhere to Fuller’s eight principles of legality (or for Finnis, the rule of law, which is very similar). Any methodological compatibilities – such as the development of their theories by reference to participants’ internal POVs, and the use of the centralinstances approach – also end as soon as the issue of the inherent morality of law is reached

Jurisprudence | By Sara Joy | Mark: 71

European Union Law

Stephanie Tee | Mark: 74

‘...[T]he economic personhood of the European mover that appears after the establishment of Union citizenship and its progressive interpretation by the ECJ, no longer conforms to the homo economicus ascribed to the early “market citizen”... [T]he “new” homo economicus of EU free movement law becomes especially visible at the intersection of mobility and the national welfare state...’. (KRAMER)

Discuss.

The establishment of European Citizenship undoubtedly led to “progressive interpretation” by the ECJ: it has espoused expansionist and teleological statements about how citizenship is “destined to be

the fundamental status” which entailed “financial solidarity between all” (Grzelczyk) Nonetheless, these rhetorical brandishes have not amounted to much, and it is argued that citizenship/free movement rights still only conform to the “homo economicus” ascribed to the early “market citizen”-- ie, the economically active. This essay will analyse the chasm between EU citizenship’s free movement / equal treatment promises and its delivery in respect of : (1) economically inactive, (2) economically active, and (3) non-moving citizens, evincing how the intersection of mobility (Art21 TFEU) and the national welfare state still indicate that the economic roots of the EEC haunt the EU’s approach to personhood

Economically inactive

EU Citizenship promises the right to equal treatment with host state nationals under Art.18 TFEU and Art24(1) CRD The promise also includes equal right to social advantages and benefits for economically inactive citizens, but the approach of the courts have been hit by “winds of change” (Barnard) over the past two decades, retreating from the broader Martinez Sala position to a narrower reassertion of “national citizenship”.

The pre-CRD line of cases involving Martinez Sala (1998), Trojani (2004), peaking at Grzelcyzk (2001) marked a high water-point for the promises of citizenship In Martinez Sala, a CJEU held that an economically inactive and non-self-sufficient Spanish national could rely on Art.18 and have equal access to social assistance by virtue of her residence in Germany (albeit by operation of national law) -- this can be construed as establishing a “citizenship-specific route” to EU law (Shuibhne) This spirit of generosity continued in Trojani and reached an apex in Grzelcyzyk where a French citizen was entitled to equal treatment insofar as he was not an “unreasonable” burden to the host Member State. Here, the CJEU made a sweeping statement regarding “financial solidarity” between nationals of host Member States and other Member States, limited by “temporality of residence”. The implication of cases such as Bosman, Gourmet and Carpenter is that the CJEU is prepared to protect citizens

Page 51

qua citizens, since the crux of these cases is that any “deterrence from exercising freedoms” would render the rights ineffective (Spaventa).

However, in the period leading up to Brexit, the courts, seemingly tamed by “political backlash” (Spaventa) and/or the UK referendum (O’Brien 2016), seemed to enter a reactionary phase of “citizenship exhaustion” (AG Sharpston), effectively back-pedalling on the expansionist pre-CRD lines of cases. Critically, what marked these “cold winds of change” (Barnard) was how the CJEU backpedalled from the broader (and hence more “generous”) TFEU citizenship provisions, opting instead to focus on the narrower CRD citizens’ rights provisions and their derogations

This was exemplified in Dano (2014), where the courts significantly reduced their promise of equal treatment and social expansion by imposing the right of residence as a prerequisite to unlocking equal treatment under Art.24 CRD. As Barnard and Butlin note, the stark contrast between the permissiveness of Martinez Sala against the restrictiveness of Dano indicates a rude awakening of the EU that it cannot force transnational solidarity in a tensed political climate lacking the “financial solidarity” envisioned, culminating in a knee-jerk inclination toward “managed migration”. By implication, this focused on a more economically dependent form of the interpretation of EU citizenship. This aptly explains the case law development, and the political climate is vital to contextualise this -- largely

attributed to the 2004 EU enlargement, there were increased concerns regarding benefit tourism, urging the courts to adopt a more sustainable approach. This culminated in cases such as Alimanovic and Garcia Nieto which ring the death-knell for the “promises” made in Grezelczyk and Martinez Sala, showing that if economically inactive citizens do not satisfy the CRD requirements for citizenship, they fall outside the scope of Art 21 TFEU without a need for individual proportionality assessment (unlike in Baumbast) Ultimately, the promise of “financial solidarity” has been reneged from the economically inactive by a politically-driven reassertion of “national citizenship”

The economically active

Perhaps on a different view, free movement rights were never promised to economically inactive citizens The EU’s retreat from “citizenship-based” rights was largely evaded by the economically active which could evince the aforementioned “genuine link” (O’Leary) by virtue of their employment (Commission v Netherlands). The very fact that jobseekers have a right to jobseekers’ allowance from Art.45 TEU regardless of the burden on the host state (Collins) signals the economic contribution of the individual which the EU attaches as a prerequisite to citizenship -- this is buttressed by the jobseeker qualification in Antoinessen that they needed a “genuine chance” of

accessing the labour market Therefore a restrictive interpretation of Art.45 would reduce free movement as a means for economic integration, contrary to broader social objectives of the EU in securing free movement for citizens. However, even for the economically active, this should be qualified: access to worker rights is a matter of scale, dependent on how economically active the individual is -- hence being an “empty promise” to vulnerable migrants and the working poor, opposing the appeal to the “market citizen” – it is a “sufficiently productive” market citizen

EU Case law (Lawrie Blum; Kempf) posits a broad approach to defining “work” – allowing for student workers and part-time work (Levin) As O’Brien astutely notes however, there appears to be a diversion between theory and practice, especially with the undefined limiting requirement of “genuine economic activity” past a de minimis threshold (Raulin), excluding “marginal/ancillary work” In practice, this therefore allows MS to establish high formal or informal earnings or hours thresholds with little to no EU guidance on how these assessments should work For instance, in the UK under the Minimum Salary Rules (as of April 2025), requires a minimum annual salary of £38,700 to be considered for worker status. Falling below this threshold switches the burden of proof on the claimant to show their work is genuine and effective. By necessary implication, the promise of free movement and

equal treatment rights is confined for those in privileged work positions with sufficient (high) pay. This would mean that migrants on more casual contracts, in less lucrative sectors of the economy could potentially be precluded from citizenship rights since their “economic contributions” are deemed to fall below the threshold. Therefore the promise of citizenship rights for what appears to be available for an inclusive category of “workers” at the EU level has not truly been delivered acrossboard at the national level to EU workers.

Non-moving citizens

Conversely, the promise of citizenship seems to have delivered its promise to both “moving” and “non-moving” citizens -- they can fall within the scope of Art 20 without the traditional “cross-border” element. The general principle in Saunders was that “wholly internal” situations would be excluded from the application of the free movement provisions However, developments in the case law have allowed: (1) dual-citizenship rights (Lounes) and (2) an expansion of the scope of Art 20 even to those in “wholly internal” situations like individuals in Ruiz-Zambrano who have never exercised their free movement rights, but a “threat to the substance” of their EU citizenship rights could be identified.

Ruiz can be seen as a “new route into the promised land” – of true, supranational citizenship (Kochenov), making redundant the arbitrary distinction between “crossPage 53

border” and “purely internal” situations. However, this “promise” has arguably been undermined by both the (1) ambiguity of the promise and (2) muddled dynamics between citizenship and fundamental rights.

In Chen, the third country national (TCN) parents were allowed to stay because of the child’s best interests–“dependency” of “vulnerable EU national minors at risk” (ChavezVilchez) being a precondition to derive residence rights at EU law (O, S, and L) The courts have therefore severely circumscribed the cases in which individuals can successfully plead a “threat to the substance of citizenship rights” , owing to its ambiguity (Schuibhne and Kroeze) The price to be paid for this uncertainty and ambiguity, as evinced in cases such as O and B and Dereci is that Ruiz is confined to its exceptional facts, reserved for “judgments of last resort” (Sarmiento and Sharpston)

Hence in reality, compared to the high point of citizenship (and hence utility under the “national welfare state”) falls short of third country nationals as well.

To conclude, it is argued that in spite of the “progressive interpretations” by the EU, the economic personhood of the EU still conforms to the homo economicus ascribed to the early “market citizen” – despite expansions in approaches to mobility and welfare, the economic undertones of the application of Treaty provisions prove that Kramer’s statement is not entirely accurate.

Criminology, Sentencing and the Penal System

Alldon Garren Tan | Mark: 80

What are the major problems facing the youth justice system in England and Wales today? How can they be addressed?

The biggest issue with the youth justice system is the responsibilisation and punishment of youth who offend Instead, emphasis must be put on prevention, diversion, and rehabilitation To this end, vulnerabilities in youth who offend ought to be recognised and addressed. Diversion and education must be pursued relentlessly. Crucially, youth who offend must be treated, not as offenders who deserve punishment, but as youths who deserve a second chance.

Prevention

The current youth justice system

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intervenes only after offences have been committed Instead, the youth justice system ought to intervene earlier by addressing the causes of offending. This ensures youths do not offend and come into contact with the youth justice system in the first place. Naturally, prevention entails identifying high-risk youths (Farrington, 2021).

While it is undoubtedly difficult to correctly and efficiently identify youths who are likely to offend, youths who are marginalised are a good place to start Notably, lookedafter youth are five times more likely to be sanctioned for an offence, and 33% of boys and 61% of girls in

custody report having spent some time in local authority care (Staines, 2016) Amongst those in custody, 31% had concerns relating to suicide or self-harm as a result of physical health or mental health issues, or learning disabilities (YJB, 2017).

Most youth who offend are therefore themselves victims of unhealthy relationships and structural inequalities (Mackenzie, Rogers and Dodds, 2014) The youth justice system should partner with local institutions, such as foster care and mental health services, to identify high-risk youths and provide holistic, tailored interventions at an early stage.

Doing so also enhances the ability of the youth justice system to tackle intersectional issues such as race and gender. For instance, an emphasis on more inclusive preventative policing practices enhances legitimacy and prevents the accumulation of distrust amongst Black youth, which in turn leads to the commission of crime (Wallace, 2018) Similarly, the provision of gender-specific preventative interventions more appropriately addresses the needs of girls, who tend to face more domestic and institutional injustices (Sharpe, 2011).

Diversion

Following from the preceding analysis of youth who offend as victims, treatment should aim not to punish, but to rehabilitate and support As far as possible, non-

custodial alternatives should always be pursued. This is emphasised by numerous international standards (Beijing Rules, 1985) and domestic policies (YJB, 2024). Custody hinders the formation of pro-social identities and fails to engage with youth who offend as, first and foremost, youths (Case and Haines, 2015). Indeed, custody is manifestly inappropriate for addressing the complex welfare needs of youth who offend (Goldson, 2002) It instead counterproductively enhances alienation and dissatisfaction.

Unfortunately, the current approach taken by the youth justice system is confused and overly punitive, influenced no doubt by the phenomenon of ‘popular punitiveness’ (Bottoms, 1995). For instance, the Minimum Age of Criminal Responsibility, set at 10, is significantly below international recommendations (UNICEF, 2015) Similarly, the removal of doli incapax by the CDA 1998 is reflective of the ‘politicisation of juvenile crime’ and the construction of youth who offend as heinous, reprehensible individuals deserving of punishment (Goldson, 2013) More broadly, developments in youth justice reflect a dangerous trend of adultifying and responsibilising youth who offend. Despite extensive evidence on its harms, youth who offend continue to be placed in manifestly inadequate custodial conditions which fail to support their rehabilitation (Howard League, 2016).

Instead, the welfare of youth who offend ought to be at the forefront of

youth justice To this end, diversion is of particular importance. Youth justice needs to account for the welfare of youth who offend, and in doing so, direct them towards services aimed at meeting their needs. A good example of this is the Youth Justice Liaison and Diversion scheme following the Bradley Report, 2009, which aimed to divert those with mental health issues to health and social care services equipped to meet their mental health and welfare needs In the same vein, point-of-arrest youth diversion schemes, which involve short assessments and quick referrals into light-touch, voluntary programmes have been effective at reducing the rate of reoffending (Tyrell et al, 2017)

More diversionary programmes such as these ought to be pursued in place of custody. Not only are they more humane, they are also more effective at encouraging desistance Drawing on research on desistance, allowing youths to continue building meaningful, positive relationships with their families and communities supports the development of new social identities necessary for desistance (Maruna, 2017). On the contrary, custody brings with it undesirable criminogenic effects (Gormley et al., 2002)

Finally, it is crucial to distinguish between formal and informal diversion. Formal diversions, i.e., diversions which leave criminal records, should be avoided (Reid, 2013). Rather than properly diverting

youth from the youth justice system, formal diversions bring youth who offend into the youth justice system (Bateman, 2002). Desistance in the long-term is hindered because criminal records reduce the range of opportunities available to youths to move away from offending identities (Cushing, 2014). Instead, informal diversions such as lower-level community sentences which do not leave criminal records were found to be significantly more effective than custodial sentences of all lengths at reducing reoffending rates (MoJ, 2012) Overall, the youth justice system must ensure that diversionary interventions are appropriately tailored. If they are excessively intensive, the normal processes of desistance may be inhibited (McAra and McVie, 2014)

Custody

If custodial sentences are nonetheless imposed, they ought to be structured around education. Education allows youth who offend to gain skills and qualifications for employment, crucial to desistance, as well as the process of growing and maturing (DoE, 2013) Efforts have been made to enhance the educational qualities of custody Secure Schools, following the Taylor Review, 2016, have been improved through, for instance, giving headteachers more autonomy, designing bespoke packages of support and education, and providing improved healthcare. An example of this is Oasis Restore Secure School, which opened in 2024, boasting apprenticeship

pathways and new measures to monitor progress. Secure Schools provide a useful blueprint for the youth justice system and should be further resourced. Custodial institutions ought to focus on education rather than incapacitation or punishment.

Nonetheless, the state of custodial institutions in general remains bleak. In 2017, not a single inspected custodial institution was ‘safe to hold children and young people’ (HMCIP, 2017). Custodial institutions continue to be riddled with issues, including deaths (Myatt and Rickwood, 2004), abuse (Jarman and Lanskey, 2019), lack of trust and support (HMIP, 2023), and self-harm and violence (YJB, 2021) It is no surprise, therefore, that custodial institutions are disastrously ineffective at addressing the needs of youth who offend (Goldson, 2020), with a reoffending rate of 66%, more than double that of the cohort average (YJB, 2021)

Moving forward, it is imperative that youth justice place a heavier emphasis on education and desistance within custodial institutions. To start, resource constraints in youth custodial institutions must be addressed At the most fundamental level, issues with safety and abuse must be resolved. Desistance can only take place if there is a safe space for nonoffending identities to flourish (Maruna, 2017). Once again, resource constraints will unquestionably be alleviated by increasing the use of diversions. Importantly, reforms to

custodial institutions must have the aim of education in mind. Rather than, for instance, keeping youth who offend in their cells for 23 hours a day (Howard League, 2016), resources must be channelled toward rehabilitative activities and programmes.

General Principles

Overall, while specific areas of the youth justice system are in need of reform, what is clearly more pressing is reform of the aims of the youth justice system as a whole, which currently treads a confusing line between punishment and welfare (Carlile Review, 2014) The primary consideration of youth justice must be the welfare of youths, who deserve to be treated differently from adults (Lynch, 2018) Welfare encompasses recognising

youth who offend as in need of support (Case and Haines, 2021), justifying diversions which are tailored to the needs of youth who offend, and which, ultimately, encourage rehabilitation and desistance. Welfare also entails communication with, and participation of, youth who offend (Hollingsworth, 2024), for only then

can their needs truly be heard and addressed Before specific reforms are pursued, the youth justice system must fix its most fundamental issue – its purpose.

Conclusion

The youth justice system needs to shift its focus from punishment to welfare. Currently, the youth justice system fails to rehabilitate and care for the needs of youth who offend Diversions are insufficiently used, while custodial institutions are unquestionably ineffective. Interventions ought to start earlier, with the aim of preventing, rather than curing Similarly, diversions and education must be at the heart of the youth justice system.

Moordale Secondary School is a highly successful state school in London. The school website and admissions policy states that:

‘Moordale Secondary School believes that students achieve their academic potential in an environment in which the distinctions and divisions between children are minimised and they are socially and culturally integrated. This underpins all aspects of school life at Moordale.’

The following school rules have been developed in accordance with this. First, all pupils must participate in all physical education classes at the school. Second, all pupils must eat the lunch provided by the school at the communal table in the dining hall. Third, all pupils must abide by the school uniform policy. Fourth, all pupils must participate in the school’s well-being practices during the breaktimes.

The physical education classes at Moordale consist of both athletics and swimming lessons. Students are required to complete one athletics lesson and one swimming lesson each week. Aimee is a 13-year-old student with feminist beliefs. Aimee asks the school for exemption from the swimming lesson. She informs the school that due to her feminist beliefs she is uncomfortable engaging in mixed sex swimming lessons where her body may be objectified. Aimee indicates that she is willing to complete two athletics classes per week instead of the one swimming lesson and one athletics lesson. Aimee is aware that there is an additional athletics class taking place at the same time as the swimming lesson and so there would be no disruption to the timetable. Alternatively, Aimee indicates that she would be willing to participate in a single sex swimming lesson.

Ffion Griffith

Mark: 77.5 Muna Panyasong Mark: 74

Kate Lin | Mark: 71

The school refuses Aimee’s requests on the grounds that it would be too difficult to make these adjustments. It also refuses to grant her exemption from the swimming lesson.

Kai is a 13-year-old student at the school. Kai has recently become vegan. Kai asks for permission to bring their own lunch to school and to sit on a separate table in the dining hall. The school refuses to grant Kai permission to bring their own lunch and refuses to grant Kai permission to sit on a separate table. Instead, the school offers to provide Kai with a vegan lunch which they must eat at the communal table. Kai is concerned that their meal will be contaminated by the meat dishes prepared in the school kitchen and eaten at the communal table.

Eric is a 15-year-old student at the school. Eric is of Christian faith. Eric has recently completed his Confirmation and would like to wear the Christian cross necklace that he was given for his Confirmation at school. The school uniform policy at Moordale precludes the wearing of any jewellery. Eric is refused permission to wear the necklace on the basis that it is not a mandatory part of his faith, and it is contrary to the ethos of Moordale to allow students to display religious symbols within the school.

Otis and Maeve are of Starburst faith. It is an important part of their faith that they engage in a Starburst meditation practice in the middle of the afternoon. The time at which their Starburst meditation practice should take place coincides with the afternoon break time at the school. Otis and Maeve thus ask for permission to engage in a Starburst meditation practice in a quiet room at school during the afternoon break time. The school refuses to allow them to engage in the Starburst meditation practice on the basis that the school rules state that all students must engage in a communal wellbeing session during the breaktime. Otis and Maeve are informed that they must partake in the school’s yoga session in the playground during the afternoon break.

Discuss.

Given the school’s status as a public state school, it qualifies as a public authority for the purposes of s6 HRA 1998. As such, the following pupils may bring claims to the appropriate domestic court alleging violations of the following Convention rights.

Aimee (A):

A may argue that the school’s (S’) refusal to exempt her from mixed-sex swimming lessons violates her rights under Art 8, Art 9, and Art 10 ECHR

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Under Art 9, A must first establish that her feminist beliefs meet a minimum threshold of conviction to fall within the remit of Art 9. Per Campbell and Cosans v UK, a belief must contain a ‘certain level of cogency, seriousness, cohesion, and importance’ to be accepted Per the factors in R (Williamsons) v Secretary of State, A’s feminist belief is consistent with the integral basic standards of human dignity and integrity, as it fundamentally relates to the equality of men and women. A’s belief is more than merely trivial – easily satisfied

given the importance of feminism in modern society A’s belief is on a fundamental problem, and is coherently intelligible As such, A’s belief rejected the objectification of her body – an expression of her ability to manifest her bodily autonomy how she wishes as a feminist, is likely to satisfy the requisite criteria

S’ refusal to exempt A from swimming classes is an interference with A’s rights. Per Eweida v UK, the courts may no longer deny interference merely because A chose to attend S, whether aware or not of its policies S’ interference must be prescribed by law, in pursuit of a legitimate aim, and the means chosen to achieve this must not be disproportionate. Whilst the school’s policy is prescribed by law and satisfies the pursuit of legitimate aim in desiring social integration and minimising divisions between students (thus being categorised under the protection of the rights and freedoms of others per Art 9(2)), the proportionality analysis is insufficient.

S’ blanket refusal to allow A any modifications or exemptions to their policy seems disproportionate (Bank Mellat). Although the aim of integrating students may be useful or desirable, this does not automatically make it ‘necessary’ (Syvato Parafiva v Ukraine). A has proposed reasonable alternatives that would not disrupt the school’s timetabling, as evidenced by the facts. In this context, S’ justification that the adjustment would be ‘too difficult’ appears not to hold up. A’s situation may be distinguished to that in R (TTT) v Michaela, wherein the school’s ethos was held to justify interference with Muslim students’

prayer time Unlike TTT, A’s fundamental belief does not introduce new practices or obviously undermine the school’s ethos, and the benefit of mixed swimming lessons cannot be argued to be more than marginal As such, A may successfully argue that S has unjustifiably interfered with her Art 9 right

Moreover, A may have a claim under Art 8 ECHR A may argue that her forced participation in S’ swimming lesson whilst wearing clothes that may leave her body vulnerable to objectification violates her right to respect for private life. Per Lady Hale’s reasoning in Northern Ireland, the state subjects people to an ‘agonising dilemma’ – this could apply here, as A faces the choice between disciplinary action from the school, or violating her own fundamental beliefs about feminism

Kai (K): K may argue that his belief of veganism falls within the scope of protected beliefs of Art 9 It has been established by W v UK that veganism falls within the scope of Art 9 As such, S’ refusal to allow K to bring their own lunch to school constitutes an interference with the manifestation of his belief in veganism – as abstaining from eating meat is clearly a manifestation of his veganism philosophy.

However, S’ provision of reasonable alternatives through offering to provide vegan meals demonstrates their attempt to accommodate K’s belief. K’s situation may be distinguished from Jackobski v Poland, wherein a Buddhist prisoner was not afforded any accomodations by prison officers for Page 61

his vegetarian diet (being a manifestation of his Buddhist beliefs) As such, S’ compromise of preparing vegan food for K to consume communally appears proportionate.

It seems improbable that K’s fear of contamination from other foods is an integral part of his veganism S’ insistence on communal dining appears to pursue the legitimate aim of social integration Their refusal to allow K to sit on his own supports this, particularly in light of S’ ethos emphasising social integration. As such, this appears to be a proportionate infringement of S’ right to manifest his belief.

Eric (E):

E may also allege that S has violated unjustifiably his right to manifest his religion under Art 9 ECHR. E’s scenario may be analogised to Eweida v UK, wherein two workers (a flight attendant and NHS nurse) were refused to wear crosses at work – as they were contrary to their employers’ dress code

In this instance, S’ argument that wearing a cross is not mandatory to the Christian faith was rejected in Eweida, as it was held applicants are not required to establish the necessity of the manifestation to the abidance of their underlying belief. As such, E is under no obligation to demonstrate the ‘necessity’ of wearing a cross to the Christian faith.

However, S’ uniform policy serves the legitimate aim of minimising any cultural or social distinctions between pupils to encourage integration as far

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as possible The blanket prohibition on all jewellery, regardless of whether it contains religious connotations or not, seems to directly correlate to the school’s emphasis on minimising religious and cultural distinctions between students In contrast to Eweida v UK, wherein BA struggled to demonstrate how the display of a cross would substantially interfere with their corporate image, S may argue here that the display of any religious symbols, including a cross worn by E, may substantially undermine the effectiveness of their integration principles In particular, the school may argue that the cross may have a proselytising effect on other students, and thus adversely affect their ethos (Kokkinakis v Greece).

As such, S’ prohibition of E’s wearing a cross seems proportionate in context of the school’s ethos

Otis (O) and Maeve (M):

O and M may allege that S’ refusal to allow them to manifest their Starburst meditation unjustifiably violates their right to manifest their religious beliefs under Art 9 ECHR Although the ‘Starburst’ faith is not explicitly held to be within the bounds of Art 9 by case law, the conviction’s reference as a ‘faith’ suggests it is an established belief system of sufficiently cogent and serious conviction, and thus falls within the scope of Art 9 (Williamson v SoS)

As such, S’ requirement that all students participate in the communal yoga during break time interferes with O and M’s manifestation As previously established, S pursues a legitimate aim in trying to minimise social and religious distinctions between pupils and aiming for them to integrate as far

as possible On a proportionality analysis of this scenario, it appears that S’ ethos and wellbeing programme does not justify preventing students from engaging in their own religious practices Whilst S may argue that their system is accommodating for others’ religious beliefs, it is clear that O and M are not easily accommodated because of the specific timing obligations of their belief Per Eweida v UK, O and M are under no obligation to prove this manifestation is mandatory to their religious belief

S’ strict imposition of participation in the yoga session seems to achieve the same goal as meditation does. Yoga is not a social endeavour – as such, students not taking part in the yoga practice do not appear to be missing out on an integral part of S’ ethos. Integration and necessary socialisation may take place at other times in the school day. As such, S’ imposition of mandatory yoga is not proportionate, and could be achieved through less

restrictive means Allowing O and M to fulfil their religious obligations would not fundamentally undermine S’ ethos.

Article 14 Claim:

In addition, O and M may claim alongside their Art 9 claim that they have been subject to unjustified discrimination under Art 14. S’ policy of mandatory yoga during the afternoon – whilst appearing neutral, may have a disproportionate effect on O and M, and any other members of the Starburst faith due to the temporal requirements of their faith However, it is unlikely that O and M’s claim will succeed, as the ECtHR has been reluctant to recognise the disproportionate impact on some groups over others as a result of domestic legislation (or in this case, school rules) (SAS v France). As such, O and M’s claim will succeed on the basis of Art 9, but not Art 14.

‘While it is relentlessly repeated that damages are compensatory, this needs to be heavily qualified.’ (WEIR) Discuss in relation to the Roman law of delict.

Weir makes two statements: (1) It is relentlessly repeated that damages are compensatory, and (2) this assertion needs to be ‘heavily qualified’. I must agree with his statement, in relation to the Roman law of delict Although the Roman law of delict is often compared to the modern English Law of Tort, the damages in delict were not wholly compensatory Penal features of the delicts were clearly present, because of the underdeveloped nature of the criminal law in ancient Rome Nevertheless, the accuracy of Weir’s statement depends on which delict it is measured against In this essay, I will be evaluating the four institutional delicts, addressing each of them in turn.

Lex Aquilia

Damages under the lex Aquilia were primarily compensatory, yet, it arguably possessed a few penal elements This suggests that Weir’s statement can be slightly modified here: the assertion that damages are compensatory should be slightly, rather than heavily qualified, in relation to the lex Aquilia

Firstly, the calculation of damages under Chapter I of the lex Aquilia highlights the compensatory nature of the delict Under the actio legis Aquiliae, damages lay for the ‘highest market value of the thing during the previous year’ (G3214)

Muna Panyasong Mark: 74

Chloe Saw | Mark: 76

This meant that, for example, if a slave when killed was lame or had lost an eye but had been sound at some point during the past year, damages lay for the highest value before he was injured, allowing the owner to obtain compensation beyond the damage he sustained. Although Borkowski suggests that this ‘vividly illustrates the penal nature of the delict’ (as supported by Justinian in J.4.3.9), I must disagree The assessment of damages was intended to get as close to the genuine value of the slave or animal as was practical, serving to protect the plaintiff against short-term fluctuations in currency values and against changes in the value of animals and slaves over an agricultural year (Scott). Therefore, this suggests that damages were calculated from the plaintiff’s point of view and were aimed at compensating the plaintiff for the true value of their property The fact that the wrongdoer may be liable for more than the loss he caused is merely secondary: this does not demonstrate the penal nature of the damages. Moreover, this is further supported by the expansion of the word ‘value’ in the Classical period: sometimes extra consequential losses were taken into account (D.9.23.pr, G.3.212). This clearly demonstrates that the damages were primarily aimed at compensating the plaintiff for the loss and consequential loss he suffered, rather than punishing the wrongdoer. Indeed, the damages arguably increasingly became more compensatory in character: in mature law, damages were determined according to the loss suffered by the plaintiff rather than the objective market value of the thing killed (Ulpian, D.9.2.21.2).

Secondly, the compensatory nature of damages of the lex Aquilia is also evinced in Chapter III. There was considerable dispute between jurists and subsequently academics about how damages were calculated: Daube, supported by Ulpian’s view (D92275), suggests that damages were ‘whatever the matter shall amount to in the next thirty days’. In contrast, Jolowicz suggests that Gaius was correct in that it was the ‘highest value during the preceding thirty days’ (G.3.218). Regardless, the fact that both Gaius and Ulpian were aiming to capture the value of the destruction or deterioration suffered by the property suggests that the damages were primarily compensatory

Yet, I acknowledge that the primarily compensatory nature of the damages for lex Aquilia must be slightly qualified: penal features were arguably retained. Under both Chapters I and III, a defendant who denied liability but was deemed liable had to fork out double of the damages (Gaius, D9221) As highlighted by Borkowski, this peculiar rule could be regarded as a penal feature of the delict

On the whole, however, the damages in lex Aquilia were clearly compensatory in nature. The fact that the actio legis Aquiliae could not be cumulated with other contractual actions highlights that it was a reipersecutory action (G49), aimed at recovering the value of the property for the plaintiff

Furtum and Rapina

In contrast, Weir’s statement is clearly accurate when measured against the damages in furtum and rapina

Firstly, the distinction between manifest and non-manifest theft, leading to a difference in damages, highlights that the damages were penal rather than compensatory. In the Classical period, the actio furti manifesti could be brought if the thief was caught while stealing the object or before bringing the object to his intended last destination (G.3.184, Ulpian, D47232) In contrast, the actio furti nec manifesti applied to ‘that which was not manifest’ (G.3.185). The penal nature of the delict is highlighted by the stark contrast in the damages awarded: the penalty was fourfold the owner’s interest in the property for actio furti manifesti, while it was twofold for the actio furti nec manifesti (G.3.190). Although Zimmermann labels that this distinction is ‘rather odd’ and a ‘roughand-ready’ one, I submit that this multiplication used in calculating damages for different situations of theft can be explained by recognising that the penalty was aimed at punishing the thief. The existence of manifest and non-manifest theft was the ‘most important distinction’ (Birks), because arguably a thief who was caught in the act of stealing by the owner or by another deserved greater

punishment for committing such a wrong so blatantly and obviously Although Maine hints that this can be viewed more in a compensatory manner because the outrage suffered by the owner is worse when he catches someone stealing his things, this is unconvincing. The multiplication of penalties worth much more than the value of the property itself suggests that the damages in furtum were clearly penal

Secondly, the features of the actio furti itself demonstrate how its damages were primarily penal, rather than compensatory in character Condemnation involved infamia and the actio furti was available in perpetuity. The fact that damages could always be recovered without a time limit suggest that it was more aimed at punishing the thief, because he would continue to have been guilty and deemed as having done something wrong even after time passed, while the plaintiff might not have had the need to be compensated for their loss after a long period of time Moreover, the availability of the cumulation of the actio furti with reipersecutory actions (vindicatio and condictio) and passively intransmissible nature of the action suggest that damages were penal rather than compensatory

Although Justinian viewed rapina as a mixed action (J42pr), consisting of both penal and compensatory functions, I submit that Weir’s statement still holds true in this case. Despite the fact that the action could not be cumulated with reipersecutory actions, condemnation still involved infamia (G4182) and damages lay for Page 66

fourfold the value of the thing in the first year (G3209) This therefore suggests that although more compensatory than furtum, the damages for rapina was still not entirely compensatory and possessed penal features

Iniuria

Weir’s statement is accurate in describing the damages in iniuria. Although it may be viewed as compensatory because the actio iniuriarum was only available for a year and the plaintiff had prove that his feelings had been hurt (Ulpian, D471011), it was largely penal in character and therefore describing it as ‘compensatory’ would require much qualification. Firstly, damages in iniuria were calculated based on non-pecuniary matters. It took into account the infringement of the plaintiff’s personality because he had to ‘specify and set out in detail the affront’ he suffered at the hands of the claimant (Ulpian, D.47.10.7.pr). The fact that property interests and actual monetary loss were not concerns taken into consideration by the Praetor (G3224225), but the gravity of the insult and standing of the respective parties were (Thomas), suggests that the damages were aimed at punishing the wrongdoer rather than compensating the plaintiff The action was clearly purposed for condemning the actions of the wrongdoer by punishing him in a manner proportionate to how much he hurt the plaintiff, as opposed to providing recompense to the plaintiff (who in most cases, did not suffer any actual loss) The availability of these damages for cases such as the

publishing of defamatory language (G3220) and interrupting someone in court to insult them (Ulpian, D4710133), where no actual physical loss was suffered by the plaintiff, therefore demonstrates the penal nature of the delict

Moreover, the penal nature of the damages is further highlighted by the features of the actio iniuriarum. The availability of atrox iniuria, which took into account the ranking of the victim (J.4.4.9) and place where the insult took place (D471091) demonstrates how the law was aimed at deterring and condemning those who had committed particularly serious insults or shown much disrespect. The infamia involved in the condemnation of the wrongdoer also shows that the damages were penal

Conclusion

In sum, Weir is largely correct in asserting that damages are not entirely compensatory: the assumption that they are should be ‘heavily qualified’, in relation to the Roman law of delicts. Although some damages in delict were more compensatory in character than others, all of them retained penal features As Borkowski suggests, delicts ‘partially fulfilled the role of a penal law’, at least until the late Republic. Therefore, damages cannot be said to be solely compensatory

commercial law

Gianna Lai | Mark: 75

Stuart owns a comic book and collectibles store, called ‘The Comic Center of Pasadena’, and employs Denise as the store manager. As per Stuart’s clear instructions, Denise cannot purchase or sell any item worth over GBP 5,000 without express approval by him. Despite this, Denise regularly presents herself as ‘the boss’ at the store.

One day, Wil visits the store and offers to sell a mint-condition Flash #123 comic book for GBP 12,000. Denise, confident that Stuart would want the rare comic book as this would complete the store’s collection, seizes the opportunity and agrees to buy it without express permission. Wil leaves the comic book at the store to attend an audition, expecting to receive payment the next day. When Stuart returns, he tells Wil that the store has no liquidity to purchase the comic book.

Meanwhile, Penny is looking to buy a gift for Leonard; she finds a limited-edition Star Wars figurine priced at GBP 8,000. She remembers Howard once saying that Denise has given discounts before. When Penny asks for a better price, Denise falsely claims that Stuart had recently authorised her to offer discounts up to 20% and sells it to Penny for GBP 6,400. When Penny returns to pay and collect the figurine, Stuart refuses to honour the deal, insisting that Denise had no authority to offer the discount.

Finally, Stuart is approached by the Library of Congress, which wants to buy a rare first edition of the Hobbit—which Denise had already sold to an anonymous buyer. Unbeknownst to Stuart, the buyer was actually Sheldon, who had used Amy as an agent to purchase the book without disclosing that he was the true buyer. Now that Stuart realises that the Library’s offer is significantly higher, he tries to buy it back from Sheldon, but Sheldon refuses, leaving Stuart regretting the lost opportunity.

Advise Stuart, Wil, Penny, and Sheldon on the basis of English law, which applies to all contracts.

W – sale of Flash #123 comic book Stuart (St) is the principal of D

Actual authority

Although D has actual authority, by purchasing the Flash comic book for £12,000 without asking for P’s express approval despite P’s clear instructions to do so, D exceeds the limits of her actual authority.

D may have implied actual authority by virtue of St’s appointment of D to the role of a shop manager, such that she is authorised to do anything that falls within the usual scope of the role of a shop manager (Hely-Hutchinson v Brayhead Ltd). However, the express restriction on D’s express actual authority also qualifies any implied actual authority she may have (The Unique Mariner), such that D has no actual authority to conclude the deal.

Apparent authority

For D to have apparent authority to purchase the Flash comic book, there must be a representation as to D’s authority either from St, the principal W must rely on this representation, which results in W’s change of position.

First, although D holds herself out to be ‘the boss’, such would not suffice as a representation, since an agent cannot rely upon her own representation as to her actual authority to clothe herself with authority (The Ocean Frost). However, by appointing D to carry out the role of the shop manager, as the principal, St holds D out to have the authority to conduct the day-to-day dealings within the shop, which includes the trading of comic books (Freeman & Lockyer), such that a relevant representation is made

Secondly, since W enters into the contract with D upon D’s agreement to purchase the comic book, W clearly relies on the representation Reasonable reliance was the original test, under which reliance would not be found where the third party was on notice of D’s lack of authority (Overbrook Estates Ltd v Glencombe Properties Ltd). However, Lord Neuberger’s decision in Akai Holdings suggested that a test of rationality sufficed: upon finding a relevant representation, reliance can be presumed unless the third party’s belief in the agent’s authority was dishonest or irrational This broader test faced. heavy criticism: Watts

argued that this lower test of irrationality made it too easy to establish apparent authority, and should be ‘forcibly rejected, as inconsistent with principle and authority’. Acknowledging these criticisms, the Privy Council in East Asia Company v PT Satria, which was later affirmed by the Supreme Court in Law Debenture Trust Corp v Ukraine and Philipp v Barclays Bank UK plc, reverted the test back to one of unreasonableness: there would not be reliance is established if a reasonable person who had the background information available to parties at the relevant time would have made inquiries, but the third party failed to do so Here, although the price of the Flash comic book is very high, given that it is in mint condition and it may be a unique edition which is worth more, the high price and D’s immediate agreement does not seem to suggest any suspicious circumstances concerning D’s actual authority Therefore, W reasonably relied on the representation, notwithstanding W’s lack of inquiry over D’s authority.

whether agency is complete: incomplete agency would require detriment to be proven (Norfolk), while entering the contract would suffice for complete agency (The Tatra). In this case, given that D has actual authority to contract on St’s behalf, subject to the qualification, D is a complete agent, such that it is unnecessary for any detriment to W to be proven. As such, W simply entering into the contract constitutes a change of position, satisfying all 3 requirements of apparent authority

Thirdly, an issue arises as to whether a change of position has been established, given the competing case law: on one hand, Norfolk CC v Secretary of State for the Environment suggests that detriment beyond a mere ‘token start’ was required; on the other hand, The Tatra suggests that this requirement would be satisfied if D merely entered into the contract in reliance of the representation. These two cases may be reconciled by distinguishing them depending on

As D had apparent authority to act as she did, St is estopped from claiming that he is not bound by the contract if W sues on the contract (Freeman & Lockyer; Rama). Given that the Flash comic book is a specific good, which is identified at the time the contract is made (s61 SGA), property passes when the parties intend it to (s17(1) SGA) Since there does not seem to be any contrary intention, applying the default rules, property passed upon the conclusion of the contract (s18R1 SGA). Accordingly, W may sue on the contract, and make a claim for an action for the price under s49(1) SGA to recoup the price of £12,000, and St would be unable to deny the existence of a contract based on the apparent authority.

P – purchase of Star Wars figurine at £6400

Actual authority

D has no express authority, whether express or implied (as explained above), to sell the figurine without asking for S’s express approval, since it is at the price of £8000. Additionally, although St had not given any express instructions prohibiting D from giving out any discounts to the customers when selling any of the figurines to them, D’s express authority to sell is subject to an implied restriction that the authority must be exercised honestly and in the interests of St (Philipp v Barclays Bank UK plc) Therefore, since D offers a significant discount of 20% in response to a simple request for a better price, especially when there was no indication that P would be unwilling to buy it without a discount, this likely constitutes an abuse of express mandate, since it goes against St’s interest of obtaining the best price possible for his figurines There is no actual authority

Apparent authority

The requirements of apparent authority are already outlined above Although St has made a representation by placing her in the role of a shop manager (Freeman & Lockyer), given that shop managers do not often have the authority to give out discretionary discounts which are not clearly stated within the shop (e.g. by labels and posters which state that certain items are on a discount), the ability to offer discounts likely falls outside the scope of the representation of D’s authority by virtue of D’s appointment as shop manager (United Bank of Kuwait Ltd v Hammoud).

However, since D states that she can offer discounts when asked, an issue arises over the application of the rule against self-authorising agency Whilst the orthodox rule is that an agent cannot rely upon his own representation as to her actual authority to clothe herself with authority (The Ocean Frost), such as by making a representation that the principal agreed to confer actual authority on the agent to agree to the transaction (Thanakharn v Akai Holdings), the position differs when communicating agents are concerned. In First Energy, the Court of Appeal held that a senior manager’s inaccurate representation as to the credit committee’s decision bound the bank: the manager’s appointment to his position constituted a representation from the principal that he had authority as a communicating agent Accordingly, the company was not on notice of the limitations to the manager’s actual authority to communicate decisions, despite their awareness of the manager’s lack of authority to agree on the transaction itself, establishing reasonable reliance. Subsequently, Kelly v Fraser followed this position, where the human resources department’s inaccurate statements as to the acceptance of pension funds bound the trustees of a pension fund, following a similar logic in establishing the elements of representation and reasonable reliance On the facts, the rule against self-authorising agency is engaged: D represents falsely that St has given him the authority to offer discounts up to 20% (as in The Ocean Frost and Skandinavska (SGCA)), rather than simply communicating a wrong

decision from St (as in First Energy and Kelly v Fraser) Since there is no relevant representation, no apparent authority is established

Breach of warranty

Although P is thus unable to enforce the deal, P may nonetheless try to argue for a breach of warranty against D, which requires D to have asserted that she had St’s authority to act, and this untrue assertion induces P into entering into the contract, and as a result, P suffers loss (Firbank’s Executors v Humphreys). First, D asserted that she had St’s authority to offer the discount of 20% Even if D did so under an honest mistake that she was entitled to do so (which seems unlikely), it is immaterial as this is a strict liability claim with no requirement of fault on D’s part (Firbank’s Executors v Humphreys; Suart v Haigh) Second, this clearly untrue assertion over the extent of D’s authority induced P into entering the contract P clearly lacked knowledge (Halbot v Lens) and was not on notice of C’s lack of authority: although one may normally wonder whether a mere shop manager would be able to offer such discounts, since she was told by L that D would do so, this likely seeks to defeat any requirement to inquire However, since it does not seem that P has suffered any loss, the breach of warranty is unlikely made out

S – undisclosed agency

Since there is no indication that D sold the book at a price higher than £5000, D likely has express actual authority to sell. However, even if D did not ask for S’s express permission, the analysis in relation to the W’s transaction directly applies, such that D would have had apparent authority to sell in any case A contract is concluded between St and A, Sh’s agent. Therefore, St is already bound by the contract with A

However, the issue is whether Sh will be able to enforce the contract with St. Since A acts on Sh’s behalf without revealing to do so, A is acting for Sh on an undisclosed basis. Therefore, for Sh to be able to exercise contractual rights to compel, Sh must be party to the contract, which requires him to intervene into the contract

For Sh to intervene, first, A must act with actual authority at the time A made the contract as the principal (Welsh Development Agency v Export Finance), which A does, since Sh directly instructed A to make the purchase. Second, A must have intended to exercise the actual authority While this used to be a subjective inquiry over what the agent actually thought in the past (National Oilwells, concerning unnamed agency), the old subjective test has been expressly rejected on grounds that it would lead to ‘wholly unacceptable uncertainty’ The current test is whether the purported agent had communicated to the supposed principal an intention to contract on his behalf (Magellan Spirit ApS v Vitol SA) This is clearly satisfied, since Sh is clearly aware that A bought the hobbit

book on his behalf. Therefore, the requirements for Sh’s intervention is prima facie established.

As a last ditch attempt, St may seek to argue that he never would have agreed to the deal, had he known that A was acting for Sh and not herself. Therefore, St may argue that the personality limitations from Said v Butt applies, whereby Sh is precluded from intervening where there is a personal reason why St does not want to contract with Sh directly, and Sh is aware of this reason. It is unclear that this fact pattern is even satisfied, since St does not seem to have any limitation on who can buy the book. However, even if this fact pattern is satisfied, Said v Butt is better explained as based on an implied contractual exclusion of intervention due to the peculiar characteristics of an opening night performance (ie tickets for a first night are non-transferable), rather than establishing a true personality

as explained by Lord Millett in Shogun Finance This is further supported by the subsequent case of Dyster v Randall & Sons, where a principal was allowed to intervene on an agreement to sell two plots of land after using an undisclosed agent to secure the deal, despite knowing that the third party would refuse to deal with him directly or through a disclosed agent. On the facts, since the contract to sell the first edition of the Hobbit lacks the peculiar nature of being non-transferable, unlike the opening night tickets in Said v Butt, the current case is closer to Dyster and can be distinguished from Said v Butt, such that the personality limitation does not bar Sh from intervening By intervening, Sh is added into the contract, in addition to A rather than in substitution of A (The Ospery) Therefore, St must send the book to Sh. Otherwise, St may face a claim by Sh for damages for nondelivery (s51(1) SGA).

Per Incuriam Lent Edition 2026

ARTICLES FROM CAMBRIDGE STUDENTS

President’s

Foreword

editor’s welcome

Table of Contents

Footnotes

When AI Acts for Us: Agentic AI and the Limits of English Law

Introduction

Contract

Tort

Unjust Enrichment

Conclusion

Footnotes

The Mens Rea of Genocide: Rethinking

Dolus Specialis Esmée Cadogan

The Mens Rea of Genocide: Rethinking

Dolus Specialis

Alignment with the purpose of the Convention

The Mens Rea of Genocide: Rethinking

Dolus Specialis

Difficulties of proof

Dual and instrumental purpose cases

Predictability

Meaning of Destroy

Alignment with the purpose of the Convention

Travaux préparatoires

Interpretation

of the forcible transfer clause

Inconsistent reasoning

Conclusion

Bibliography

TRIPOS ESSAY SELECTION GUIDLINES

LAND LAW

Possession as Adverse, Exclusive or Vacant: A Legal Tool for Acquisition

Possession as a Determinant of Rectification and Overriding Interests

A. Schedule 4 Rectification and Proprietary Protection

B. Overriding Interests and the Role of Actual Occupation

The

law OF tort

Standing

Causation

Damages

Defences

Development risk

Causation

Damage

JURISPRUDENCE

Incompatibility between Finnis and Hart

Some potential compatibilities

Conclusion

European Union Law

Economically inactive

Non-moving citizens

Custody

General Principles

Conclusion

Article 14 Claim:

Lex Aquilia

Furtum and Rapina

Iniuria

Conclusion

commercial law

Gianna Lai | Mark: 75

Apparent authority

Actual authority

Apparent authority

Breach of warranty

S – undisclosed agency