Towards a Normative Defence of Provocation in England and Ireland

This article compares, in the light of the House of Lords’ decision in R v Smith (Morgan James), the English and Irish approaches to the objective test in provocation. Though the law on this point has developed in radically different directions as between England and Ireland, both jurisdictions demonstrate a profound dissatisfaction with the objective test in its traditional formulation combined with a reluctance to dispense with it altogether. It is suggested that Lord Hoffmann’s approach in Morgan Smith, by drawing out the essentially normative function of the objective test, provides a useful way forward for the law on both sides of the Irish Sea.

The EU Constitution of Social Governance in an Economic Crisis: in Defence of a Transnational Dimension to Social Europe

Conventional wisdom has it that the EU is unable to promote viable social integration, which contrasts with its commitments to improving working and living conditions and to social values and goals such as solidarity, social protection and social inclusion. This
article challenges two diff erent standpoints: on the one hand, competitive neoliberalism demands that the EU focuses on economic integration through legally binding internal market and competition rules even if Member States can only maintain a limited commitment to social inclusion, while authors defending the social models unique to the continent of Europe demand that the EU rescinds some of its established legal principles in order to make breathing space for Member States to maintain market correcting social policies. Both positions convene that there should be no genuine social policy at EU level.
This article uses scenarios of widely discussed rulings by the Court of Justice to illustrate that legally enforceable economic integration would prevent most Member States from achieving sustainable health services, labour relations and free university education on the basis of national closure. Since the EU has limited legislative competences to create EU level institutions to balance inequalities, it derives a Constitution of Social Governance from the EU’s values, proposing that the Court of Justice develops its urisprudence into an instrument for challenging European disunion induced by new EU economic governance

Scotland’s Curriculum for Excellence: a defence of autonomy and personhood.

Curriculum for Excellence, Scotland’s 3-18 curriculum, has been described as ‘the most significant curricular change in Scotland for a generation’ (McAra, Broadley and McLauchlan, 2013:223). The purpose of the curriculum is ‘encapsulated’ in four capacities in order that learners become i) successful learners, ii) confident individuals, iii) responsible citizens, and iv) effective contributors. With particular reference to these capacities, we explore the principle of autonomy as it pertains to both individual and collective flourishing seeking to disarm commonplace criticisms of autonomy by arguing that it might be put to work in CfE as a potentially multi-dimensional, context-sensitive concept that is relational as well as individual. We conclude that the four capacities lend themselves to re-consideration and re-mapping in pursuit of autonomy and flourishing premised on the principles of liberal personhood.

Contracts for the Sale of Land: Understanding the Impecuniosity Defence

Where either the seller or buyer of landed property fails to complete a contract to sell land the non-breaching party has a right to seek specific performance of the contract. This remedy would compel the party in default to perform the contract on pain of being held in contempt of court if the court's order is not obeyed. The defaulting party would not be able to satisfy its obligations under the law by paying a sum of money as damages for breach of contract. This paper considers the impecuniosity defence to specific performance as recognised by courts in Northern Ireland, the Republic of Ireland, Australia and New Zealand. Where the buyer demonstrates that he or she simply cannot raise the funds to buy the property specific performance will not be decreed and the court will make an award of damages for breach of contract measured by the difference between the contract price and the market price of the property at the time of default. The paper considers the nature and parameters of this defence and how it differs (if at all) from the alternative defence of extreme hardship. The paper addresses the question of whether it might be better to move to a position where sellers of land in all cases no longer enjoy a presumption of specific performance but have to demonstrate that the alternative remedy of damages is clearly inadequate. If this should be so the paper goes on to consider whether abolition of the presumption in favour of specific performance for sellers should lead to abolition of the presumption of specific performance for buyers, as is the position in Canada following the Supreme Court's decision in Semelhago v Paramadevan [1996] 2 SCR 415.

Cut down by some cowardly miscreants’: Plant maiming, or the Malicious Cutting of Plants as an Act of Protest in Eighteenth and Nineteenth Century Rural England

Since the publication of Hobsbawm and Rudé's Captain Swing our understanding of the role(s) of covert protests in Hanoverian rural England has advanced considerably. Whilst we now know much about the dramatic practices of incendiarism and animal maiming and the voices of resistance in seemingly straightforward acquisitive acts, one major gap remains. Despite the fact that almost thirty years have passed since E. P. Thompson brought to our attention that under the notorious ‘Black Act’ the malicious cutting of trees was a capital offence, no subsequent research has been published. This paper seeks to address this major lacuna by systematically analysing the practices and patterns of malicious attacks on plants (‘plant maiming’) in the context of late eighteenth- and early nineteenth-century southern England. It is shown that not only did plant maiming take many different forms, attacking every conceivable type of flora, but also that it was universally understood and practised. In some communities plant maiming was the protestors' weapon of choice. As a social practice it therefore embodied wider community beliefs regarding the defence of plebeian livelihoods and identities.

The right of access to a lawyer in terrorist cases

This is a survey of the applicable international human rights standards concerning the right which alleged terrorists have to access a lawyer.

Presentism and ontological symmetry

In this paper, I argue that there is an inconsistency between two presentist doctrines: that of ontological symmetry and asymmetry of fixity. The former refers to the presentist belief that the past and future are equally unreal. The latter refers to the A-Theoretic intuition that the past is closed or actual, and the future is open or potential. My position in this paper is that the presentist is unable to account for the temporal asymmetry that is so fundamentally a part of her theory. In Section I, I briefly outline a recent defence of presentism due to Craig, and argue that a flaw in this defence highlights the tension between the presentist's doctrines of ontological symmetry and asymmetry of fixity. In Section II, I undertake an investigation, on the presentist's behalf, in order to determine whether she is capable of reconciling these two doctrines. In the course of the investigation, I consider different asymmetries, other than that of ontology, which might be said fundamentally to constitute temporal asymmetry, and the asymmetry of fixity in particular. In Section III, I also consider whether the presentist is able to avail herself of some of the standard B-Theoretic accounts of the asymmetry of fixity, and argue that she cannot. Finally, I conclude that temporal asymmetry cannot be accounted for (or explained) other than through the postulation of an ontological asymmetry.