Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines the claim that, between law and morality there is a connection which is in some sense ‘necessary’, and that it is this which deserves to be taken as central, in any attempt to analyse or elucidate the notion of law. The chapter attempts to separate and identify some long-entangled issues. The first of these issues concerns the distinction within the general sphere of morality of the specific idea of justice and the special features which account for its peculiarly intimate connection with law. The second concerns the characteristics which distinguish moral rules and principles not only from legal rules but from all other forms of social rule or standards of conduct.
Chapter
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter considers two principal sources of doubt concerning the legal character of international law and, with them, the steps which theorists have taken to meet these doubts. Both forms of doubt arise from an adverse comparison of international law with municipal law, which is taken as the clear, standard example of what law is. The first has its roots deep in the conception of law as fundamentally a matter of orders backed by threats and contrasts the character of the rules of international law with those of municipal law. The second form of doubt springs from the obscure belief that states are fundamentally incapable of being the subjects of legal obligation, and contrasts the character of the subjects of international law with those of municipal law.
Chapter
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This Postscript attempts to reply to some of the criticisms urged by R. M. Dworkin in many of the seminal articles collected in his Taking Rights Seriously (1977) and A Matter of Principle (1985) and in his book Law's Empire (1986). The focus is on Dworkin's criticisms because he has not only argued that nearly all the distinctive theses of this book are radically mistaken, but he has called in question the whole conception of legal theory and of what it should do which is implicit in the book. The first part of the Postscript is concerned with Dworkin's arguments. The second part considers the claims of a number of other critics that, in the author's exposition of some of his theses, there are not only obscurities and inaccuracies but at certain points actual incoherence and contradiction.
Chapter
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter considers law as a concept and in its context. It examines key legal concepts such as law and morality, jurisprudence, the legitimacy of laws, the rule of law, and the separation of powers, looking at these in both theory and practice. It includes consideration of the virtue, duty, and consequentialist ethical theories, and legal theories including natural law, legal positivism, realism, and critical legal studies.
Chapter
This chapter discusses the relationship between the ancient classical theory of natural law and its application to contemporary moral questions. It considers the role of natural law in political philosophy, the decline of the theory of natural law, and its revival in the twentieth century. The principal focus is on John Finnis’s natural law theory based largely on the works of St Thomas Aquinas. The chapter posits a distinction between ‘hard’ and ‘soft’ natural law, examines the notion of moral realism, and examines the tension between law and morality; and the subject of the moral dilemmas facing judges in unjust societies.
Book
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. The Concept of Law is an important work of legal philosophy. It was first published fifty years ago. This book includes a new introduction that sets the book in the context of subsequent developments in social and political philosophy, clarifying misunderstandings of Hart's project and highlighting central tensions and problems in the work. Topics covered include: sovereign and subject, the law as the unions of primary and secondary rules, formalism, rule-scepticism, justice, morality, and international law.
Chapter
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The trust is an important invention of equity, a branch of English law compatible with common law. The history of equity oscillates between compatibility and competition with common law. This chapter serves as an introduction to equity and trusts. It outlines the major stages in the historical development of equity and trusts, examines the theoretical distinction between equity and the common law, explains how to correctly use the maxims and doctrines of equity, and discusses the distinction between equity as an inventive, flexible, remedial branch of law, and equitable institutions that are now settled and established, including the trust and the mortgage. The chapter also considers equity in relation to morality, co-operative remedies in equity and common law, equity and crime, and equity and restitution, before concluding with an assessment of the place of equity in the modern world and its possible future development.
Chapter
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter considers the requirements for a design to be protected, with particular reference to the requirement that there be a design. It begins by outlining the requirements for validity before turning to the definition of ‘design’ with respect to registered designs in the UK as well as unregistered designs, citing three key elements of this definition: appearance, features, and product. It also examines three types of design that are excluded from the very broad definition of design: designs dictated solely by technical function; designs for products that must be produced in a specific way to enable them to connect to another product; and designs that are contrary to morality or public policy.
Chapter
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the ‘absolute’ grounds for refusing to register a trade mark as set out in section 3 of the Trade Marks Act 1994. It first looks at the reasons for denying an application for trade mark registration before analysing the absolute grounds for refusal, which can be grouped into three general categories: whether the sign falls within the statutory definition of a trade mark found in sections 1(1) and 3(1)(a) and (2) of the Trade Marks Act 1994; whether trade marks are non-distinctive, descriptive, and generic; and whether trade marks are contrary to public policy or morality, likely to deceive the public, or prohibited by law, or if the application was made in bad faith. Provisions for specially protected emblems are also considered.
Chapter
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter considers law as a concept and in its context. It examines key legal concepts such as law and morality, jurisprudence, the legitimacy of laws, the rule of law, and the separation of powers, looking at these in both theory and practice. It includes consideration of the virtue, duty, and consequentialist ethical theories, and legal theories including natural law, legal positivism, realism, and critical legal studies. Consideration is given to UK and international factors to give the broadest possible context, including identifying interdisciplinary perspectives. Real life examples are provided and discussed to aid deeper understanding of the concepts referred to.
Chapter
David Ormerod and Karl Laird
It is neither easy to define crime nor identify the aims of criminal law but some characteristics may be universal to every crime, including that it involves public wrongs and moral wrongs. ‘Public wrongs’ reflect the important role of the public in punishing crimes. A crime incorporating a moral wrong implies that a ‘wrong’ is done or harm to others is involved but experience suggests that morality and criminal law are not coextensive. The chapter introduces students to thinking about criminalization and the need to guard against overcriminalization. It also examines the principal sources of criminal law: common law, statute, EU law, international law and the European Convention on Human Rights (ECHR). Problematically, important and serious offences and most defences in English law derive from common law rather than statute, and some offences—from public nuisance to gross negligence manslaughter—have been challenged recently on grounds of certainty and retrospectivity.
Chapter
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter considers the requirements for a design to be protected, with particular reference to the requirement that there be a design. It begins by outlining the requirements for validity that are set out in Article 25(1) of the Community Design Regulation before turning to the definition of ‘design’ with respect to registered designs in the UK and the European Union as well as unregistered Community designs, citing three key elements of this definition: appearance, features, and product. It also examines three types of design that are excluded from the very broad definition of design: designs dictated solely by technical function; designs for products that must be produced in a specific way to enable them to connect to another product; and designs that are contrary to morality or public policy.
Chapter
This chapter examines how the constitution has addressed the question of the geographical separation of government power in the United Kingdom of England, Scotland, and Wales, and discusses the Scotland Act 1998 and the Government of Wales Acts of 1998 and 2006. It argues that although the Scotland Act 1998 and Government of Wales Act 2006 fall short of creating a ‘federal’ UK constitution similar to how the notion is understood in the United States, the constitutional significance of the devolution legislation should not be underestimated. The chapter also discusses the conduct and outcome of the 2014 independence referendum in Scotland. Consideration is given to the leading Supreme Court judgments on the nature and extent of the Scots Parliament’s legislative powers, and to the contents and implications of the Scotland Act 2016.
Chapter
Robert Merkin, Séverine Saintier, and Jill Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter examines contracts that are tainted by illegality or otherwise contrary to public policy, and how illegality affects the parties’ positions following the hugely influential Supreme Court decision of Patel v Mirza. A contract may be illegal from the beginning or illegality may arise as a result of statute (for example, express statutory prohibitions). Examples of illegal contracts are those intended to commit crimes or contracts prejudicial to sexual morality. As a general principle, illegal contracts cannot be enforced and benefits conferred in the performance of an illegal contract cannot be recovered. There are some exceptions, however, such as where the parties are not in pari delicto (not equally guilty), or where the claimant can establish his right to the money or property transferred without having to rely upon the illegal contract. This chapter also examine the law’s treatment of contracts in restraint of trade, including exclusive dealing and exclusive service agreements.
Chapter
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the ‘absolute’ grounds for refusing to register a trade mark as set out in section 3 of the Trade Marks Act 1994, Article 3 of the Trade Marks Directive, and Article 7 of the European Union Trade Mark Regulation (EUTMR). It first looks at the reasons for denying an application for trade mark registration before analysing the absolute grounds for refusal, which can be grouped into three general categories: whether the sign falls within the statutory definition of a trade mark found in sections 1(1) and 3(1)(a) and (2) of the Trade Marks Act 1994; whether trade marks are non-distinctive, descriptive, and generic; and whether trade marks are contrary to public policy or morality, likely to deceive the public, prohibited by law, or if the application was made in bad faith. Provisions for specially protected emblems are also considered.
Chapter
This chapter examines the definition of a registrable trade mark, absolute grounds for refusal or invalidation of a registered trade mark, the extent to which objections can be overcome through proof of distinctiveness acquired through use and the rules on revocation of a registered trade mark, both at national level for UK trade mark registrations and at EU level for the EU trade mark. It examines these issues looking at many different kinds of trade mark, from traditional work marks and logos to so-called ‘non-conventional’ trade marks such as three-dimensional product shapes, sounds, smells, colours, and position marks.
Chapter
Robert Merkin KC, Séverine Saintier, and Jill Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. This chapter examines contracts that are tainted by illegality or otherwise contrary to public policy, and how illegality affects the parties’ positions following the hugely influential Supreme Court decision of Patel v Mirza. A contract may be illegal from the beginning or illegality may arise as a result of statute (for example, express statutory prohibitions). Examples of illegal contracts are those intended to commit crimes or contracts prejudicial to sexual morality. As a general principle, illegal contracts cannot be enforced and benefits conferred in the performance of an illegal contract cannot be recovered. There are some exceptions, however, such as where the parties are not in pari delicto (not equally guilty), or where the claimant can establish his right to the money or property transferred without having to rely upon the illegal contract. This chapter also examine the law’s treatment of contracts in restraint of trade, including exclusive dealing and exclusive service agreements.
Chapter
Robert Merkin KC, Séverine Saintier, and Jill Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. This chapter examines contracts that are tainted by illegality or otherwise contrary to public policy, and how illegality affects the parties’ positions following the hugely influential Supreme Court decision of Patel v Mirza. A contract may be illegal from the beginning, or illegality may arise as a result of statute (for example, express statutory prohibitions). Examples of illegal contracts are those intended to commit crimes or contracts prejudicial to sexual morality. As a general principle, illegal contracts cannot be enforced, and benefits conferred in the performance of an illegal contract cannot be recovered. There are some exceptions, however, such as where the parties are not in pari delicto (not equally guilty), or where the claimant can establish his right to the money or property transferred without having to rely upon the illegal contract. This chapter also examine the law’s treatment of contracts in restraint of trade, including exclusive dealing and exclusive service agreements.
