Modern Law

Sunday Trading defence. (iii) Although the principles articulated by the majority produced a fair result on the facts, the arguments of doctrine and precedent employed to justify the principles were not persuasive. (iv) The decision has permitted a critical ambiguity in the scope of the Bowmaker rule to linger on. The 'unruly horse' of public policy continues its blind gallop through the doctrinal forests of illegality.

The development of new media industries, stimulated by the technology of digitalisation, has thrown up an important literature on mechanisms for regulation and control. In this article we elaborate on and develop Lawrence Lessig'smodalities of regulation'analysis. As we reconceive them the four basic control forms are premised upon hierarchy, competition, community and design and can be deployed in fifteen pure and hybrid forms. This analysis is enriched through elaborating on the essential elements of control systems (standard- ...

We would like to thank Gunther Teubner and Michael King for their helpful comments on an earlier draft of this article. Few of these cases are reported, or used, as precedents. They usually mark the last reference to the case by courts, but not the last word of lawyers: see Sir John May's Final Report, 'Inquiry into the Circumstances Surrounding the Convictions Arising out of the Bomb Attacks in Guildford and Woolwich in 1974' (1993-94) HC 449. Cases so important for the legal system are relatively unimportant inside the legal system. 2 The nearest the Court ever comes to implying innocence in a case, in which all the grounds of appeal have been accepted and the original conviction thoroughly discredited, are the words used in the overall conclusion in the judgment in Judith Ward's appeal: 'as a result a grave miscarriage of justice has occurred': R v Ward (1993) 96 Cr App R 1, 67. 1

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EU scholarship has seen several 'turns' during the last decade-most of them are theoretical, but some have also been empirical and even methodological. The most notable ones have been the institutionalist turn (eg Aspinwall and Schneider, Bulmer, Olsen), the constructivist turn (eg Checkel, Risse), the deliberative turn (eg Eriksen and Fossum), the governance turn (eg Kohler-Koch), and the government turn (eg Egeberg, Trondal). These turns have contributed to bringing EU scholarship closer to the mother disciplines of political science, law and economy, and also to bring these disciplines into mutual interaction. It may also have turned EU scholarship into more generic research compared to the sui generis EU studies that characterised the 1950s and 1960s. New questions are being asked, new theoretical tools are introduced to address old questions, and new methods have been applied. The book by Luc Verhey, Phillipp Kiiver and Sandor Loeffen perhaps illuminates an 'accountability turn' in EU scholarship. This turn contributes to import lessons from domestic governance to our understanding of continuity and change in EU governance, for example with respect to the relationship between legislative and executive institutions, as well as the relationship between government institutions and citizens. This review addresses the main arguments of the book, whilst also making some comments on each of them.

sion does not provide a platform for the resolution of the outstanding issues of contention relating to the international protection of GIs. 54 These issues span much larger concerns such as the relative importance of GIs to rural economies, the preservation of existing agricultural, industrial and cultural practices and, more fundamentally, whether EC-style GI protection would enhance or distort global trade in agriculture. As such, they are unlikely to be resolved other than by serious political compromise.

The Law Commission has now published its final report on intoxication and criminal liability.' Its new proposals are a vast improvement on those originally proposed in the initial Consultation Paper.* In the Consultation Paper, the Law Commission found itself unable, as a matter of principle, to make sense of the distinction between crimes of basic and of specific intent that has underpinned the common law governing voluntary intoxication (more or less ambiguously) for one hundred years or longer. At common law, intoxication is evidence that can be employed to deny mens reu in crimes of specific intent. Such evidence is, though, inadmissible for this purpose where crimes of basic intent are in issue, even where the mens reu in question involves an element of subjective awarene~s.~ I shall pursue this issue below. So, wedded to an unyielding subjectivism, the Commission tentatively proposed to make redundant the distinction between crimes of basic and of specific intent by allowing evidence of intoxication to be employed wherever this tended to show that the accused lacked the requisite (subjective element of) mens reu. Well aware, however, that such a boldly subjectivist proposal would meet with fierce opposition, not least from the general public, the Commission proposed that a separate offence of 'criminal intoxication' should be created. One would be convicted of this offence when, having become 'deliberately intoxicated to a substantial extent,' one caused certain listed kinds of harms whether one was acting with mens reu or not, and even if one was acting in a state of aut~matism.~ This ill-conceived proposal was, to use the Commission's own words (1.26), 'rejected outright with cogent and persuasive reasons' by almost all influential groups working in the criminal justice system. I shall not waste space by adding my own criticisms to the proposal here. So with what does the Commission's final Report replace its own initial proposals? Finding that juries do not experience much difficulty with the present law, and that a majority of those groups working in the criminal justice system thought the law worked fairly and without undue difficulties (1.28), the Commission now proposes to enact the present law, with certain important amendments and clarifications. In particular, the Commission rightly pays attention to the relatively unexplored problem of what 'voluntary' intoxicationthe state (of mind?) that gives rise to all the difficultiesreally means (1.34; 8.35). This issue will be *Fellow and Tutor in Law, Worcester College, Oxford. I should like to thank Stephen Gough for his detailed comments on an earlier draft of this article. 1 Law Com No 229, Legislating the Criminal Code: Intoxication and Criminal Liability (February 1995). References to this Report will subsequently be to paragraph numbers in brackets in the text. 2 Intoxication and Criminal Liability, Consultation Paper No 127 (1993). 3 See eg Aitkin [1992] 1 WLR 1006. 4 Law Corn No 127, op cif n 2, para 6.31. 534

is not. But to use an out-of-fashion distinction, there is a di¡erence between rhetoric and reality, or, in more Luhmannian terms, the observer can observe quite di¡erent operations seemingly existing in the same 'time'. So colonisation can co-exist with passionate debates about arbitrary power^di¡erent points and frames of reference, some threatening some not. It is only the collapse of the First British Empire (ie the loss of America) and the beginnings of the Second (India)î t really was as simple as this^that started the long debate about what Britain stood for and believed in and what it was doing in its foreign forays.

criminological thought and penal policy, yet not once fails to remember that the lived realities of those 'on the ground' may run quite contrary to these apparent seachanges. Sociological theorising and outcome-based evaluations of interventions are intelligently balanced with reference to qualitative, process-based research, succinctly capturing the perspectives of both service users and providers. In such a way, Kemshall succeeds in providing a highly nuanced and grounded appraisal of the apparent 'rise of risk-focussed community protection' (p.130) that will resonate with, challenge and inform practitioners and scholars of every level.

LAWYERS, what they do and their competence, have become subjects of great interest both among lawyers and the community at large, in this country and in the United States.' The general interest has been fired by consumerism and dissatisfaction with lawyers' work and lawyers' charges in the United Kingdom and by the "unethical and illegal practices and

With cohabitation outside marriage becoming increasingly common, the law's response to the problems that arise on separation has become a key issue for public and family policy. This article draws upon the ¢ndings of a qualitative empirical study of how property disputes are handled when cohabitants separate. It argues that the unfairness of the current law is best understood as stemming from a failure to recognise the situation that arises as one of unjust enrichment. It shows that the complexity and unpredictability of the law make it di⁄cult to bargain e¡ectively in the shadow of the law. It suggests that the need for reform goes beyond the introduction of a discretionary regime, such as that proposed by the Law Commission, to reform of conveyancing and property law and practice to facilitate initial, as well as post-separation private ordering.

This article explores the evidential challenges victim withdrawal presents in domestic violence cases. More specifically it examines innovative measures taken in the United States to overcome problems of proof typically associated with domestic violence prosecutions. These evidentiary initiatives have facilitated a shift towards so-called`victimless' prosecution in the context of domestic violence which dispenses with victim participation. Drawing upon a`freedom model' of criminal justice, this article examines whether recent developments in the United States might be emulated as a means of addressing the high rate of attrition in domestic violence cases in England and Wales.

This paper first looks at a definition of voyeurism and its parts and tries to find one fitting definition. Next it looks to connotations of voyeurism as phenomena in art and artistic media, especially film and its relation to voyeurism. Then it tries to describe what can be considered as digital voyeurism in the era of digital media and privacy and Right to privacy and its meaning in comparison with the act of voyeurism. Lastly, it looks at problem arising from confusing voyeurism with other criminal offenses​ and suggests on what grounds should be sufficient legal definition based on.

This article examines the impact of the Human Rights Act (HRA) on the current lack of a remedy for non-consensual publication of personal information by the media. It argues that the action for breach of confidence is now ripe for development into a privacy law in all but name and that the normative impetus for this enterprise can be found in the HRA which will require domestic courts to consider Convention jurisprudence. It will suggest that when Strasbourg decisions are examined in the context of more general Convention doctrines, they may be seen to suggest the need for an effective privacy remedy. Drawing upon approaches from other jurisdictions it seeks to demonstrate that principled solutions may be found to the thicket of legal problems associated with such development. It contends that the main objection to this enterprise, the perceived threat to media freedom, is largely misplaced, as analysis at the theoretical and doctrinal levels reveals that speech and privacy interests are in many respects mutually supportive and the areas of conflict small and readily susceptible to resolution.

This article assesses the legal regulation of marriage and cohabitation in Britain and outlines a growing need and desire for the currently confused law to be amended despite what has been termed 'the normal chaos of family law'. It adds to the topical debate about 'couple regulation' and argues that law should protect the function rather than the form of relationships. This argument is supported by recent Nu⁄eld Foundation funded research, which draws on a major attitudinal survey of over 3000 respondents' views about marriage, cohabitation and the law and a number of in-depth interviews with current and former cohabitants. This research supports the view that cohabitation is now an accepted parenting and partnering structure across Britain, and that this ought to be re£ected in a're£exive' approach to legal regulation in this sphere.

Many concerned about UK corporate governance have urged those who own equity in listed companies to forsake a traditional bias in favour of passivity and act as responsible, engaged ‘owners’. The recent financial crisis has given added impetus to such calls, with the notion of ‘stewardship’ taking centre stage and resulting in July 2010 with the launch of a Stewardship Code targeting UK-based institutional investors. This paper summarises the Stewardship Code initiative and argues that, primarily due to sustained fragmentation of share ownership occurring over the past 20 years, the Code is unlikely to foster substantially greater shareholder involvement in UK corporate governance.

"“Interpretation of a rule that exists in a law” is a very
important process for understanding and applying the will of
legislator. Interpretation has its own principles. Another important
thing is to quest the “limits of law” that is to measure whether the
rule in a law is appropriate to be applied in another event or not.
This is known as “analogical reasonin” or “qiyas”. Both the modern
law and Islamic law uses the two methods (interpretation an qiyas)
to understand ant apply the law. In this article we will demonstrate
“the relationsihp between qiyas and interpretation in modern law”
and then we will try to compare the modern law with the Islamic
law about this subject."

Five stages in the history of regulation are derived from the literature as a starting framework for this essay. These stages are outlined in the first section. This five-stage model is then confronted and revised in light of the neglected case of the Australian penal colony. It is juxtaposed throughout the paper with the history of the regulation of crime in the US. Australian convict society is found to be brutal yet forgiving. We conclude that surprisingly high levels of procedural justice and reintegration in Australian convict society drive down crime rates at a remarkable rate in the nineteenth century. In contrast American slave society is characterised by procedural injustice, exclusion and stigmatisation, which delivers high crime rates. Following Heimer and Staffen's theory, reintegration and procedural fairness are found to arise in conditions where the powerful are dependent on the deviant.1 Acute labour shortage is the basis of a reintegrative assignment system for Australian convicts to work in the free community. While convicts change Australia in very Australian ways, we find that many of these developments are not uniquely Australian and so a revision of the five-phase model is proposed. The revision also implies that Foucault's distinction between governing the body versus governing the soul (corporal/capital punishment versus the penitentiary) is less central than exclusion versus inclusion (banishment versus restorative justice) to understanding all stages of the history of regulation.

iod, focusing on victims was focusing often on smaller ripples, refracted through quite di¡erent forces colliding elsewhere, yet impinging on what might be said in relation to victims. I am not sure that Rock's overall thesis^that there will be a framework of rights for victims in relation to support and criminal justice^still holds. Maybe this re£ects my pure cynicism about the reactionary potential of a system which has managed for some 25 years since adopting a policy of informing victims about the result of the case not to produce a satisfactory way of so doing. But I would be delighted if Rock were able to look back in another ¢ve to ten years, perhaps taking a rather wider focus than the national, to see if his thesis were to be proved correct.