The tangled, intertwined concepts of the law of negligence are a constant source of fascination for lawyers, and also a source of despair. The one produces an almost endless stream of comment on the intricacies of ‘duty’, ‘remoteness’, ‘causation’ and ‘foreseeability’, while the other forces many to conclude their remarks with an exasperated, ‘but it's all policy anyway’. Yet ‘policy’ is the beginning not the end of wisdom in the law. The crucial question is exactly what these policies consist of. The legal method, as opposed to the economic or the sociological, approaches the task by tearing up and reconstructing legal ‘concepts’.

In this paper I will offer some methodological reflections on legal science and its relations with the natural and human sciences. The first part of the paper (sections 2-4) deals with the relation between legal science and the natural sciences. The thesis I put forward is drawn from my book Teorie della scienza giuridica e teorie delle scienee naturali. Modelli e analogie, and restates the main points of my argument there against approaches founded on neopositivism and in favour of a post-positivist approach. The second part (sections 5-7) deals with some aspects of the relations between legal and human sciences, and develops some rather more tentative ideas which go beyond the conclusions reached in the book.

One of the few areas of the law in which there is a significant and serious dispute between the United States and its Western Allies concerns the nature and scope of national regulation of international trade. This long-standing and mutually damaging dispute first arose in connection with the extraterritorial enforcement of US antitrust laws through the effects doctrine as elaborated by US courts commencing with the Alcoa case in 1945. Since then the dispute has progressively widened and deepened: it has extended to such matters as international shipping and civil aviation, commodity markets and securities and it has been aggravated by the extraterritorial application of US investigatory and other pretrial procedure.

One of the dramatic developments in contemporary administrative law is the result of a radical approach to the basis and scope of error of law on the face of the record as a ground of judicial review of administrative decisions. Despite the impeccable antecedents of this rubric of judicial review in English administrative law, courts as well as writers in England have strenuously assailed in recent times the legitimacy of the continued invocation of this head of review. Lord Diplock has suggested that the concept of patent legal error has become redundant in consequence of expansion of the scope of jurisdictional criteria.

Sociology of law often seems to be marked by a form of intellectual apartheid. Whilst social theorists refine their conceptual frameworks, those with more practical concerns robustly set out to investigate the ‘law in action’. Mixing of the two approaches is thought likely to impede their necessary separate development. One recent survey of the field concluded that:

‘The trend is likely to be a continuing divergence between its theoretical and practical branches: the theoretical consisting mainly of re-analyses of old sociological approaches to law, and the practical continuing with its problem-solving approach without confronting the theoretical problems implicit in what it accepts as problems and solutions’.

Down the centuries, it has been considered that in general a doctor is only under a duty to exercise reasonable care in treating a patient. While the latter is entitled to a high standard of treatment, results are not guaranteed. In the United States, courts have imposed more onerous obligations, but in England there has been no real challenge to this position until now. The doctor's liability in contract has always had the potential of going beyond mere negligence, but the general concentration on tort actions and understandable uncertainties as to the scope of contractual liability meant that this potential was never explored.

Throughout the spectrum of inchoate crime spanning the concepts of attempt, conspiracy and solicitation or incitement, the most notorious and intractable problems have arisen in the area of attempts. A court in Zimbabwe, echoing the despondency characteristic of current academic writing, has made the comment: ‘There is, perhaps, a no more unsatisfactory branch of our criminal law than the law relating to attempt, and there is not the slightest prospect that with the passage of time it will become less unsatisfactory.’ Sporadic suggestions by Commonwealth courts that the complexity and incoherence of the common law should be rectified at least in part by legislative intervention, has been acted upon in England and New Zealand.

The purpose of this paper is to explore further some remarks of Professor Treitel, in his Law of Contract, in relation to the extent to which a foreseen or foreseeable event may preclude the operation of the doctrine of frustration and to offer an alternative role to foresight than is suggested by Trietel's analysis. A consideration of foresight is of more than passing interest since it touches upon the foundation of the doctrine, the object of which, it is said, is ‘to find a satisfactory way of allocating the risk of supervening events.’

Criminal liability for failing to do something is as much a part of the law as criminal liability for anything else, and a very familiar feature of any developed legal system. Enforceable duties are created by law to discourage people from going about their business in unacceptable ways, to ensure proper participation in activities and programs that are important to the life of the community, and to make sure that people who occupy a position of responsibility or are in some special relationship which leads others to rely on them do what might reasonably be expected of them. Most crimes of omission on the books are there for some such reason, though there are other sorts of reasons for creating enforceable duties that are equally good.

The tendency of lawyers these days is to deny much of a place to Roman Law and this is reflected not only in a widely held view that since the eighteenth century legal innovation has been so great as to have left the Corpus Juris Civilis a ‘mere antiquarianism’: it is also reflected in the fact that fewer and fewer law schools in the West insist on Roman law as a compulsory subject. Indeed, the number of law faculties or departments in England offering the subject as even an optional course can probably now be counted on the fingers of, if not one hand, then two.

In English law, as in many of its common law satellites, the tort of privacy is still a curiously problematic one. Unlike Roman or generally civilian law where there is little doubt that an invasion of privacy is actionable, unlike also American law which in the last 80 years or so has fashioned an ample shield around a person's private sphere, English law has been deeply hesitant about admitting privacy as a civil right. Roman law, we may be surprised to learn, accepted from the very start that rules against personal injury include as well as rights to physical security also rights to feelings of human dignity and self-respect.

The well known dictum of Lord MacMillan in Donoghue v Stevenson that ‘the categories of negligence are never closed’ is illustrated in striking fashion by a series of recent cases concerned with the liability of a builder or manufacturer for financial loss suffered by an owner or purchaser of defective property. Junior Books Ltd v Veitchi Co Ltd, a decision of the House of lords, is the latest and arguably the most significant of these cases. The effect of the decision, at least in England, has been to assimilate to a large extent the principles governing liability for negligent words with those governing negligent conduct.

Common lawyers have long shown a remarkable reluctance to impose criminal liability for omissions. Such liability, it has recently been said, is ‘uncongenial’ — and this seems to be right. Even where the law does, in reality, impose liability for omissions we find courts and writers trying to explain the phenomenon on some other ground. The feeling seems to be that, because the imposition of liability for an omission implies a duty to act it is an interference with the liberty of a person who wishes only to mind his own business and let others get on with minding theirs. Moreover omissions do not cause evil results in the same obvious sense as acts.

It is a familiar principle of the law of extradition that a fugitive should not be surrendered to a requesting State if his alleged offence is of a political character. Yet in recent years this exception to extradition has been the subject of criticism. With the increase in political violence in Europe in the 1970's it was feared that fugitive terrorists might be able to shelter behind the political offence exception. In the United Kingdom some politicians have been particularly disturbed by the application of the political offence exception by the courts of the Republic of Ireland to prevent cxtradition of alleged terrorists.

It is a fundamental principle that the expectation interest is protected for breach of contract. In protecting this interest, the main choice the law faces is between ordering specific performance and awarding damages. The former orders the defendant to carry out what he promised, whereas the latter gives the plaintiff a monetary substitute for performance. Traditionally, the expectation interest has been primarily protected by awarding damages, and specific performance has been a very secondary remedy.

At one time it would have been possible to say with firm confidence that contributory negligence was never a defence to battery except, perhaps when the conduct of the plaintiff was so clearly the cause of the harm that had befallen him that it could be treated as contributory intent.

In more recent years, however, a number of qualifications to any such terse summary have appeared and somewhat surprising conflicts of opinion between various common law jurisdictions have arisen, both on the principal question and a number of associated problems.