The hundredth volume of the Law Reports of the Commonwealth

This article, written as a foreword to the hundredth volume of the Law Reports of the Commonwealth (LRC), celebrates the growing success of these law reports published since 1985. Generally appearing in four or five volumes each year, the reports collect some of the main cases, mostly from final courts, decided throughout the Commonwealth of Nations. With the demise of the Privy Council as an institutional link, the courts of the Commonwealth remain connected by the English language, a shared doctrinal and historical tradition, common legal taxonomies and a similar professional culture. The author pays special tribute to the excellent Cumulative Indexes from the 1980s to date; the insightful annual Editorial Reviews which draw attention to grand themes and trends throughout the Commonwealth in the LRCs; the outstanding work of the two foundation general editors Professor James Read and Dr. Peter Slinn; and the publishers Butterworths LexisNexis. In the place of imperial rule there is now a free sharing of knowledge in the law, as befits the free association of the Commonwealth of Nations.     

Creating Entrepreneurial Universities in the UK: Applying Entrepreneurship Theory to Practice

In the modern knowledge economy higher educational institutions are being required to operate more entrepreneurially, commercialising the results of their research and spinning out new, knowledge-based enterprises. Like most large organisations, particularly those operating in the public sector, they are not traditionally suited to this role and often face the same sort of barriers to intrapreneurial activity as their counterparts in the private sector. In this note, the theories of entrepreneurship and intrapreneurship development are used to identify what needs to be done and a case example is provided.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

The Service Conception: Just One Simple Question

It is crystal clear that the Service Conception includes at least three conditions, what I shall call: the ‘normal justification condition’, the ‘independence condition’ and the ‘dependence condition’. The overarching rationale of these conditions is that they ensure that authority is only justified when it provides the best means for the subject to conform to the reasons for action that she actually has. However, it is difficult to clarify whether Raz implicitly presupposes a fourth necessary condition. This condition might be called a ‘reliable belief condition’, that is, that the putative subject must reliably believe that the putative authority-agent satisfies the Service Conception (or more precisely, its other three conditions). In sum, the purpose of this paper is to pose Joseph Raz one simple question: is it a necessary condition of your Service Conception, that the subject believes that the authority-agent satisfies the Service Conception? As a matter of interpretation, different parts of Raz’s work appear to lead in entirely opposite directions: some parts clearly support the reliable belief condition, others do not. Regardless of Raz’s ultimate answer, however, the question reveals a broader inconsistency. Only if the Service Conception does include the belief condition will it support Raz’s claim that authority is consistent with one’s rational ‘self-reliance’, that is, acting upon one’s own judgement (including, as to who has authority). Only if the Service Conception does not include the belief condition will it support Raz’s perfectionist account of government. It seems Raz must choose between one or other.     

H. M. Seervai – Indian Advocate and Great Lawyer of the Commonwealth of Nations*

For much of the second half of the 20th century, H. M. Seervai was a leading advocate of the Bombay High Court. He argued some of the most important constitutional cases decided by the Supreme Court of India and in 1970 he resolved to write his Constitutional Law of India. It became the leading text on Indian constitutional law. It is still in widespread use. Many instances of recent citations are quoted. But Seervai’s book is not the usual commentary on the text of the Indian constitutional and case law. Instead, the book contains a running discussion on the shifts in direction, as well as sharp criticisms, where Seervai felt that the courts had strayed from correct constitutional doctrine. Seervai died in 1996 as the fourth edition was just completed. In this article, originally given as a lecture in Mumbai in 2007 on the centenary of Seervai’s birth, the author questions Seervai’s testamentary prohibition on posthumous editions of his text. He urges that a new edition should be produced to keep Seervai’s legacy alive not only in India but in other constitutional democracies where Indian judicial authority is increasingly cited.     

The Commonwealth of Nations today: historical anachronism or focus for universal values?

The creation of the Eminent Persons Group (EPG) in July 2010, to report on future structures of the Commonwealth of Nations, focuses attention on the activities that the Commonwealth and its Secretariat perform well and those that require improvement. The author, now a member of the EPG, explains how the Commonwealth evolved out of the British Empire; the importance of the links of law, language and tradition that bind it together; and the activities that are well performed: professional links; education and publications; electoral observations; provision of good offices; and consensus over core values. He notes useful new initiatives, including periodic human rights reviews; outreach to youth; pursuit of women’s equality; and the use of new information technology. However, he also identifies a number of areas of weakness: publicity and communications; secretariat organisation; the focus of some activities; and effective attention to reported human rights abuses. Given the creation of the EPG, this is a timely survey of the challenges that lie before it and the Commonwealth.