R. W. M. Dias

Legal Politics: Norms behind the Grundnorm

A revolution in a country is complete in law as soon as its courts hold the new regime to be lawful. If such recognition is delayed, those in power may wax impatient but they know only too well the advantage which the seal of legality carries. In this way is the stage set for a game of manoeuvre between the courts and the rebels, as happened in Rhodesia.

Temporal Approach Towards a New Natural Law

Jurisprudence should ever be at the service of both legal scholar-ship and practice. If it were to dwell immured within the fastness of theory, this would only make it “stink,” as Dicey said, “in the nostrils of the practising barrister ” —to the mutual detriment of jurist and practitioner. This paper attempts at making a small contribution which, it is hoped, might be of service to both and which will have to be judged in the light of result.

Remoteness of Liability and Legal Policy

In the course of their stately opinion in the case of The Wagon Mound the Judicial Committee of the Privy Council declared that “their Lordships have not found it necessary to consider the so-called rule of ‘strict liability’ exemplified in Rylands v. Fletcher and the cases that have followed or distinguished it. Nothing that they have said is intended to reflect on that rule.” The best excuse for the present addition to the controversial literature that is accumulating round this case is that, the courts having yet to pronounce on remoteness in cases of strict liability, there seems to be still some room for speculation, especially with reference to policy. It is therefore hoped that the fall, as it were, of yet another leaf in the forest will at least do no harm.

The Duty Problem in Negligence

Textbooks on tort begin with the trite proposition that the commission of a tort requires a duty, breach of that duty and, generally, damage. In the tort of negligence, we are told, the duty is a duty of care. The usual way in which this is formulated is that if you can foresee that your conduct is likely to affect a given person, there arises the duty to take care that your conduct does not injure him. The idea seems to be taking root in Roman-Dutch law as well, which is remarkable in view of its Civil law origin. A good deal of controversy has arisen as to whether the notion of the duty of care is necessary or not. It is here suggested that the differences of opinion are reconcilable, but in order to do that we must examine the place which the duty of care occupies in negligence, both in English law and in Roman-Dutch law, since much comment on English law has been forthcoming from the latter quarter and comparison will be instructive. The basis of the proposed reconciliation is that the duty of care is a hybrid notion, combining a question of law and of fact, a dichotomy which is apparent in the language of judges and writers. Those who seek to defend its utility seem mindful of the element of law in it, while those who attack it are thinking of the element of fact. In order to elucidate these elements it is necessary to analyse the tort of negligence. This article will be confined to the examination of the legal element. It will be helpful to begin by appreciating what is meant by the “tort of negligence.”

Mechanism of Definition as Applied to International Law

One danger that arises from the attention recently devoted to definition in jurisprudential writings is that too much importance may be attached to mere definition as such. Students especially tend to overlook the point that definitions possess no magic or finality, except when they happen to be prescribed authoritatively, for example by statute. What is important is not the definitions, but the analysis on which they are based. In order to appreciate this it is necessary to consider their function and structure, and that is the reason for Unking together in the present article two topics, which could otherwise be dealt with separately.