This article seeks to unfold the character, scope and trajectory of justifiable property rights within Hegel’s jurisprudential writings. It does so in order to try to make this reputedly ‘difficult’ and much neglected theorist fit for undergraduate consumption on private law courses.

If we accept the need for an intelligible social theory of private law, why should lawyers consider that of Hegel? Hegel devoted his last book to a ‘Philosophy of Right. This text is, however, barely mentioned by even the more comprehensive of modern textbooks on jurisprudence. There could be little ground for complaint if such neglect of Hegel’s legal writings were based upon a fully reasoned consideration and then subsequent rejection due to certain vital and demonstrable flaws within them.

Lawyers place great stress on the ‘objectivity’ of the law’s approach to agreements. Humpty-Dumpty may claim that ‘when I use a word it means just what I want it to mean, no more and no less’, but a lawyer would advise Humpty that the law, should it interest itself in any promise he made, would be interested not in what he meant by what he said, but in how a reasonable man would understand that which was said. This, the lawyer would explain, is the dichotomy between the subjective and the objective interpretation of words, and it is a dichotomy which has considerable influence on lawyers’ and judges’ thought. Treitel discusses it on the first page of his text, and the very title of one of the chapters of Cheshire, Fifoot and Furmston, ‘The Phenomena of Agreement’, is derived from the law’s concern ‘not with the presence of an inward and mental assent but with its outward and visible signs.

Recent trends in England represent a dramatic erosion of the sanctity of the rule in Woolmington. These developments are of particular significance today, in the light of the virtually open-ended character of some of the contemporary departures from Woolmington’s case.

A decade ago, in Edwards, the Court of Appeal purported to identify in the common law a line of authority which established, as a result of experience and the need to ensure that justice is done both to the community and to the defendants, an exception to the fundamental rule of the criminal law that the prosecution must prove every element of the offence charged. The effect of this exception, which the court sought to extract from rules of pleading, is that where an enactment, on its true construction, prohibits the doing of acts subject to provisos, exceptions and the like, the prosecution is entitled to rely on the exception, with the result that the burden shifts to the defendant to prove that it was lawful for him to do the prohibited act in the circumstances.

The use of emergency legislation and the accompanying modification of the ordinary criminal justice process in Northern Ireland have formed the subject of prolonged debate in academic and political circles. The authorities have, in turn, responded persistently by reference to the special justificatory circumstances which have grown to prevail since the onset of the present ‘troubles’. The focus of attention of this article, however, will not be that controversial legislation but another aspect of the emergency which is said to remain subject to the ordinary law of the land. This is the use of force by the security forces and in particular those instances where death or serious injury results therefrom. The primary contention of this paper is that the ordinary criminal law has been proven inadequate in this context. Hence, it is submitted, the quest for an alternative and more stringent mechanism of legal control is one which should be undertaken with some urgency.

At the outset, an exploration of the terms exercise, legal system, and internal logic used in the title of this paper may be useful. The assumption that a legal system has an intrrnal logic, also needs accounting for.

I call this an exercise because it is but a preliminary search for an all-embracing explanation for various specific and isolated observations related to legal systems; an attempt to prove that legal systems unfold in a way predetermined by their internal logic and that every step in this unfolding is a sine qua non of the one before and after. This is also called an exercise, because it is an attempt at analysing only three of the legal families or cultures.

For a number of years there has been considerable criticism of both Donoghue v Stevenson and Anns v London Borough of Merton on the grounds that the prima facie duty doctrine which some believe those cases established is so wide as to be meaningless and obscures more than it reveals. This article seeks to show how the courts have come to accept this criticism and to indicate how the concept of duty should now be viewed. In particular the point is that there are now different levels of proximity required to establish a duty in different situations and that while this means that the various categories of duty must be distinguished from each other, this does not involve ossification of the law, but rather development of the law may be made easier by a pragmatic rather than a conceptual approach. The principle that 'the categories of negligence are never closed’ means both that existing duties may be refined and extended, and also that new duties may be created. How that can be done depends on our understanding of the nature of the concept of duty and how each step should be taken.