New LLB Student Blog

I have linked up a new student blog written by Kay Lee, a 1st year student, called University of London Notes and Essay. It looks like a good resource for 1st year students and will be good to keep track of Kay Lee's journey through the LLB.

Kay Lee has written an article on the blog of the university website, entitled A Girl Without Fear. Her blog can be found on the following link ... University of London Notes and Essay

QED Trusts Lecture at UCL

With exams fast approaching it's that time of year again to be planning revision. The past two years I have attended the QED revision weekends at University College London (UCL), which I see as an invaluable part of my plans. The seminars, lasting for 4 hours 45 minutes, are given by experienced examiners and lecturers in their field, some of whom write the subject guides and voices on the VLE lectures. They help me bring everything together that i have learned and organise it in a structural way when approaching an exam question. Last weekend I attended the Trusts lecture given by Mohamed Ramjohn, Principal lecturer at the University of West London and voice of the lectures on the VLE.

We were sent materials, including questions and lecturers notes prior to attending, so that we could familiarise ourselves with the forthcoming lectures. During the seminar we were shown first of all as how to approach an exam question, what to look out for and how to organise our revision with the questions in mind. We were then taken through some typical questions, covering the whole of the syllabus. His knowledge of the cases on equity and trust was very extensive and his application to a typical exam question logical. After going overtime, we managed to cover much of the syllabus in a little over 5 hours, with a promise of some more materials to be sent afterwards.

There are a variety of University students attending from other institutions, including a number from the International Programmes. It was good to see familiar faces from the Facebook groups, including Piret Alver, Vladi Kunova and Carl Barry (photo). One of the downsides of studying on this degree is the lack of face to face interaction with other students, to see so many other law students in an environment like this is always a positive thing.

The seminar though very intense, was enjoyable and given me much more confidence in tackling this difficult subject in the exam situation.

The seminars are run for the weekends of April 27th/28th and May 4th/5th with places still available, the timetable can be found on the following link www.qedlaw.co.uk

Inside Parliament on a Historic Day

Parliament was recalled yesterday from its Easter recess to pay tribute to Margaret Thatcher following her death Monday.

As a UK citizen, i'm in the fortunate position to be able to contact my MP for a tour of Parliament as any other citizen can do, instead of having to pay for a tour as international tourists do. As I was attending a Gresham College lecture yesterday by Sir Geoffrey Nice QC on state war crimes, which is where my study interests lie, i'd decided last week, though realising it was very last minute, to contact my MP Ian Austin to see if I could get my 16 year old son and myself on a tour of Parliament. I had visited Parliament before as a small child with my parents, at the time I was more concerned with my tired small feet than being inside the House of Lords so didn't really appreciate it. In all honesty when I emailed my MP Friday I didn't hold out much hope as the website said to book well in advance.

The reply I got from Ian Austin late Friday evening was that though I couldn't get on an official tour, he would try to get his assistant Callum, who knows plenty about Parliament, to take us around personally. This was confirmed by Callum on Monday morning, as Parliament was in recess we would basically have the freedom of the House. But then the days events unfolded, the death of Margaret Thatcher was announced and the subsequent recall of Parliament from recess on the very day we had organised our tour. My initial thoughts were that we may have to cancel our visit, after exchanging a couple of emails with Callum he was still more than happy to take us around and to top it all was going to try to arrange to get us tickets in the public gallery to watch the 'debate', which rather than actual debate would be tribute to the life of Margaret Thatcher.

As a law student that really enjoyed public law and the studies of the constitution, this was something I was really looking forward to, not just for myself but also for my 16 year old son who himself has a passion for history.

Though I have never really used this blog as political I do have strong feelings about Margaret Thatcher which maybe worth a mention, as in death it seems that she has divided the nation once again, as she did whilst in power. Many comments I have read have been vile, almost like kicking a corpse to cause it more damage, I do not agree with the way some have reacted, but I understand it.

In the name of crushing the trade unions she devastated industry and manufacturing, rather than waging war on the unions, the victims of that war was the ordinary working man and the communities that still feel the effects today. Whilst closing down the dockyards of Glasgow and Liverpool with one hand, she was happy to court the shipyard worker and leader of a trade union Lech Walesa in Poland for her own political ends with the other. One only has to look at the so called 'sink' estates of Glasgow, Liverpool and Sheffield to see how her policies neglected the ordinary working man. Politicians of her party are quick to criticise the so called 'benefit culture', yet tend not to look at what or who created mass unemployment in the first place. The creation of mass unemployment after the closing down of much of British manufacturing in the name of war on the trade unions, meant that many young people in the 80's and 90's grew up in households on benefits and come to know little different. Further I recall a budget where there was a surplus in the economy, at the time the NHS was starting to deteriorate and needed funds, yet she gave the rich massive tax cuts instead. We see today a shortage of social housing, young people simply cannot afford to buy houses in the current climate, this shortage of social housing in this time of need is a direct result of her selling off council homes, ironically many of those homes are now owned by landlords charging high rents which are paid by that very council back in benefits.

For the working man, she left this country in a mess.

There were her policies in support of apartheid South Africa, her stance against the 'black' Commonwealth which brought her into a public disagreement with the Queen, she famously stated, 'if it's 1 against 48, I feel sorry for the 48', yet at the same time went to war against Argentina in support of a notion of British Empire with regards to the 'white' Falklands, most people hadn't even heard of the Falklands nor knew where they were. I know people today who fought in that war, still have issues over what they experienced and wonder why so many young British soldiers had to die and be maimed for 2,000 people on unknown islands. Yet on the backdrop of victory, I recall the singing of Rule Brittania whilst she was outside Downing St giving her victory speech, called an early General Election soon after and riding the wave of this nationalistic pride she was again in power for another term.

She did win three general elections, yet when put into the context of a bad economy and a promise of being able to buy your council home in 1979, Labours loss of focus throughout the 80's as a credible ruling party, the changing of constituency boundaries and the post nationalistic euphoria of the Falklands of 1983, along with Labour just trying to reorganise themselves  for 1987, it's no real surprise.

I digress. We arrived at Portcullis House, where MP's offices are situated across the road from parliament at about 12pm. After going through airport type security we were met by Callum who took us to his office and introduced to Joe, another of Ian Austins team. From then on we were given a tour of Parliament. Callums knowledge was quite extensive, going down an underground escalator we arrived in the courtyard (photo) and into Westminster Hall, the origins of the House dating back to 1099. We were taken to the Commons chamber first as it would be required for the Thatcher session after around an hour and taken through one of the voting lobbies. It was quite surreal to be taken through the back entrance of the Chamber, seeing the Speakers chair and standing next to the dispatch box where the Prime Minister and Leader of the Opposition stand. It was pointed out to us on the day of a debate an MP can place his 'prayer card' on his seat to claim that space, as apparently there are only 450 seats, yet 650 MPs, on the Conservative side most of the seats had these prayer cards on them, on the Opposition side there were none, it showed as to which political party this tribute session was arranged for.

After spending some time in the chamber we were taken to the House of Lords, it had just closed as it was due for a security sweep before the session. The guard however kindly agreed to open it for us to have a quick look. We then spent what was one of the most surreal couple of minutes of my life, Callum, my son and myself alone in the House of Lords. The beauty and ornateness of the House cannot be described in words. Callum pointed out to us a wooden bench, as in a courtroom where an accused would stand ... of course as any law student would know this was the highest court of the land. Some of the cases I have read in recent years came to mind and how the Law Lords would read their judgments in this very place.

On our walk back we stopped in the central lobby whereby the relevant statues were pointed out, including one of Margaret Thatcher as being the only statue unveiled of a former PM whilst still alive, other former PM's were only allowed bust depictions whilst living. We made our way back to Portcullis House, was given a little history on Westminster Hall. We met a Labour MP, who was very warm and friendly, asked in an amusing way as to why on earth we would want to visit for Margaret Thatcher tributes, so shall remain nameless, after asking him why he was there he said with a smile, 'to support Ed, it would look odd for poor Ed on giving his tribute to be standing on his own'.

After a jerk chicken lunch with Joe, which I may add was very cheap, apparently the MP's dinners are subsidised, we then headed back to the Commons for our seats in the public gallery. There many famous faces, journalists and MP's hovering about and we got to see the Speakers procession prior the start of the session, where they carry the ceremonial mace representing the sovereign of the United Kingdom. The gallery was full, to see Parliament in action on a historic day such as this was once in a lifetime experience. Taking their turns, Cameron, then Ed Milliband gave their tributes. I was disappointed with Nick Clegg, the deputy PM, who being a MP in Sheffield, one of the worst affected areas under the Thatcher regime, I accept should be diplomatic but also should have his constituents in mind, instead was actually quite endearing of the former Prime Minister. The member I enjoyed the most was that of Conservative MP Malcolm Rifkind, who served in the Foreign Office under Thatcher. Whilst I disagree with just about everything politically he stands for, he had the Commons in his hands, as an actor on a theatrical stage, with anecdotal stories of being on the end of many a Thatcher 'lashing'. How after the US had invaded Grenada, which at the time the Queen was still head of the country and 'the US had inconveniently forgot to inform the UK', she phoned Reagan in the Oval Office personally with a hail of abuse, to which apparently Reagan in the middle of this, covered his phone and said to his staff who were there, 'isn't she fantastic?'.

I realise many of my blog readers are international, so maybe only see her through the eyes of this international stateswoman that she was and I give credit where it's due, she knew how to court the international players and pick up the pieces of the fall of communism. However on a domestic scale she is so devisive that I personally don't think the ceremonial funeral she will have is fitting.

The day was a superb day out for my son and myself, it has wetted his appetite for politics and he now sees them as not being so dull, as well as being offered some work experience if he wishes to take it in the future. I enjoyed the day and now see the workings of the House as more accessible to the general public than I once thought. I'd recommend anyone to have a tour of the House when in London, as we all study public law in the first year of the LLB it makes the visit even more special.

I'd like to thank Ian Austin MP, Callum and Joe for making this day happen.

QED Revision weekends at UCL

I have posted here before about my experience with the QED revision weekends, which are a must for me in preparation for exams. There are still places available I believe, which start this weekend.

The seminars can be booked and timetable accessed on the following link ...
www.qedlaw.co.uk

Ronald Dworkin's Legacy 1931-2013: The End of Chapter 1 of the 'Chain Novel'

Published with the kind permission of the author Sher-Muhammed Khan.

With the passing of Ronald Myles Dworkin, one of the most prominent legal philosophers of our time, a chapter of jurisprudence and legal theory has come to an end. On the day of Professor Dworkin’s passing, it was only fitting that I was glued to his very compelling criticism in his 1977 work, Taking Rights Seriously, of H.L.A Hart’s theory of law as a normative phenomenon.

I paused for a while taking time to reflect on Professor Dworkin’s contribution to jurisprudence and legal theory. Thursday, 14 February 2013, marked the end of a chapter written, lived and played out by a great man. But wait, we have gained a lot of insight from Professor Dworkin’s contribution. Jurisprudence scholars would agree that a new chapter has begun. Could this be the continuation of an impeccable literary work?

Professor Dworkin meticulously described the nature of common law adjudication “using a quasi-literary image to explain the way that judges can be both constrained and free in their decision-making” (Bix, 2004, p 31). He used the metaphor of a ‘chain novel’ in the following passage:

“Deciding hard cases at law is rather like [a] strange literary exercise. The similarity is most  evident when judges consider and decide common law cases; that is, when no statute figures centrally in the legal issue, and the argument turns on which rules or principles of law 'underlie' the related decisions of other judges in the past. Each judge is then like a novelist in the chain.

He or she must read through what other judges in the past have written not only to discover what these judges have said, or their state of mind when they said, but to reach an opinion about what 

these judges have collectively done, in the way that each of [the] novelists [form] an opinion about the collective novel so far written. Any judge forced to decide a lawsuit will find, if he looks in the appropriate books, records of many arguably similar cases decided over decades or even centuries past by many other judges of different styles and judicial and political philosophies, in periods of different orthodoxies of procedure and judicial convention. Each judge must regard himself, in deciding new cases before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, conventions, and practices are the history; it is his job to continue that history into the future through what he does on the day. He must interpret what has gone before because he has a responsibility to advance the enterprise in hand rather than strike out in some new direction of his own. So he must determine, according to his own judgement, what the earlier decisions come to, what the point or theme of the practice so far, taken as a whole, really is.” (Dworkin, 1986)

This stimulating passage is part of Professor Dworkin’s ideal of ‘law as integrity’. Judges should be perceived as authors in a ‘chain novel’, “each one of whom is required to write a new chapter which is 
added to what the next co-novelist receives” (Wacks, 2012, p 129). Each novelist in the chain attempts to add a chapter. The final novel, it is hoped, would be seen at the work of a single writer. The novelist would want to contribute a polished chapter to the overall novel and this means that the novelist in the chain would need an antecedent understanding of the overall plot, the main characters and the objective of the novel.

In other words,“[w]hat has already been written in the novel (or decided in the prior cases) constrains  what the later writers can say (or judges can decide) while still leaving a significant amount of freedom”(Bix, 2004, p 31).

Professor Dworkin’s ‘chain novel’ metaphor struck a chord with me. Although he used it in the context of
common law judicial decision-making, I believe that scholars of jurisprudence can use the ‘chain novel’ metaphor to continue the legacy of Professor Dworkin.

The author of the first outstanding chapter is Professor Dworkin. As co-novelists beginning a new chapter, we have “the dual responsibilities of interpreting and creating” (Penner et al, 2002, p 390). We have a phenomenal base from which we can interpret. Professor Dworkin, through his various works covering many areas including abortion and euthanasia in Life’s Dominion: An Argument about Abortion  and Euthanasia in 1993 and the ideal of equality in articles such as What is Equality? Part I: Equality of Welfare in 1981, What is Equality? Part II: Equality of Resources also in 1981 and What is Equality? Part III: The Place of Liberty in 1987, has provided this phenomenal base.

While the judges in the ‘chain novel’ metaphor are constrained by what has been written before them, scholars of jurisprudence are not constrained in the same way when using the ‘chain novel’ metaphor to continue Professor Dworkin’s legacy. His insight has, in fact, emancipated us academically.

Professor Dworkin’s infatuation with law and literature and the use of “literary interpretation as a model for the central method of legal analysis” (Dworkin, 1986) led him to distinguish between the artist and the critic and therefore recognise the “difference between interpreting while creating and creating while interpreting” (Dworkin, 1986).

The novelists in the chain, however, are both artists and critics. The judge in common law judicial decision-making interprets while creating and, at the same time, creates while interpreting. Using the ‘chain novel’ metaphor to continue Professor Dworkin’s legacy, jurisprudence scholars are the artists and critics. We may not agree with every single tenet of Professor Dworkin’s ideal of ‘law as integrity’, but we can interpret while creating and create while interpreting. We can continue the ‘chain novel’ – we can continue the legacy.

Professor Dworkin was a true artist and critic. He introduced into his theory the methodology of the ‘interpretive concept’. He introduced this methodology to interpret law as the best it can be. His genius in
doing so cannot be pigeonholed as having created while interpreting or having interpreted while creating. His artistic genius converged with his awe-inspiring critical ability to make one of the greatest contributions to legal philosophy.

The ‘chain novel’ continues. The first chapter, perhaps the greatest chapter of all, may have come to an end. But, Professor Dworkin’s legacy is the plot and will live on in subsequent chapters. We, the scholars of jurisprudence, have a part to play in this ‘chain novel’.

Ronald Myles Dworkin, philosopher of law, born 11 December 1931; died 14 February 2013

Bibliography

Bix, B.H., (2004) A Dictionary of Legal Theory. Oxford: Oxford University Press.
Dworkin, R., (1986) Law’s Empire. Oxford: Hart Publishing.
Penner, J., Schiff, D., and Nobles, R. (eds.) (2002), Jurisprudence and Legal Theory: Commentary and 
Materials. Oxford: Oxford University Press.
Wacks, R., (2012) Understanding Jurisprudence: An Introduction to Legal Theory. 3rd edn. Oxford:  Oxford University Press.

Shér-Muhammad Khan is reading for the LL.B (Hons) Law through the University of London and is a final year candidate based in Johannesburg, South Africa. He has had invaluable corporate and commercial exposure at the Johannesburg Stock Exchange (JSE) during exchange-traded derivatives training, PricewaterhouseCoopers’ Business School during tax law training and Bowman Gilfillan and Webber Wentzel (in an alliance with Linklaters) during several competition law symposiums.

The essay can be found on the University of London website at http://laws.londoninternational.ac.uk/wp-content/uploads/2013/02/RONALD-DWORKINS-LEGACY.pdf

Oscar Pistorius and Transferred Malice?

The case of paralympic Oscar Pistorius shooting of his girlfriend has been interesting to watch as it unfolds. Events of the night in question have been coming to light through the bail hearing. Though there has been much in the way of misinformation being fed to journalists, it now seems certain that the prosecution are charging him with premeditated murder, whilst his defence seems to be one of mistaken identity and he was acting in self defence thinking the person in the toilet was a burglar. Picking up on something the prosecutor stated (and I paraphrase), 'to kill is to kill, irrespective of who the victim is. If he (the accused) intended to kill, it is murder.'. This has got me thinking, are the prosecution thinking of murder along the lines of transferred malice? Or more appropriately under South African law dolus indeterminatus (an error in object)?

As any criminal law student should by now know, if A, intending to kill B, kills C having mistaken him for B, the doctrine of transferred malice will apply and A will be guilty of murder. In Latimer (1886) 17 QBD 359 Lord Coleridge CJ stated:

"It is common knowledge that a man who has an unlawful and malicious intent against another, and in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act and has that which the judges call general malice, and that is enough."

So would the possibility of transferred malice or the South African equivalent apply in the case of Oscar Pistorius, if the prosecution could prove he had intent to kill the apparent intruder and hence, find him guilty of murdering Reeva Steenkamp?

Turning to the South African law on self defence, it is wider than English law, courts will accept the defence in circumstances that perhaps an English court wouldn't. For instance, it is acceptable to shoot an intruder in the home if life is in danger, either the accused or the life of another, the fear doesn't have to be reasonable to an objective bystander, self defence is much the same as English law so long as the accused holds that fear, a South African court will often take the darkness and disorientation of the night into account. Further there is no equality of weapons as in some jurisdictions, a court will accept shooting someone with a gun, if the attacker is holding a knife, or even unarmed. Where a South African court will draw the line though is where an intruder is running away, or trying to escape. The facts that seem to be unfolding is that Reeva Steenkamp was killed in a locked toilet, within the bathroom, in a crouching position behind the toilet, shots were fired through the door. Would this be self defence if Oscar Pistorius thought he was shooting an intruder? Especially in light of his Twitter remark in November, 'Nothing like getting home to hear the washing machine on and thinking its an intruder to go into full combat recon mode into the pantry! waa.'

The doctrine of dolus indeterminatuse could be used if the court finds that Oscar Pistorius did not fear for his life and he intended to kill the 'intruder' who was locked in the toilet, irrespective of who the victim was, he would be found guilty of the murder of Reeva Steenkamp as 'an error in object'.

It will be interesting to see how this case goes, as at the moment all we have is a bail hearing. Maybe the prosecutor has in mind a dolus indeterminatuse argument should he feel his premeditated murder line is a weak one.