Women in Jane Eyre and Madame Bovary

The presentation of women in Charlotte Bronte’s Jane Eyre (1847) and Gustave Flaubert’s Madame Bovary (1857) is one of the principal informatives of the novels. Clearly, the presentation of women in each case is influenced by the authorial directive which drove the novels and certainly the gender related issues can be seen to be connected to this. In addition, the structural imperative of the narrative voice invites a specific perception of the women which is only essentially revealed when the text is examined closely, particularly in terms of contrast and comparison.

In both the novels to be discussed here, the central protagonist is female and events are arranged around a woman’s life and struggles in a society designed by men for the convenience of men. Also, the books each have an eponymous heroine which invites the initial perception that the entire narrative is to be fundamentally built upon a female centre of consciousness (though Flaubert, in common with many critics, thought the novel guilty of ‘faulty perspective’[1], partly because of this, perhaps). However, this must be qualified by the interaction with other female characters which each novelist uses both to develop the plot and intensify the reader’s understanding of the titular heroine’s actions in each case.

Both novels also present images of women who in different ways either reflect or challenge perceived notions of how women should behave in contemporary society. Indeed, it might be said that each of these books question the basis upon which fundamental mores of the era were based and deviated from accepted moral standards. Perhaps because the chief agents of this in both novels are women, the books were thought even more outrageous than might otherwise have been the case though ‘stereotypes and prejudices have at least some positive aspects’[2] even if only in their repudiation.

However, though Bronte’s novel opens by establishing a deeply disturbing matriarchal environment which does little to challenge the idea of the stereotypical ‘wicked-stepmother’, in the person of Jane’s reluctant guardian, her aunt, Mrs Reed, by whom she is degraded in a home where the child is ‘less than a servant’[3], it nevertheless gives the author, through Jane, the opportunity to intimate that the roots of an inner-strength and self-reliance which are to be so important to her in the future are imbedded in her childhood trials. The inevitable inference, perpetuated by the fact that a considerable amount of Jane’s suffering is inflicted by women, is that cruelty in some sense straitens the character. Moreover, the embryonic woman may be perceived in Jane’s acceptance of this treatment:

This reproach of my dependence had become a vague sing-song in my ear; very painful and crushing, but only half intelligible.[4]

Jane’s subsequent subjugation, both as a pupil at Lowood School and in her position as a governess, the ultimate ‘non-persona’ of nineteenth century female existence and one of which the author had personal experience, may be seen to be endured with extraordinary patience because of these early insults. Indeed, Bronte wrote the character of Jane to be ‘plain, small, and unattractive, in defiance of the accepted canon’[5] and like herself, in fact, so her women are inevitably influenced by this directive: ‘Why was I always suffering, always browbeaten, always accused, for ever condemned? Why could I never please?’[6] This desire to ‘please’ is quite definitely connected here with the female stereotype which to some extent Jane’s later behaviour negates. Thus, Bronte’s portrayal of the female child is, to invert Wordsworth, ‘mother of the woman’ for the injustice of her treatment is forcibly emphasised, as it is later at Lowood (the cruelty of which was autobiographical as two of Bronte’s sisters died at a school very similar to it). It is crucial that Jane’s sufferings should be seen to be inflicted by women, for as Jane says, ‘I doubted not-never doubted—that if Mr. Reed had been alive he would have treated me kindly’[7]. Clearly, the author’s directive is to display how very different is the cruelty of women inflicted upon their own sex from that of men who, like Rochester, involve a sexually charged sadistic element in their cruelty towards women.

Flaubert’s novel creates rather a different consciousness, however, and the directive for this is possibly created by the passion of the novel, which was for a time banned in France on the grounds of obscenity. Emma Bovary, unlike Jane Eyre, is driven less by the sense of injustice brought about by her familial circumstances than her desire for a more passionate existence than her husband, the mediocre doctor Bovary, can provide. In a sense, she is the antithesis of Jane, since she longs not for a simple existence with a loving husband, that she has, but for a life of which she has read in romantic fiction, symbolised by her desire for ‘a marriage at midnight by the light of torches’[8] (though this has been shown to be also a custom rather than an idiosyncratic whim[9]). Emma is, from the first, presented sensually: ‘she shivered as she ate, thereby causing her rather full lips, which, in moments of silence, she was in the habit of biting, to fall slightly apart.’[10] Anticipating Hardy’s description of Tess eating a strawberry offered by her seducer, Flaubert focuses the attention of the reader immediately upon Emma’s mouth, slightly open, in an unconsciously provocative attitude. In this, she is very different from Jane, who is presented as demure to the point of austerity, perpetually dressed in dark clothes, partly due to her situation but also, the reader might infer, due to a repressed self-image. (Interestingly, Flaubert often dresses Emma in blue, with varying numbers of flounces; this would be recognisable in the Catholic France as the colour traditionally associated with the Virgin Mary.)

Nowhere is this more evident than when she is compelled by Rochester to attend an evening party at Thornfield and we see her juxtaposed with the flirtatious Blanche Ingram and the party who, dressed in white ‘flock’[11] into the drawing room like ‘white plumy birds’[12] in stark contrast to the soberly dressed Jane, all in grey. The women speak in an ‘habitual’[13] way, indicating that it is both natural and practised: a register of opposite inflection which suggests the elaborately artificial, indicative of their representation, via Jane’s perspective, at least, and since Jane’s voice is that of the book, that is the view we are invited to share. As she says, ‘Miss Ingram […] was self-conscious— remarkably self-conscious indeed’[14]. Bronte’s employment of the term ‘self-conscious’ is interesting since it encapsulates, in the two meanings of the term, the difference between Blanche and Jane. Blanche is conscious of herself as a vain exposition but Jane is self-conscious in terms of abnegation. Significantly, at this point, the narrative register switches, to present the scene as if Jane is watching it: ‘I sit in the shade—if any shade there be in this brilliantly-lit apartment; the window-curtain half hides me’[15]. (Apparently Charlotte was also self-effacing at parties, where she would hide behind the curtains in order to be both present and not so.) The author thus employs a dual vicariousness of experience, since she is speaking autobiographically behind the veil of Jane who is now watching herself in a recalled reactive, ‘I might gaze without being observed’[16] as she remarks. The women’s conversation is at best indiscreet and at worst cruel, as they discourse on the nature of governesses, ‘the whole tribe’[17], almost as one might of a separate and inferior species of being which they undoubtedly believe to be true, in common with most of the aristocracy of the time. Moreover, they speak of an ‘immoral tendency’[18] which they believe to be present in the governess and the entire lack of privacy which attaches to the position. Charlotte had experienced this herself, no doubt, in her life as a governess, belonging neither upstairs nor downstairs and loathed by servants and masters alike. The Ingram party are representative of women who subjugate others of their sex within the class conscious society in which the novel operates, and by showing them as vain and shallow as well as unkind, Bronte invites the reader to infer that their judgements are likewise via an intimate distancing.

It is interesting to compare this behaviour of Jane’s with that of Emma Bovary at a ball. Far from wishing to hide herself, Emma longs both to see and be seen on a larger stage than that of the ‘country town’ of the title:

Emma’s heart gave a faint flutter as she stood in the line of dancers, her partner’s fingers lightly laid upon her arm, waiting for the first stroke of the fiddler’s bow to give the signal for starting. But very soon her emotion vanished. Moving to the rhythm of the orchestra, she swam forward with a gentle undulation of the neck. A smile showed upon her lips at certain tender passages on the violin, when, now and again, it played alone and the other instruments were hushed. The sound of gold coins chinking on the baize surfaces of card-tables was clearly audible. Then, with a crash of brass, the music would once more strike up loudly. Feet took up the measure, skirts swelled, swishing as they touched one another, hands were given and withdrawn, eyes, downcast a moment before, were raised again in silent colloquy.[19]

This intense sensuousness follows Emma’s mockery of her husband’s desire to dance and it is clear that she wishes to enjoy this experience in solitude though not of course in isolation. She desires her husband’s absence and thus Flaubert separates the passionate Emma from the practical one. There is a danger and excitement here for which Emma longs and which is represented not only in the ‘silent colloqu[ies]’ but also in the ‘chinking’ of the ‘gold coins’ at the card tables. Flaubert foreshadows Emma’s own risk-taking here as she is thrilled by the intensity of the atmosphere in a way that Jane most decidedly is not. Further, Emma’s feelings are present in the way in which the author describes Emma’s points d’apuis involving the reader in her sensuality as ‘she swam forward with a gentle undulation of the neck’. How different is this subliminal image of the swan from that rendered by Jane? Moreover, Flaubert’s intense desire for verisimilitude will not allow for the shadowy and duplicitous register of the faux autobiographical first person narrative which Bronte adopts, and which was imitated by such notable authors as Dickens in David Copperfield (1850) and therefore attempts to present Emma as both fragile and strong, flippant and serious, a fully rounded woman, in fact, having her feet firmly on the ground in some areas but hopelessly romantic in others:

Sometimes she sketched, and Charles found much delight in standing at her side, watching her bend above her drawing-board, half closing her eyes the better to judge the effect of her work, or rolling little pellets of bread between finger and thumb. The quicker her hands moved when she played the piano, the greater his surprise. She struck the notes with a sure touch, and could run down the keyboard from treble to bass without a moment’s pause. […] But there was another side to Emma. She knew how to run her house. […] Because of all this the consideration shown to Bovary increased. [20]

It is important that Bovary ‘came to value himself the more highly for possessing such a wife’[21] as he thus inverts the received notion that a woman’s status derived from her husband, not the reverse. ’The difference within writing is then coextensive with the difference between the sexes’[22] and for the essence of mediocrity, Charles Bovary, the gifted, artistic yet apparently level-headed Emma, is the equivalent of a modern day trophy wife. Therefore, when he is betrayed by her infidelities the pain is all the greater. Marriage was the principle duty of both men and women in the centuries up to and including the nineteenth and after, and the marital state, as well as deviations from it, drives the narrative throughout both novels. Emma is highly regarded not just because she is beautiful and artistic but because she can adequately fulfil what society expects of a wife. Further, it is reasonable to assume that the latter approbation would be principally granted by the provincial matrons who will later disapprove so strongly of her behaviour. Thus, Flaubert exposes both the inherent hypocrisy of the society and the restrictive expectations of the role of a wife. Both parties to such a union are ultimately unhappy and Flaubert at least offers a reason for Emma’s behaviour by means of emphasising her husband’s mediocrity:

Had Charles but shown the will to listen, had he but suspected the movement of her thoughts, or seen but once into her mind, her heart would, she felt, suddenly have released all its wealth of feeling, as apples fall in profusion from a shaken tree. But as their lives took on a greater intimacy, so did detachment grow within her mind and loose the bonds which bound them.[23]

Analysis of a translated text is always problematic but the semantic field is so apparent here that it is possible to comment on the text with some degree of accuracy. Clearly, what drives this damning description of Charles is the fact that he manifestly has a choice; it is as if he makes no effort towards understanding his wife and thus the ‘intimacy’ which might have been is displaced by ‘detachment’. Moreover, the idea that they are ‘bound’ by their respective postures impacts upon the metaphorical rendering of the passion contained within Emma. Similarly, the repressed passion of Jane cannot be released until Rochester has in a sense been emasculated so that he needs Jane and understands her need to have an existence of her own without entrapment.

This picture of woman as imprisoned within both body and soul by the propriety of a fundamentally hypocritical society is literally true of Rochester’s ‘mad’ wife, Bertha Mason. Perhaps because of the tendency to focus upon Jane and Rochester’s romance, the plight of Bertha is rarely examined and she is confined to a Gothic stereotype which reflects Charlotte’s reading, as does the Byronic Rochester, but leaves little room for a sympathetic reading of the woman’s existence. She is simply presented as an impediment derived from an entrapment in Rochester’s youth:

Mr. Rochester flung me behind him: the lunatic sprang and grappled his throat viciously, and laid her teeth to his cheek: they struggled. She was a big woman, in statue almost equalling her husband, and corpulent besides: she showed virile force in the contest—more than once she almost throttled him, athletic as he was. […]”That is my wife,” said he. “Such is the sole conjugal embrace I am ever to know—such are the endearments which are to solace my leisure hours! And this is what wished to have” (laying his hand on my shoulder): “this young girl, who stands so grave and quiet at the mouth of hell, looking collectedly at the gambols of a demon. I wanted her just as a change after that fierce ragout. Wood and Briggs, look at the difference! Compare these clear eyes with the red balls yonder—this face with that mask—this form with that bulk; then judge me, priest of the gospel and man of the law, and remember, with what judgment ye judge ye shall be judged!”[24]

Mrs. Rochester is accorded no dignity either by her husband or Jane, indeed the terms of address attached to her are those of ‘lunatic’, ‘demon’ and the entirely divorced from human delineation of the ‘fierce ragout’. Bronte betrays her own lack of compassion here, as she distances the reader from any possibility of empathy by making Bertha appears as a monster, ‘big’ and ‘corpulent’, inhuman, in fact. She intriguingly applies the adjective ‘virile’ to the woman, too, and thereby invites an animalistic sexuality which has, in fact, the reader is led to believe caused Rochester to marry her in the first place, unaware of her family’s genetic tendency towards insanity. Moreover, by using a direct comparative with Jane, Bronte subliminally and possibly unconsciously, suggests a debasement of the female sex in Rochester’s terminology. Both women are referred to as objects, ‘this’ and ‘that’, and their comparative merits highlighted in a detached and oddly disconcerting way. In addition, his language is unpleasantly possessive, ‘that is what I wished to have’. Finally, he appeals the justice of his case to God, suggesting that his attitude is correct, even under Divine examination, disparagingly referring to both the ‘priest of the gospel and man of the law’. So effective is the author’s manipulation of this that the reader, as is undoubtedly the intent, forgets the inherent immorality and cruelty which all those present display. In this sense, the novel is guilty of corrupting the reader’s moral sensibility since it invites a faulty and amoral judgement based upon the romantic imperative the novelist pursues. The fact that Bertha is a woman, not an alien being, does not appear to enter the collective consciousness, here. Sexuality is inextricably bound up with the image of ‘the lunatic’, here, as Rochester speaks of the ‘conjugal embrace’ to which he is tied. It is clear to see, then, that for this author, the sexual drive has within it a link to a kind of wildness which sits uneasily with the image of the ‘grave and quiet’ Miss Eyre, especially since Bertha tears Jane’s wedding veil on the eve of the proposed bigamous marriage, a Freudian symbol, perhaps, of the virginal bride’s impending sexual ‘violation’. Even Bertha’s imprisonment may be likened to the earlier entrapment of Jane in ‘the red room’, itself a Gothic interlude and teeming with female sexual symbolism.

It is no accident that when she leaves Thornfield, Jane recovers, after an indeterminate and somewhat wayward and directionless journey in the abode of the seemingly asexual St. John Rivers and his sisters, Diana and Mary. It is later revealed that these women are related to Jane and they are like her, even to the extent of both being governesses. They are, of course, delivered to the reader as positive images, as was Miss Temple her role-model at Lowood, and the antithesis of the artificiality of Blanche and the animalistic Bertha. The fact that Jane is literally removed from her previous existence with all its inherent passion to the quietude of a parsonage says much about the didactic split in the presentation of women within Jane Eyre. Certainly, the author is keen to connect love with a kind of sanctity and passion is somewhat marginalised into areas which have significantly dark connectives. The well-read and steadily sympathetic sisters have little in common with the women Jane has encountered at Thornfield and indeed, even St. John himself seems insipid when compared to Rochester, thus the author’s ambivalence towards female sexuality is fundamentally present in the juxtaposition of the images of the female which are the inverse connectives between the world of Thornfield and that of the Rivers family. It may be remarked, in fact, that Jane disapproves even of the affectations of Adele, the child of a woman with whom Rochester has had a sexual relationship though he is not Adele’s father. Thus, even the innocence of the child appears to be tainted, in the author’s mind (since Jane is her centre of consciousness), by her mother’s sexually promiscuous past.

This idea of female sexuality identifies much of the imperative behind Flaubert’s novel, with his central character suffering a restricted life which we infer to be as unfulfilling sexually as it is temperamentally. Emma and Charles Bovary form an ill-matched couple but their respective discontentment stems from an intrinsic disparity that relates to more than their different aims and desires. In fact, the novel has been called ‘the tragedy of dreams’[25] and this is indeed an apt description. Flaubert created in Emma the tragedy of a woman both awakened and doomed by passion:

Pleasure and pain metamorphose into each other. Innocence is unmasked and altered by corruption. In Madame Bovary, following the disappointment of her marriage, these changes occur in Emma because of Rodolphe. Flaubert’s corrosive irony in the narrative treatment of his characters does not lessen the pain of love or the lyrical power of Emma’s erotic awakening.[26]

Emma is, then, an inverse of Jane, since her life is thwarted by marriage whereas Jane’s is fulfilled by it. In part, this is due to the nature of the narrative because Emma is not in love with Charles as Jane undoubtedly is with Rochester. There is an interesting irony, though, in that Bronte’s novel is born of her reading whereas Flaubert depicts his heroine as in part destroyed by the romantic dreams which have emanated from hers:

In the days before her marriage she had fancied that she was in love. But the happiness love should have brought her did not come. She must, she thought, have been mistaken, and set herself to discover what it was that people in real life meant by such words as ‘bliss’, ‘passion’ and ‘intoxication’–words, all of them, which she had thought so fine when she read them in books.[27]

Flaubert was of the ‘realist’ school and by producing a heroine corrupted by the romances with which she had been indoctrinated, he emphasises the difference between a woman’s life in reality and as lived vicariously in the projected images of female enchantment to which Emma here refers. Moreover, Flaubert foreshadows Emma’s ultimate tragedy by the ominous words, ‘[she] set herself to discover what it was that people in real life meant by such words as ‘bliss’, ‘passion’ and ‘intoxication’’. Emma’s innate passion for romantic love is revealed as a childhood sensibility and therefore basic to her. She has been educated in a convent (which Charlotte with her anti-Catholic prejudices would have found appalling in itself) but even there she sees the ‘metaphors of affianced lover, husband, divine wooer and eternal marriage, which were for ever recurring in the sermons that she heard, [and that] moved her heart with an unexpected sweetness’[28]. By juxtaposing love, marriage and religion, Flaubert again invites a religious connective with Emma herself. As was noted earlier, he often dresses her in the blue of the ‘Blessed Virgin’ and here he is quite provocatively bringing together, in Emma, the twin images of woman in the nineteenth century collective consciousness as either ‘Madonna’ or ‘whore’.

In addition to her fictionalised pictures of love drawn from books and religion, Emma is influenced by the stories of an ‘old maid’[29] who visits the convent and because she belongs ‘to an old family of gentlefolk ruined by the Revolution’[30] she ‘enjoyed the special favour of the archbishop’[31] and was almost part of the convent, privileged to eat with the nuns. This reveals much about the class-consciousness of nineteenth century France as well as the perception of women, since the archbishop controls not only the nuns but also who may be thought worthy to consort with them. Ironically, this old lady sings to the girls ‘love songs of the previous century’[32] and:

[…] told stories, brought news of the outside world, executed small commissions in the town, and secretly lent to the older girls one or other of the novels that she carried in the pockets of her apron, and that she herself devoured in the intervals of labour. They were concerned only with affairs of the heart, with lovers and their lasses, with persecuted damsels for ever swooning in solitary pavilions, with outriders meeting a violent death on every journey, and horses foundering on every page, with dark forests and agonies of sentiment, with vows, sobs, tears and kisses, with moonlit gondolas, with groves and nightingales, with cavaliers who were always brave as lions, gentle as lambs, and virtuous as real men never are, always elegantly dressed and given to weeping with the copious fluency of stone fountains.[33]

Again, Flaubert the realist presents a tongue in cheek picture of the ‘positive’ images for girls selected by the church, since the old maid of whom the archbishop thinks so highly is potentially dangerous. She also enters into secret negotiations with the girls and bridges the protective gap between the convent and the outside world and fills their heads, as she does her own, with images straight out of Gothic Romance. Flaubert also emphasises that the heroes in these stories are ‘virtuous as real men never are’, which foreshadows Emma’s later tragic romances with men as they actually are.

Thus, Flaubert brilliantly involves the reader in a broad sweep of society’s image of women and the external influences which encroach upon them despite the best efforts of enclosure perpetrated by the patriarchal society in which the novel operates. In many ways, Emma’s future self is determined by her childhood as much as is that of Jane. When Emma is eventually ‘in love’ she is betrayed and because of this she is doomed since she has so inveterately been schooled in the expectations of the romantic novel. Through Emma, then, Flaubert is able to develop the theme of a reactive against a genre of which he powerfully disapproved.

A further, deeply Freudian, image of women is produced via Charles’ relationship with his mother. This controlling woman has arranged her son’s first marriage, by which she never feels threatened, but is much less secure as ‘her son’s favourite’[34] now that he has Emma in his life:

Charles’s love for Emma seemed to her like an act of treachery to her affection, a trespassing on ground which was hers by right.[35]

This bizarre connective of displacement, with all its psychoanalytical implications, has resonance later when Emma, uninterested in her daughter, Berthe, for a long time suddenly becomes maternal following rejection by her lover. In this way, Flaubert once again examines the nature of the connective between the images of womanhood commonly represented in contemporary society. In addition, he examines the corrupting influence of the over-bearing mother, who ‘remind[s] him of her pains and sacrifices on his behalf’[36] and Charles is caught in the all too familiar trap, even today, of wanting both to honour his mother and please his wife:

Charles did not know how to answer these outbursts. He respected his mother but was deeply in love with his wife. He held the former’s judgement to be impeccable, yet found the latter beyond reproach.[37]

The extraordinary contemporaneousness of this dilemma emphasises the fact that perhaps Flaubert’s novel holds up better than the more popular Jane Eyre with its outdated mores and Gothic imagery. Perhaps this preference is, in fact, an enduring symbol of a generic resistance to the ‘real’ in the novel and the fact that women remain largely the readers of such fiction as Charlotte’s rather than Flaubert’s is indicative of an inherent, if politically incorrect, desire in the female to seek romance.

The women in both of these novels stand against what society expects of them but the very different nature of their stance is represented powerfully by their contrasting endings: Jane Eyre becomes the happy wife whilst Emma Bovary commits suicide. Tracing these endings gives an indicator of society’s perceived apprehensions of a woman’s role and the individual author’s widely different directives.

However, there is no simplicity to this as Jane’s resolution is gained only by means of the ‘diminishment’ of Rochester; she has to become his nurse, as she was once his comfort and refuge, before she can become his wife:

The caged eagle, whose gold-ringed eyes cruelty has extinguished, might look as looked that sightless Samson. And, reader, do you think I feared him in his blind ferocity?—if you do, you little know me. A soft hope blent with my sorrow that soon I should dare to drop a kiss on that brow of rock, and on those lips so sternly sealed beneath it: but not yet. I would not accost him yet.[38]

Rochester is portrayed here as the Byronic hero sufficiently reduced in status as to make it possible that Jane can be his ‘equal’, it is almost as if Bronte somehow feels that the dynamic presence of Rochester would itself be reduced if he were not in some way diminished in order to marry her. Thus, the novelist’s own perceptions come under scrutiny since there is a clear ambivalence in a woman who seems throughout her semi-autobiographical and intensely personal novel to promote an image of a woman who can stand alone but who subliminally, perhaps, becomes a reductive image in her marriage. Addressing the reader directly, as she does when she famously declares that she married Rochester, Jane suggests that the reader does not, perhaps, ‘know’ her after all.

Emma’s suicide is handled much more directly in keeping with the woman Flaubert has sought to reveal, even in death seeming both passionate and beautiful:

Emma was lying with her head on her right shoulder. The corner of her open mouth formed, as it were, a black hole in the lower part of her face. Her two thumbs were flexed inwards towards the palms of the hands. There was a powdering of what looked like white dust on her lashes, and her eyes were beginning to disappear in a viscous pallor which gave the impression that spiders had been spinning a delicate web over their surface. The sheet sagged between her breast and her knees, rising, further down, to a peak above her toes. It seemed to Charles as though some great weight, some mass of infinity, were lying upon her.[39]

The overwhelming impression here, especially in Charles’ perspective, is that Emma is a woman crushed by her passions and surrendering to guilt, ‘a mass of infinity’, which is perhaps appropriate given the mores of the time. However, Emma is as the reader first saw her, with her mouth parted, albeit here transmuted to the ‘black hole’ which forms the ‘lower part of her face’. Is this then the inversion of her passionate nature or merely the novelist’s naturalistic rendering of a corpse? The delicacy of the description suggests a sympathetic

UK Books and Publishing Industry Analysis

Table of Contents

1. Introduction5

1.1 Objective5

1.2 Reasons for Choosing the UK Books

and Publishing Industry6

2. Industry Overview9

2.1 Market Size and Attraction10

2.2 Market Sectors10

2.2.2 Paperback11

2.2.3 Electronic11

2.2.4 Fiction11

2.2.5 Non-fiction11

2.3 Industry Target Markets12

2.4 Market Sales, Performance and Activities14

2.4.1 Domestic Market14

2.4.2 Export Sales15

2.4.3 Imports16

2.5 Publishing Companies17

2.6 Employment19

2.7 Distribution20

2.8 Major Trends and Developments21

2.8.1 Emerging Book Formats21

2.8.2 Emerging Distribution Channels and Markets22

2.8.3 Developments in Technology and

Concerns in Copyright and Production23

3. Industry Analysis – PESTEL24

3.1 Using the PESTEL Analysis24

3.2 Political Factors24

3.2.1 Taxation24

3.2.2 Pricing24

3.3 Economic Factors25

3.3.1 Global Economic Factors25

3.3.2 UK Economic Trends25

3.4 Social Factors26

3.4.1 Consumer Preferences26

3.4.2 The Internet and Technology26

3.4.3 Reading Habits27

3.5 Technological Factors27

3.5.1 The Digital Age27

3.6 Legislative27

3.6.1 Copyright and Intellectual Property27

3.6.2 Market Regulations for New Entries28

3.7 Environmental 28

3.7.1 The Issue of Paper28

3.7.2 Other conservation measures29

4. Industry Analysis – Porter’s Five Forces Model29

4.1 About Porter’s Five Forces Model29

4.2 Rivalry29

4.3 Supplier Power29

4.4 Buyer Power30

4.5 Threats of Substitutes30

4.6 Barriers to Entry30

5. Conclusion31

References34

List of Tables

Time Spent of Main Activities, by Sex, 20058

Total Book Sales 1998-200210

Projected Book Sales: 2002-200710

Unit Book Sales by Format: 1998-200211

Projected Book Sales by Format: 2002/200712

Value Book Sales by Target Market: 1998-200213

Projected Book Sales by Target Market: 2002/200713

Publishers’ Export Sales: 1998-200116

Book Imports: 1998-200117

Leading Publishers Ranked by Total Retail Sales 2001/200218

Total Employment in the Publishing Industry 1998-200220

Retail Distribution21

The UK Books and Publishing Industry Analysis

1. Introduction

According to the Encyclopaedia of Global Industries (‘Book Publishing’, 2007), global spending on books increased from US$85.3 billion in 2000 to US$104.6 billion in 2005. This is despite the fact that the global demand for books had significantly dropped for a number of reasons. One of the major reasons cited for this drop was the September 11 terrorist attacks in the United States. In contrast, the United Kingdom (UK) is currently one of the world’s leading players in the world of publishing. However, it remains behind to major global producers the United States, Japan and Germany. UK is followed by another European major publisher, France In 2002, the UK book and publishing industry reached the value of a‚¤2.5 billion (‘Books and Publishing – United Kingdom’, 2003) and continues to be the major location of European publishing’s central operations and the U.S. publishing’s gateway across the Atlantic.

1.1 Objectives

The UK books and publishing industry is one of the UK’s distinct industries. As stated above, UK ranks among the world’s major book and publication producers. Readers across the globe are familiar with the UK’s contribution to the publishing world . UK writers have long been one of the more famous sets of writers in the classic and modern histories. Ranging from William Shakespeare to J.K. Rowling’s Harry Potter franchise, the UK books and publishing industry continues to play a significant role, especially among the English-language readers across the globe. However, the new media forms that have been emerging lately such as electronic and online forms of publishing currently challenge the publication preferences of the consumers today and UK print media too has got impacted.

The present study is an attempt to analyse the UK books and publishing industry. The objectives of this industry analysis are as follows:

Provide an overview of the UK books and publishing industry, its current status and projected directions.
Analyse the factors that influence the current and future operations of the industry by using the tool of PESTEL analyses.
Assess the books and publishing industry and its impact and performance in the market by using market analysis tools of Porter’s Five Forces.
Determine the critical factors that can determine the future of the UK books and publishing industry.

1.2 Reasons for Choosing the UK Books and Publishing Industry

The UK remains to have a healthy and dynamic book and publishing market; not only does the UK contain one of the significant market shares in the global book market, it boasts of a number of in-demand authors. Books and publishing in the UK highlights the society’s inherent love for books .

What is interesting in the UK book and publishing industry can be seen in the following factors:

(1) UK has had a significant role in the publishing world especially among English-language readers across the globe; however, in terms of industry size, UK remains behind book producing giants the United States, Japan and Germany. These three countries have a competitive production advantage:

the United States has strong media and entertainment industry which has also influenced its publishing sector;
Japan is known for its graphic novel and books publication, as driven by the strong manga culture and demand;
Germany’s media corporate giant, Bertelsmann, has managed to own and merge with large publishers, which makes this German company a significant player in the global industry (‘Book Publishing’, 2007).

(2) New forms of media, electronic publishing and the Internet, have emerged which have challenged the conventional publishing forms. Electronic publishing and the Internet has become a challenge in a number of areas including the redefinition of publication format (electronic or published through the Internet) and publication access (self-publishing has become popular online). This also influences the amount of interest the public continues to have in books especially when more recreational forms have evolved which may be preferred over picking up a magazine or a book. Besides, recent times have also witnessed a rise of online / virtual schools and other forms of virtual reality which has now given way to emergence of digital versions of these books or e-books.

(3) Emerging markets brought by globalisation also affect the expansion of UK publishers to other parts of the world. This is in addition to the increasing demand for English-language learning courses in non-English speaking nations can encourage the publication of books. Regional authors too can increase the interest of the global readers, and it is interesting to see how the UK publishing industry has responded to these new opportunities.

In addition to this, it is interesting to evaluate the performance of this huge industry that reaches different global markets and at the same time, is serving a more particular sector of the people’s reading habits. Based on a survey on leisure activities in 2005 by the National Statistics Office’s, reading has been cited as constituting a negligible part of how people spend their time every day. Reading, on an average, only accounts for 23 minutes among men and 26 minutes among women. The following table illustrates how this industry has been catering to a fraction of people’s average daily activities:

Time Spent of Main Activities, by Sex, 2005

(‘Time Use Survey’, 2006)

As can be seen in the table, reading has taken a backseat as compared to the time people spend watching television or having a “social life”. A similar survey conducted in 2001 among full-time workers on how they spend their free time, reading emerged as the third highest activity whereas games/hobbies/computing came in close behind (‘Lifestyles’, 2004). Evidently, in the previously cited more recent survey, games/hobbies/computing activities have overtaken reading. However, this peculiar development holds true among males who spend an average of 37 minutes in playing games, indulging in hobbies or working on computers whereas women tend to be ardent readers, thereby spending more time reading than other hobbies. It should also be noted that reading does not only limit itself to the products of the book and publishing industry as the Internet has also become a significant source for information.

2. Industry Overview

2.1 Market Size and Attraction

According to the Confederation of British Industry, the book sector has been one of the significant drivers in the overall UK retail sales growth, along with furniture and groceries (‘Books and Publishing – United Kingdom’, 2003). This shows that books are among the main purchases that people make in a combined demand in the leisure and educational sectors.

The UK books and publishing industry reached the a‚¤2.5 billion mark in 2002, making this industry having a positive overall outlook. Volume and value gains were seen rising from 2001 to 2002 at 12.1% and 16.8% respectively. The 12.1% volume increase reflected the 323.8 million units sold by 2002, which contributed to the compounded annual growth rate (CAGR) of 2.9%. Positive developments were also experienced, which started from the late 1990s up to the beginning of the millennium, with strong value gains eventually contributing to the 4% CAGR since the surge in sales in 1999 (‘Books and Publishing – United Kingdom’, 2003).

Total Book Sales 1998-2002

( Euromonitor International: Country Market Insight)

Projected Book Sales: 2002-2007

( Euromonitor International: Country Market Insight)

According to the Publishing Industry Market Review 2006, the total publishing market was worth 18.63bn in 2005, having increased by 7.6% across the review period (2001 to 2005). The Publishing Industry is defined by Newspapers, Magazines as well as Book publishing. Newspaper publishing accounts for the largest share of the market’s total value, followed by magazine publishing and book publishing.

Within the books and publishing industry in 2004, retail book sales were ?3.98bn which represents a 3.2% increase on 2003.( UK Publishing Industry 2005,) Since 1999, the market has grown by a total of 16% and around 67% of the market’s value is consumer books. The UK Publishing Industry 2004 report indicates that the UK publishing market is expected to grow by 12.9% between 2004 and 2008. Magazine revenues are likely to rise by 17.3%, newspaper revenues by 15.2% and book publishing by 14.7%. (UK Publishing Industry 2004,).

2.2 Market Sectors

The commercial publishing industry extends far beyond books and journals. Products are available in electronic as well as print form.

The overall book and publishing industry (‘Books and Publishing – United Kingdom’, 2003) can be classified on the basis of format and category

Format:

2.2.1 Hardbacks

Hardback formats are hardbound books. This format can be commonly found among books for children, new releases, and non-fiction books.

2.2.2 Paperback

Paperback or softback is the most common format . This dominantly makes up the books targeted for commercial and educational purposes.

2.2.3 Electronic

The electronic formats are the non-paper based products available on CD-ROM, or as audio books, e-books etc.

Category:

2.2.4 Fiction

The fiction category includes children’s books, novels across genres (crime, Western, thriller), historical, romance, etc.

2.2.5 Non-fiction

The non-fiction category includes educational, academic and professional books, reference books, travel guides, DIY, etc.

The performances of these different sectors (by format) are illustrated in the following table (‘Books and Publishing – United Kingdom’, 2003):

Unit Book Sales by Format: 1998-2002

(Euromonitor International: Country Market Insight)

Projected Book Sales by Format: 2002/2007

(Euromonitor International: Country Market Insight)

Based on the performance of the two main categories, fiction and non-fiction, the latter continues to dominate the book sales and continues to grow (‘Books and Publishing – United Kingdom’, 2003):

2.3 Industry Target Markets

Books can also be classified on the basis of the target market: consumer and institutional (‘Books and Publishing – United Kingdom’, 2003). The consumer market is the mainstream book market which includes regular readers and individual buyers. The institutional market for books is defined by institutions or organisations that buy books for specific purposes such as libraries. It also includes the books bought by the education sector.

There is a potential confusion as to the identification of the consumer and the institutional market as the consumer market also includes publications for academic and professional purposes. However, institutional books are mostly identified by means of prevailing theme and the market segment, such as in the case of libraries and field-specific institutions (i.e. law books collection) whereas the consumer market’s main source of distribution channel are bookshops, online stores, etc. In terms of performance, the consumer market has a significant market share over the institutional market. The total sales brought by he consumer market in 2002 was at a‚¤2.0 billion, thereby having 80.3% of the overall book market share. Average growth was cited at 17.4%, with the surge of sales throughout the year usually picking up during the last quarter (‘Books and Publishing – United Kingdom’, 2003).

The institutional market has been also experiencing positive growth at 14.3%, with its sales reaching a‚¤490.6 million and comprising 19.7% of the overall market sales. Educational sales continue to dominate the institutional sales at 63.4% whereas contributions from the library sector continue to fluctuate. As can be observed from the table given below, there was a significant drop in library sales from a‚¤114 million to a‚¤101

million from 1998 to 1999, with this particular sector experiencing fluctuations until 2002 (‘Books and Publishing – United Kingdom’, 2003).

Value Book Sales by Target Market: 1998-2002

(Euromonitor International: Country Market Insight)

Projected Book Sales by Target Market: 2002/2007

(Euromonitor International: Country Market Insight)

2.4 Market Sales, Performance and Activities

The UK books and publishing industry relies on various market forces in order to maintain its dynamism; this can be attributed to its performance mainly on domestic sales, and then through the export and import volume and sales.

2.4.1 Domestic Market

As previously mentioned, the consumer market mainly comprise of the industry’s domestic sales. Strong performance has been seen across sectors and categories, with positive developments in fiction as well as non-fiction books. Sales in fiction category experienced an average increase of 56% from 1998 to 2001, although non-fiction remains to have the significant market share (‘Books and Publishing – United Kingdom’, 2003).

A number of market strategies have emerged in order to have the publishers improve their performance. It has been noted that UK has even adopted an American market strategy framework which includes book tours and taking advantage of the different media channels to increase exposure and promotion such as online book ordering promotions and book superstores (‘Book Publishing’, 2007).

It can be observed that this has been apparent in the franchising sector in which UK fictional giant, the Harry Potter franchise, have further ventured into film and consumer products. In a way, books have established a force to create a peripheral market sector which relates the books to other relevant industries. However, the opposite takes place when classic British books such as J.R.R. Tolkiens’ The Lord of the Rings and C.S. Lewis’ The Chronicles of Narnia were made into movies, and because of the success of this channel, book sales for these works have also experienced a significant increase as this has become a promotional means in order to sell more books. Such strategy is not only felt in the UK domestic sector but also in other global sales as well.

2.4.2 Export Sales

UK books are exported throughout the world and a cited increase of 4.4% was seen from 1998 to 2002. As per a Department of Trade and Industry (DTI) report, the export market is worth approximately ?1.4bn a year. However, UK’s main export competition comes from the United States, which also produces English-language books. Some exporting strategy can be also seen through the industry (‘Books and Publishing – United Kingdom’, 2003, p. 19):

Although the worldwide Harry Potter phenomenon had a strong impact on exports, particularly over the 1999/2000 period, non-consumer publishing book sales were also a mainstay of export performance. English is the world language for titles in the scientific/technical/medical category and as such, the UK dominates the field internationally in terms of sales. For publishers of these kinds of texts exports can account for up to 60.0% of sales, particularly to the US, and it can be of great advantage for a publisher to have an American arm or to be part of an American-controlled group in terms of securing US rights of publication.

In this case, despite the stiff competition with the US titles, UK books have also been performing fairly well in the United States; the UK mainly exports to the United States. In fact, UK has been the largest exporter of books to the United States books market. The performance of the UK publishers’ export sales are as follows (‘Books and Publishing – United Kingdom’, 2003):

Publishers’ Export Sales: 1998-2001

(Euromonitor International: Country Market Insight)

2.4.3 Imports

The UK also imports books from overseas markets such as the United States. Interestingly, Asian markets have been contributing significantly to UK book imports. The second largest imports, after the United States, come from Hong Kong, and the fourth largest market is Singapore; China too is also among the top sources, gaining the eighth import source position in 2001 (‘Books and Publishing – United Kingdom’, 2003).

Interestingly, UK imports increases industry competition, with its value rising at 16.6% within the period 1998-2001. The following table shows the import value during this time period (‘Books and Publishing – United Kingdom’, 2003):

Book Imports: 1998-2001

(Euromonitor International: Country Market Insight)

2.5 Publishing Companies

Each of the three sectors of publishing in UK-newspapers, magazines and books- is dominated by around a dozen companies. Only a few companies are active in more than one sector. In fact, only Pearson PLC is involved in all three markets in a significant way. News Corporation, which publishes newspapers and which owns the book publisher Harper Collins too has entered the magazine market early in 2006. The UK publishing industry is still primarily UK owned. However, in the magazine market, there are several foreign-owned companies. These include the following:

The Conde Nast Publications Ltd
Hachette Filipacchi (UK) Ltd
IPC Media Ltd
The National Magazine Company Ltd
The Readers Digest Association Ltd and VNU Business Publications Ltd.

As indicated in Books and Publishing – United Kingdom 2003

The UK is not the home base of any major media player, such as Bertelsmann, Vivendi or AOL Time Warner. The regulations on media ownership make it easier for new entrants from abroad to establish a presence in the UK than for UK companies to substantially enlarge market share. Most of the major players in the book industry

are owned by international multimedia publishing concerns, and therefore the most helpful form of comparison is to analyse leading publishing houses, and the results of the consolidated groups which own them.

(‘Books and Publishing – United Kingdom’, 2003, p. 23)

Thus, the books and publishing industry in the UK is characterised by a handful of global conglomerates or international companies, such as Reed Elsevier Group PLC, Pearson PLC, The Random House Group Ltd and Harper Collins Publishers Ltd. The leading publisher in the UK, HarperCollins, is a merger of British publisher William Collins Sons and Co Ltd. and the American publisher Harper & Row. Today, HarperCollins is owned by the American media conglomerate, News Corp., although HarperCollins UK is the UK’s leading publishing house (Books and Publishing – United Kingdom’, 2003; ‘Harper Collins’, 2007).

In the recent years, many other companies have been acquired and merged. For instance, in 2004 a major development was the acquisition of Hodder Headline from WH Smith by the French publisher Hachette Filipacchi in 2004. This merely added to further internationalisation of UK publishing. Hachette already owned Orion which further owned Weidenfeld & Nicholson. This has lead it to become the UK’s second-largest consumer book publisher. Macmillan and Random House are both owned by German companies. These main drivers of these developments have been the business strategies applied by these corporations. These strategies can be observed to be influenced by forces such as globalisation and certain deregulations when it comes to foreign operations. Besides these, other major publishers are Blackwell and the university presses of Oxford and Cambridge.

The following table shows the leading publishers in the UK according to sales (Books and Publishing – United Kingdom’, 2003):

Leading Publishers Ranked by Total Retail Sales 2001/2002

(Euromonitor International: Country Market Insight)

2.6 Employment

By 2002, the books and publishing workforce, which also include employees in the printing sectors, were recorded at 352,000; according to the National Statistics, this figure was at 366,000 in 2001 (Books and Publishing – United Kingdom’, 2003; ‘Harper Collins’, 2007). In 2004, approximately 280,000 people were employed nationally and about 15% work part time.

It has been cited that the books and publishing industry has not offered a very promising development to its workforce in terms of pay and employment confidence (Books and Publishing – United Kingdom’, 2003, p. 22):

… In a recent survey by Bookcareers.com, 66% of employees in the industry said that they had lost colleagues to redundancy. There is widespread discontent in the industry, particularly over the issue of pay. Levels of pay, especially for starting salaries, are notoriously low, particularly bearing in mind the level of education required for publishing work, and starting salaries can be as little as ?15,000 a year. Pay is a factor in most employees’ lives,

particularly because most of UK publishing centres around London and the South East, where house prices are

simply unaffordable for people earning average salaries in the industry.

In addition to this, professional development does not sound as promising in this industry due to the lack of training initiatives and specific professional skills. Professionals in this industry are mostly managerial in nature. Hence, in terms of skills development, the demand has not been as impressive in this sector. It is therefore not as surprising that the number of employees in the industry has been discouraging in terms of rate, and employment has been also bleak due to redundancies.

Total Employment in the Publishing Industry 1998-2002

(Euromonitor International: Country Market Insight)

2.7 Distribution

In the past consumers were buying books through a variety of distribution channels such as large chain bookstores book clubs and independent and small chain bookstores, mass merchandisers, mail order, food and drug stores, discount stores, used books etc. The traditional bookshops have been losing their influence and as a result such booksellers have been also starting to fold up. The Internet is becoming one of the most active distribution channels for books and publications. Although the Internet does not have as much distribution share at this point, it continues to contribute significantly in this area as it also continues to increase as a highly-used distribution channel.

Book retailers continue to dominate the product distribution; these retailers include chained retailers and independent bookshops. As compared to independent bookshops, in recent times, , bookshop chains are starting to increase its market grasp and influence (Books and Publishing – United Kingdom’, 2003).

Another distribution source is through book clubs. The UK’s leading book club, BCA, combines to book club concept and its mail-to-order scheme, in addition to smaller subdivision of smaller book clubs.

The book retail distribution trends have been presented in the following table: (Books and Publishing – United Kingdom’, 2003):

Retail Distribution

(Euromonitor International: Country Market Insight)

It can be observed that there has been significant increase in sale through Internet and multiple (chained) booksellers whereas there has been a decrease in distribution through independent booksellers and book clubs/mail-to-order.

2.8 Major Trends and Developments

The dynamism of the books and publishing industry in the UK can be determined by the key trends and developments that can eventually affect how the industry operates and performs.

2.8.1 Emerging Book Formats

As previously mentioned, new formats such as e-books, CD-ROMs and audio books have now entered the market. Among the three, e-books have been creating a stir due to a number of reasons: it is in digital format that can be easily downloaded.

What also works well with the emergence of e-books is the emergence of technologies.. For example, PDAs have now developed into small, handheld computers that can carry a substantial amount of data; e-books, which are usually in the PDF can be easily downloaded in PDAs and accessed through PDF reader (Microsoft Reader and Adobe Acrobat). Hence, people do not have to carry large books around as they can easily access them through their devices. As per the statistics from an online download source for public domain books, manybooks.net, PDF downloads have reached almost 140,000, not including the other electronic book formats such as eReader and RTF, and downloadable text in HTML format (Nagle, 2007). In any case, the number of downloads can reach hundreds of thousands, and this only includes books from one website and works within the public domain.

Another popular source of free e-books is Project Gutenberg (Project Gutenberg, http://www.gutenberg.org/wiki/Main_Page) which claims to have over 2 million downloads every month.

2.8.2 Emerging Distribution Channels and Markets

As discussed in the distribution channel section, the Internet is becoming to impress its influence among UK consumers; book sales online experienced an 11% growth in 2001 and continues to be significant till date. Although some online start-ups wanted to take advantage of the UK market, most of them were adversely affected by the dotcom bubble in the 1990s. Expectedly, Amazon.co.uk is the top online seller of books in the UK (Books and Publishing – United Kingdom’, 2003).

2.8.3 Developments in Technology and Concerns in Copyright and Production

Technological developments have largely affected the books and publishing industry. As previously mentioned, technolo

The Transformational Process Model

The Transformational Process Model

A contrast of the transformational process model as it applies to the manufacturing (car manufacturing) and service (advertising) industries.

Slack et al provide a model which assists in understanding the transformational process. Their model looks at the transformation of inputs into outputs of goods and services and the range of activities and operations that an organisation undertakes as part of this process. Slack et al’s transformational process model is robust enough to apply to both manufacturing and service industries and it is perhaps in contrasting these two areas that one is best able to understand the usefulness of their model.

In simple terms, Slack et al’s the transformational process model deals with the process involved in transforming an input resource into an output good or service (Slack et al, 2001, p.9). A generic transformational process model can be set out as follows (Slack et al, 2001, p.10):

The above generic input-transformation-output model applies to the operations of most organisations. However, as with any generic model, it fails to sufficiently differentiate between subtleties. As such, when considering differences between different types of operations (ie manufacturing and services) and then considering further differences within those different types (ie different types of manufacturing operations), it is necessary to expand on the generic input-transformation-output model set out above.

In terms of the generic transformational process model set out above, it is important to note that inputs to the process will either be “transformed” or “transforming” resources. Slack et al define “transformed” resources as being “the resources that are treated, transformed or converted” (for example, materials, information and customers) and “transforming” resources as being “the resources that act upon the transformed resources” (for example facilities and staff) (Slack et al, 2001, pp.10-11).

Slack et al note that in most cases, one of the transformed resources takes precedence over the other two. So for instance they note that while a bank devotes some of its time to processing materials and customers, its main focus is on processing information (Slack et al, 2001, p.11). However, it should be noted that in a modern, inter-dependant economy, it is unlikely that any organisation is able to operate without touching on each of the transformed resources and as such, the issue becomes one of the extent to which the other transformed resources are touched upon rather than whether or not an organisation’s operations touch on them at all.

With respect to transforming resources, Slack et al refer to two types which form the “building blocks of all operations”. These are “facilities”, “the buildings, equipment, plant and process technology of the operation” and “staff”, “those who operate, maintain, plan and manage the operation” (Slack et al, 2001, p.11). Slack et al note that the transformation process is closely connected to the nature of the input resources which are being transformed. The three predominant types of operation processors are material processors, information processors and customer processors. Material processors predominantly transform the physical properties of the input resources, but may also change their location, their possession or store the materials. Information processors transform the informational properties of the input resources, the possession of the information, store the information or change the location of the information. Customer processing operations may change the physical properties of the input resource, store the resource, change the location, change their physiological state or their psychological state (Slack et al, 2001, pp.12-13).

However, it is important to note that each macro organisational process also consists of numerous micro organisational processes (eg marketing and sales, set and props manufacture, engineering, production units and finance and costing) each of which contribute to what Slack et al (2001, p.19) refer to as the “end to end business process”. The flow of information, materials and/or customers throughout this end to end business process is often extremely complex. In terms of operations management, understanding that the transformational process model applies both at the macro level and at a micro level allows an organisation’s management to ensure that managers at all levels within the organisation understand that to a certain extent they are all involved in ensuring that their operation involves a transformational process and that it is only where the transformational processes of all these micro operations operate smoothly that the macro transformational process can be successful.

It should also be noted that in many cases, organisations seek assistance from external organisations with respect to those micro processes. Thus for instance, an advertising agency provides a service which a large car manufacturing company may process internally. Or for instance Nike, which is thought of as a shoe manufacturer, is in fact a marketing processor specialising in shoes (the manufacturing of the shoes is, while done to Nike’s specifications, performed by external contractors with Nike concentrating on developing and maintaining their brand image).

Slack et al (2001, pp. 18-19) refer to three core functions as transformation process operations. These are “product/services development function”, “operations function” and “marketing function”. The product/services development function involves “designers design software -> producing effective new products and services -> appropriate designs as promised and to budget”. The operations function involves “transformed/transforming resources -> producing service value for customers -> products and services”. The marketing function involves “sales people marketers market information -> producing sales and market plans -> orders marketing plans as promised and to budget”.

As noted above, different types of operations (ie manufacturing and services) will involve different types of inputs, a different transformational process and result in different types of outputs. In order to compare how these differences are covered by Slack et als transformational process model, it is perhaps best to compare and contrast two specific examples. In this case, it is intended to compare and contrast differences between the transformational process of a car manufacturing operation (manufacturing) and an advertising agency (service).

In terms of the basic input-transformation-output process, a car manufacturing and advertising agency’s operations can be described as follows:

Operation

Input resources

Transformation process

Outputs

Car manufacturing

Steel/plastic/other materials

Car manufacturing equipment

Machine operating staff

Car manufacturing plant

Design and procurement

Fabrication

Assembly

Testing

Distribution

Cars

Advertising agency

Creative staff

Admin staff

Computer systems

Information

Customers

Offices

Client solicitation and pitching

Creative production

Delivery

Account

management

Advertisements

Increased sales

One of the fundamental differences between the transformational process of a car manufacturing operation and an advertising agency is balance between facilities and staff resources. The car manufacturing operation will have much of its investment in physical facilities with the focus of operations managers in such an organisation being on ensuring that those facilities are operating smoothly. The transformational process for a car manufacturing plant is a technical/mechanical process which should run exactly the same every time. While there is creativity involved in the initial design stage of the vehicles and parts, the fabrication stage should involve no creativity and will essentially follow a set process which is repeated hundreds, if not thousands, of times each week with the purpose being to lower costs by automating the same repeated tasks. While staff in a car manufacturing operation remain important, their importance is secondary to the operation of the facilities themselves (ie should there be a problem with the operation of the facilities, the staff are not in a position to continue assembling the cars on their own – ie their effectiveness is directly linked to the effectiveness of the facilities themselves).

Conversely, the importance of facilities to an advertising agency is entirely secondary to the importance of the staff that it employs. Preparing an advertising campaign is a largely creative process which varies from client to client and which does not therefore lend itself to automation. Due to the creative nature of an advertising agency’s work, should the facilities of an advertising agency for some reason become temporarily unavailable, it should be able to continue its operations using the same staff.

Naturally, the importance of the less important transforming resource should not be underestimated and it is not the case that either of these two operations can continue without both transforming resources. Rather, it is that one of these transforming resources is more fundamentally important than the other. For instance, while an advertising agency’s staff should be able to continue with their transformational work even where the facilities they have been using are temporarily unavailable, it is highly likely that their transformational work will be less effective especially where the unavailability of facilities involves not only office space, but more importantly, informational resources such as computer systems, market research information, etc. Likewise, while a car manufacturing operation can replace staff that for instance, go on strike, the efficiency and effectiveness of newly employed staff will be lower than those who have experience working with the machinery and the organisation’s operational process. The point is that the balance for a car manufacturing and an advertising agency are different between facilities and staff and so too are therefore each organisation’s operations management concerns (Slack et al, 2001, p.12).

With respect to the transformational process, a car manufacturing operation is predominantly a materials processor while an advertising agency is predominantly an information processor. A car manufacturing operation transforms the physical properties of the input resources involving the input of steel, plastic, and other materials the nature or which are then physically transformed into cars. An advertising agency on the other hand deals with information as its input resource (for instance, market research, demographic data, previous advertising campaign effectiveness, customer aims, etc) and transforms these into advertising campaigns the goal of which is to increase its customers’ sales.

The operational outputs also differ substantially as between a car manufacturing operation and an advertising agency. Perhaps the most profound difference is that the outputs of a car manufacturing operation are an actual tangible product while for the advertising agency it is an intangible service. The difference between these two types of outputs affects such considerations such as storability, transportability, simultaneity, customer contact and quality (Slack et al, 2001, pp.13-14).

Clearly a car has a degree of tangibility that an advertising campaign does not. This means that a car is able to be stored and transported. Likewise, the car manufacturing process involves production well before the customer ever sees it while with an advertising campaign, the psychological aspects occur simultaneously with its execution. As most customers will purchase a new car from a manufacturer’s own branded car yard, there is some contact between customer and manufacturer (more so than with other types of manufacturers such as for example household appliances where the manufactured good is sold via a third party retailer with no relationship with the manufacturer). The integrated supply chain for car manufacturers also affects the quality in that whereas with other manufactured products, the relationship between manufacturer and customer is more distant, the integrated supply chain for car manufacturers means that the customer is more likely to judge the quality of the operation from the quality of the product (although still not to the same extent that they would for a pure service such as a hair cut).

Slack et al (2001, p.15-16) note that all operations fall somewhere within the spectrum between pure goods producers and pure service producers, with most operations producing a mixture of both products and services. They propose that each producer has a predominant type of output and that any peripheral output for that producer is referred to as a “facilitating” output. That is, for a goods producer, any services produced shall be “facilitating services” (eg technical advice) while for a services producer which produces peripheral goods (eg report and documents) these represent “facilitating goods”. This is perhaps a dated view of such operations which Slack et al acknowledge when noting that the distinction between services and products is becoming increasingly difficult to define. Perhaps a more accurate distinction is between the types of processors (ie materials, information and customer) rather than simply between goods and services.

In reality, many service operations (especially information processors) do produce a tangible output which can be stored (for instance a travel agency will produce a booking which is reflected in a physical itinerary, a law firm will produce legal documents, a bank will produce bank statements, etc). It is generally customer processors (such as theme parks, theatres, public transport, airlines and hotels) which do not produce a tangible output which can be stored. In many ways, with the advent of the information revolution, the outputs of information operations have come to more closely resemble to outputs of traditional manufacturing operations more than traditional service operations.

In general, a distinction needs to be made between services which produce a tangible output and those services which are consumed at the same time as they are produced. While both these operations fall within the overall heading of “services”, their natures are entirely different. The main difference between an information processor service and both material processors and customer processors are that an information processor’s output is not unique. That is, an information processor’s output is generally able to be copied at no additional cost. This can be contrasted to a material processor’s output such as a car or a customer processor’s output such as a haircut. Neither a car nor a haircut can be reproduced without additional inputs being used and the transformational process starting again at substantial cost. An informational output on the other hand, such as a legal document or a song can be reproduced an unlimited number of times at minimal cost and without the need for the original transformational process to be repeated (although large scale copying may require an additional transformational process eg producing CDs and DVDs).

With respect to a car manufacturing operation and an advertising agency, both produce an output which is (arguably in the case of the advertising agency) tangible (ie cars and an advertising campaign respectively) although one is clearly much more tangible than the other. However, both the manufactured car and the advertising campaign loose relevance as time progresses and as such, the intention for both operations is to transfer the finalised output from the organisation responsible for processing the input onto the customer. The longer this transfer from processing operation to ultimate customer takes, the less relevant within the marketplace their outputs become (this statement will clearly not apply in certain cases for instance prestige cars which may increase in value the longer they are stored).

The fundamental differences between a car manufacturing operation and an advertising agency have important implications on an organisation’s operations management. Both the advertising agency and car manufacturing consist of transforming resources facilities and staff. The difference is in the input of transformed resources as the car manufacturing is predominantly a material process and the advertising agency an information processor. The transformation process in operations is closely connected with the nature of its transformed input resources. Outputs from the transformation process are goods and services with the main difference being that an advertising agency provides a service while a car manufacturer produces a good. The difference in tangibility of the outputs also has an affect on storability, transportability, simultaneity, customer contact and quality.

BIBLIOGRAPHY

Slack, N., Chambers, S. & Johnston, R. (2001), Operations Management, 3rd ed., Prentice Hall, Harlow, England

The Rule of Law and the Separation of Powers

The rule of law and the separation of powers have a particularly important role to play within the UK’s unwritten constitution. They allocate and restrain power so as to ensure that the constitutional system remains accountable and limited.

It is a common observation that the UK does not have a written constitution. However, it is the existence of mechanisms such as respect for the rule of law and the operation of a (more or less) rigorous separation of powers together with devices such as constitutional conventions that allows this jurisdiction to lay claim to the existence of a constitution albeit one which is not formally recorded in a written document.

Bradley and Ewing[1] analyse the rule of law by focussing upon three aspects of its operation in contemporary society: the simple maintenance of law and order; the requirement that government be conducted according to the law; the broader concept of the rule of law as a broad political doctrine which goes beyond an analysis of the operation of particular laws and encompasses the values of a free and democratic society. The “law and order” model which holds that order is better than anarchy. The difficulty with this approach is that it is possible thereunder to characterise a military dictatorship as functioning according to the rule of law since a form of order is maintained and courts may even continue to function to resolve private disputes between citizens. However, the authors make the point[2] that “…constitutionalism and the rule of law will not thrive unless legal restraints apply to the government.”

A better approach is to examine the manner in which the courts have the ability to challenge the acts of the Executive and other public authorities. The use of judicial review to scrutinise the actions of Ministers and Government Departments is familiar. Further, in M v Home Office[3] it was even held that a Minister of the Crown could be guilty of contempt of (one of Her Majesty’s) Courts. The argument that the courts had no such powers against ministers met with a stinging rebuttal:

“[This argument] would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.”(!)

The principle has been further reinforced by the adoption of the European Convention on Human Rights which now provides a mechanism by which the very laws of this jurisdiction can be examined to ascertain their “lawfulness”.

The concept of the rule of law as a broad political doctrine has generated much debate. One the one hand, it is possible to argue that the law comprises a set of absolute values distilled from centuries of legal experience; on the other it may be argued that the rule of law is a flexible concept which has to be adjusted in accordance with the prevailing social and political circumstances of the time. Professor Joseph Raz[4] argues that the rule of law is a “political ideal which a legal system may possess to a greater or lesser degree” and that it is “just one of the virtues that a legal system may possess and by which it is to be judged”. Raz therefore does not invest the rule of law with any inherent moral authority stating expressly that it “is not to be confused with democracy, justice, equality (before the law or otherwise) human rights of any kind…” While this approach may be highly respected from a jurisprudential perspective, it is of little value in understanding the operation of the rule of law in the UK constitution. A far more preferable and workmanlike analysis is that of Friedrich von Hayek in the seminal work The Road to Serfdom[5]. He propounds the thesis that the function of the rule of law is to ensure that the government is bound in all its actions by rules fixed and announced beforehand. Such a state of affairs makes it possible to predict how the government will employ its coercive powers in a given situation and to plan one’s individual affairs on this basis. Thus the rule of law in the UK constitution is founded upon certainty: laws are democratically debated and publicly promulgated and, as a general rule, do not operate retrospectively. The UK citizen is therefore protected from the “whim of the tyrant” approach to lawmaking and has the added shield of the power of the courts (domestic and European) to review government action and the validity of the laws themselves.

In order for such a system to be maintained, especially in the absence of a written constitution to which recourse may be had in the event of alleged injustice (as in the USA), it is essential that there be a clear separation of powers between the three branches of government: Executive, Legislature and Judiciary. This separation is clear cut in the USA – the President forms the Executive, Congress is the Legislature and the same personnel cannot serve in both (save that the Vice-President chairs the Senate). Government action can be reviewed by the Supreme Court. In the UK, as might be expected given the historical evolution of the constitution as opposed to its imposition by a written document, there are certain anomalies and overlaps. By constitutional convention, the Prime Minister is the leader of the party with the majority in the House of Commons. Ministers of State are recruited for the most part from members of the Commons with a smaller number from the Lords. The system of party political “whipping” has the result that (save in the case of occasional highly-publicised rebellions) the actions of the Legislature reflect the will of the Government of the day. The Judiciary is more demonstrably independent and some would argue that this is now the more so as a result of the steps to relocate the functions of the highest appellate court in the UK from the Judicial Committee of the House of Lords to an entirely distinguishable Supreme Court. This process has generated much political and constitutional heat. It was strenuously argued that the presence of the Law Lords in the legislative assembly of the House of Lords was offensive to the concept of separation of powers. However, defenders of the status quo pointed to the fact that their Lordships by convention scrupulously refrained from debate upon issues which were likely to come before them in their judicial function. However, Lord Bingham[6] is sceptical as to the purity of the function of the judiciary:

“The essential function of the court is then to interpret the law which it infers that parliament intended to make or would have made if it had addressed the point at all. This is not as legislative role, nor is it a purely interpretive role, since the court may have to do a good deal more than elicit the meaning of what parliament has enacted.”

The most glaring anomaly in relation to separation of powers in the UK has been the figure of Lord Chancellor. He has served as a member of the Executive by sitting in Cabinet, as a member of the Legislature by acting as Speaker of the House of Lords and as head of the Judiciary. It has been observed[7] that successive Lord Chancellors have relied upon the “characteristically English argument” that eminent public figures can by definition be trusted so that a formal separation of powers is not required. This argument was propelled to new depths of disingenuousness by Lord Irvine in 1999[8] when he suggested that the presence of the Lord Chancellor straddling all three branches of government actually safeguarded separation of powers by supplying a voice in the Executive and the Legislature that was able to speak out on behalf of judicial independence.

As with the rule of law, the European influence may be argued to strengthen rather than diminish separation of powers. Lord Irvine[9] argues that:

“Incorporation [of the European Convention on Human Rights] will enhance the judges’ power to protect the individual against the abuse of power by the state. We have a high quality of judicial review in this country. It has often rightly held the executive to account and improved the quality of administrative decision-making. So the concept of judges protecting the citizen and holding the executive to account is nothing new. What is new is that the judges will be given a framework by parliament within which to interpret the law.”

Thus it may be concluded that, notwithstanding the lack of a written constitution, the UK citizen is protected from capricious and unlawful acts of government by respect for the rule of law. This should not be regarded as an abstract philosophical concept: the principle operates within this jurisdiction to ensure that acts of government are transparent and predictable. When they fall short of these standards, the fact that there is a demonstrable independence of Judiciary and Executive (as has been seen the independence of the Legislature from the Executive is more questionable) means that the actions of government can be challenged and, if necessary, overturned. These various constantly evolving mechanisms ensure that the exercise of power within the UK constitution is accountable and limited.

Bibliography

Alder, J., General Principles of Constitutional and Administrative Law, (4th Ed., 2002)

Allen, M. & Thompson, B., Cases and Materials on Constitutional and Administrative Law, (7th Ed., 2003)

Barnett, H., Constitutional and Administrative Law, (5th Ed., 2004)

Bradley, A. & Ewing, K., Constitutional and Administrative Law, (13th Ed., 2003)

1

Role of The Early Years Practitioner in Learning

Background:

General Introduction to Topic: This study is two fold; firstly it relates to a personal interest as an early years practitioner and secondly a professional resolution to understand the role of the practitioner and the influence the individual can have on children’s learning.

For effective learning within early years settings, identification of how the practitioner affects children’s learning needs to be recognised (Rodd, 2000:7). How the practitioner can influence the behaviour of others, particularly staff and children, to contribute to a creative early childhood programme. It is paramount the practitioners work collaboratively together within the same organisational goals to create a community enriching children’s personal growth and progress, which enhances the practitioners’ expectations and individual standards (Rodd, 2000:8). I feel passionate concerning the recognition of the practitioner’s role influencing on children’s learning and the factors that may contribute to this.

Within the educational institution, the power of success of the student relies on the strength of the curriculum. The content of the curriculum has to entice and engage the learner, who will respond with motivation and focus. A poor, unsuccessful curriculum, is one that is unchanged over years, and will suffer unless new educationalist are pro-active in bringing current trends into play, which is normally the case. New fresh ideas and approaches to old problems bring new life into any task, for a synthesis of theory and practice is necessary because theory without practice is dead, whilst practice without theory has no direction (Bruce, 1987).

The complexity involved in learning is discussed and covered by many, and the direction of improvement is always under investigation. In 2005, the Government announced plans to merge the Birth To Three Matters Framework and the Foundation Stage, to form a single Early Years Foundation Stage covering care, learning and development in all early years settings from birth to age five. (Literacy Trust, 2006) Can this produce the desired effect on learning. There are several different styles of learning which are examined here and aspects are highlighted, including the term Learning Power (Deakin Crick et al, 2002) which sets out to explain with extensive research, observation and experimentation that a series of unique dimensions exist.

These dimensions are Changing and learning

Creativity

Critical curiosity

Fragility of dependence

Learning relationships

Meaning and making

Strategic awareness

From these dimensions and their descriptions resulted a useful language, one for the ‘naming of something’ that fills a gap within education to provide an excellent dialog of the quality between teachers and their pupils. By successful inclusion this language could enhance the learning power of the pupil by the development of self-awareness; to encourage and produce responsibility for one’s own learning; and to ultimately improve and support all the relationships of learning and assessment.

Research for this whole study involved investigating current policy and identifying up-to-date literature. Conducting this research I discovered a gap in literature concerning the specifics in my study. Examining books, journals, articles and Internet websites for archive information relating to the practitioner’s role I discovered limited data that discusses this issue. I decided to analyse the factors that can contribute to the practitioner’s role and how it has shaped the modern early years practitioner. I was interested in how the role has developed and what shaped the 21st century practitioner, this lead to the factors that attribute to this evolvement.

Factors that may influence a Practitioners Role:

How the practitioner’s role has developed
Type of Setting; impact on practitioner’s role effecting children’s learning
Age and Experience of Practitioner; whether this has any bearing
Government Policy; the changes effecting a practitioner’s role

As my study became broader I explored factors such as the shaping of early years practitioner’s and what contributed to this, became as important as the original research question. As I researched my aims became defined, breaking down the elements to reach clear objectives for each aim.

Aims:

The principle aims of this research are:

To analyse the role of the early years practitioner in relation to children’s learning.
Explore a range of early years practitioners.
Investigate what they do and determine whether their role is the same or diverse in the context of various settings.
Examine how the profession has developed.
Analyse Government Policy to determine whether this affects the practitioners’ role.

The aims are intended to provide a broad indication of the purpose of the research, (Fitzpatrick, 1998:153). To clarify the criteria I aim to determine precise statements of intent by sub-dividing the aims into objectives, as follows.

Objectives:

To conduct in depth, semi-structured interviews with a sample of 12 practitioners who have worked for at least 2 years (this is due to practitioner’s requiring the experience in order to respond to questions relating to their role).
To conduct this research using practitioners of varying age and experience to determine whether these variables have any bearing on practitioners influence on children’s learning.
To investigate a range of settings; High Scope, Montessori and The Foundation Stage to determine whether the settings curriculum model influences learning and changes the practitioner’s role.
Investigate the changing role of the Early Years practitioner. Reflecting on historical and contemporary issues.
Reflect on Early Years policy and practitioners role.
Research Design:

Method and Methodology: To indicate the practical ways in which my research project will be organised, including an impartial appreciation of the strengths and weaknesses that may arise. Within my study I aim to put strategies into place that will minimize the disadvantages for the methodology used and to enhance the advantages (Oliver, 2004:135).

I plan to carry out a study involving 12 participants, who work within varied early years provisions; these participants must have at least two years post qualification experience. I have chosen this length of service to establish realistic expectations and feelings of individual’s. The provisions must be varied therefore I have chosen three separate settings; High/Scope, Montessori and The Foundation Stage (learning through play), within these provisions I aim to use in-depth, face-to-face interviewing of four practitioner’s conducted at their settings. This method is appropriate as it allows for flexibility (Robson, 2002:278) and freedom with responses. Using semi-structured questions including some structured questions, such as, standard factual material. An additional reason for using a qualitative method is that individual’s insight of a particular workplace can be analysed[1]. The disadvantages are numerous; one example is the reliability of the participant’s responses and the lack of standardisation that will inevitability arise with a semi-structured interview technique.

I plan to contact the selected settings asking for permission to conduct in-depth interviews explaining the reasons for the study. To explain the reasons for the research within the setting, acknowledging the interviewee’s sense of comfort in a familiar environment. It may relevant to send a sample of the questions to allow the participants to prepare.

After the interviews and data collected and transcribed, the analysis begins. The use of content analysis may be a worthwhile method for its effectiveness when examining text materials[2]. However, there are advantages and disadvantages. Advantages include; the data is fixed and allows for re-analysis and reliability checks. Disadvantages include; limited data may be difficult to assess as the participants are casual acquaintances and therefore responses may only be reflections of an individual (Robson, 2004:358).

Another method is using a quantitative strategy after gathering the data, placing gathered information into charts, graphs etc to determine the percentage of same responses. This makes research data manageable and easy to read, in essence using methodological triangulation; combining qualitative and quantitative approaches[3]. I am aware of various epistemological positions that I could adopt reflecting a different approach to the research question (Cuba et al, 1994:99), however, these methods appear appropriate and suitable to the research question.

Literature Review:

Although the study being conducted is fairly localised, this strengthens the research for the widening debate for exploration of the significance of the study (Oliver, 2004:98); for example, investigating Government policy and its impact on practitioner’s role. The literature is relevant to the project to make it easier to read I have sub-divided it into categories:

The Role of The Practitioner
Curriculum / Learning and Education
Theorists

The Role of the Practitioner

I found limited literature that dealt with the issue of the practitioner’s role in children’s education as a result I expanded my research[4]. Examining the books available (Rodd, 2000:9) suggests there is limited literature on the practical application of a practitioner’s role. This lack of information is important in relation to understanding the early childhood context and the practitioner’s role within it. The limitations in current literature need to be explored rather than omitted[5]. By this statement Rodd (2000:9) implies the role is an important one in shaping children’s learning. In agreement, Riley (2004:24) suggests, practitioner’s interaction levels are of the prime importance in children’s learning[6]. This literature signifies the importance of the practitioner’s role when involved in children’s learning. Both books detail the positive aspects of practitioner’s involvement, such as developing curriculum practice to allow spontaneous learning and free choice. Riley (2004:24) compares her findings to another study (Tizard and Hughes, 1984 as cited in Riley, 2004:24) where supporting open-ended questions provide a framework for conversation with the child. The importance of the practitioner’s role is also emphasised in (Manning-Morton et al, 2003:155) who suggest, the practitioner has a crucial role in children’s learning[7].

This application of the practitioner is quite varied including taking on the role of psychologist, for many of the assessments made with regard to entry into the present Foundation Stage is by observation.

Curriculum / Learning and Education

The second category focuses on the curriculum and the part the practitioner plays in successful implementation[8] without this a stimulating environment is not fostered and therefore hinders children’s learning. In summary the literature details the responsibility the practitioner has in shaping children’s learning in meaningful contexts that are appropriate and suitable. The authors discuss the importance of multi-professional collaboration[9]. This signifies the importance of practitioner’s working together to create an environment that enriches children’s lives. With practitioner’s that are motivational in delivering an effective learning environment supporting children to reach their full potential now that will carry on through the years, or in other words to start the pathway for Lifelong Learning. The responsibility of implementing a successful learning programme depends not just on the practitioner, nurturing minds, having a positive effect[10]. The literature supports the practitioner’s intervention for effective learning, where situations and surrounding play an important part.

The differences in our situations and surroundings that we live in are factors that influence our quality and quantity of our learning process, and this process encompasses social, moral and academic learning. (Child, 1997)

This effective learning process of Lifelong Learning, was brought into the open through employment and employers throughout the last decade of the 20th Century where changes of technology and cultural issues came about in the workplace (Crompton, Gallio, Purcell, 1996). To begin with, in 1996, the European Year of Lifelong Learning, the British government published a Policy Framework for Lifetime Learning (DfEE, 1996). Enhanced by the Fryer Report (National Advisory Group for Continuing Education and Lifelong Learning (NAGCELL) in 1997), and which surprisingly was omitted from the Dearing Report (NCIHE 1997) as sanctioned by the government with National Higher Education. Although well criticised, the report contained recommendations and targets for education and training that set out to motivate and enable learners to develop and benefit in society. Overall it outlined the aims to be sustainable, and to finally shape a democratic path. In parallel to all this was a negative that was highlighted by Elliott (1999) who stated that educationalists and the policy makers had on occasions ‘hijacked’ the phrase Lifelong Learning for other reasons. Reasons which came out from their own agendas, producing a system of their self-interest which resulted in being an obstacle and destructive to learning.

The learning process of development has been under investigation for many years. The British Cohort Study (BCS70) as far back as 1970 confirmed that a pre-school program generally increased cognitive attainment for children of 5 years of age. Yet did not prove a great difference within disadvantaged children (Osborne & Millbank, 1987). Research also found that the social adjustment and language was poor at the age of 5, and also showed that inferior reading skills were present at the age of 11. Feinstein et al (1998) showed that in education during the years of 1962-1973 the pre-school contribution made no improvement to children entering secondary school. Now some thirty years on pre-school is taken as an important part of amongst others learning the social skills to prepare for formal education.

Comparing types of provision, such as Montessori and High/Scope was by way of literature and via Internet websites[11]. Analysing these became a framework for an alternative curriculum implementation, detailing the practitioner’s role and the methods used for a successful ethos. The High/Scope regime is an “active learning” educational approach[12], the child’s interests and choices are at the heart of the programme, where the central model of learning is the ‘plan, do and review’ cycle.

The High/Scope educational approach for infant-toddler, preschool, elementary, and youth programs is a set of guiding principles and practices that adults follow as they work with and care for children and youth. These principles are intended as an “open framework” that teams of adults are free to adapt to the special needs and conditions of their group, their setting, and their community. “Active learning” — the belief that children learn best through active experiences with people, materials, events and ideas, rather than through direct teaching or sequenced exercises — is a central tenet of the High/Scope approach for all age levels.

(High/Scope, 2005)

They construct their own knowledge through interactions, planning their activities for the day in a small group with a teacher or ‘educator’. Each small group will have a ‘keyworker’ a member of staff assigned full time to them, so although they work with different adults, the children in the group have the security of a central relationship. Later in the day the whole group will review their progress, and as language is central to learning, so children describing both plans and activities to each other becomes very beneficial.

So with the whole group being involved in undertaking the first steps in the learning process, out of high-quality early years environment come the development of feelings for high self-esteem, with high-aspirations and secure feelings of self-efficiency. Believing in their own capability to start solving problems, to understand new ideas, and develop new skills. The result being, that the children feel in control of their environment and grow in confidence with their abilities. This pattern continues in focused adult/child and child/child conversations, placing the responsibility very much on the individual child for their own learning, whilst the practitioner’s offer physical, emotional, and intellectual support. So taking on Vygotsky’s notion of ‘effective instruction within the zone of proximal development’ (1993, p.36).

Summarising the Montessori method this includes education of the senses; the aim is two-fold, biological and social[13]. The Montessori environment is solely linked with natural objects for children to explore and investigate in their first seven years. The practitioner’s role is to support children within their access of objects and environment. The DfES Foundation Stage ethos focuses on learning through play and learning intentions to support children through stages of achievements. The practitioner’s role is to support children’s progress through each stage by implementing activities and opportunities to extend their learning through a play environment. Each curriculum requires the practitioner to be motivational, enthusiastic and knowledgeable in their field.

In 1998 the introduction of a National Literacy Strategy (NLS) for school years 1-6 was undertaken, and with it came considerable pressure being placed on schools to implement this program, following which most primary schools have continued to adopt it. The National Literacy Strategy (NLS) has a central core, which is the framework for teaching that covers the statutory requirements in reading and writing within the National Curriculum. The school curriculum comprises of all learning and other experiences that each school will plan for its pupils, and the National Curriculum is an important element of that school curriculum. The NLS provides a framework of pre-specified objectives that revolve around: text, sentence and word level work which are delivered via a daily structured hour long session, which is termed ‘Literacy Hour’. Following this introduction Primary teachers are now urged to support and conform with this prescribed teaching pattern, in fact practitioner’s are now being told not only what to teach, but also how to teach it.

‘Education influences and reflects the values of society, and the kind of society we want to be. It is important therefore, to recognize a broad set of common values and purposes that underpin the school curriculum and the work in schools.

If schools are to respond effectively to those values and purposes, they need to work in collaboration with families and the local community, including church and voluntary groups, local agencies and business, in seeking to achieve two broad aims through the curriculum. These aims provide an essential context within which schools develop their own curriculum, and are outlined as follows:

Firstly the school curriculum should aim to provide opportunities for all pupils to learn and achieve.

Secondly the school curriculum should aim to promote pupil’s spiritual, moral, social and cultural development and prepare all pupils for the opportunities, responsibilities and experiences of life.’

The National Curriculum, Key Stages 1 & 2. 1999 DfEE

Despite all this, a report undertaken by the Association of Head Teachers [2003] claims there is a mounting concern amongst teachers about the effects of this Literacy strategy. Arguing that formal teaching as prescribed through the Literacy Hour, is developmentally inappropriate for many 6 year olds, and therefore recommends that the principles of the Foundation Stage be extended to cover all children aged 3-7 years.

In enhancing this thinking, going back to 1996 where the Department for Educational Studies (DfES) funded the undertaking of Effective Provision of Pre-School Education a longitudinal study that was for children of 3 to 7 years of age. Where it majored on pre-school through into primary assessing from a cross-section of social backgrounds. This complimented another undertaking in Findings from the Early Primary Years (EPPE Summary 2004) that collected data from children, their parents, their home environment and the pre-school they attended. All of which went on to prove that cognitive and social effects were positive for the children going into primary school.

It was found that parent’s education and social class remained as predictors of intellectual and social development, and that very long periods of pre-school were connected with anti-social behavioural problems entering primary school and through to the end of Key Stage 1. This fact was attributed to the presence of non-parental childcare before three years of age. The education level of the child’s mother was seen to be a factor in the child’s performance. Overall, it reported that the attainment reached in reading and math’s from an effective, high quality pre-school attendance, proved a positive impact which was not depleted by the end of Key Stage 1, and that attendance before the age of 3 was very positive towards the child’s attainment.

By continual research key findings within the EPPE Summary of 2004 over the pre-school period included that disadvantaged children may benefit appreciably from good quality pre-school experience, especially when they are with a mixture of children from different backgrounds. It also went on to show that overall, disadvantaged children have a tendency to only attend pre-school for short periods of time compared to those from more advantaged groups. From this result recommendations were made: i) To develop and encourage more episodes of ‘sustained shared thinking’ with the children. Use of freely chosen play activities provides the best opportunities to extend children’s thinking. ii) Continually work towards an equal balance of child and adult initiated activity. iii) Develop staff to have both the knowledge and understanding of child development and the curriculum.

By way of a pilot scheme, in 1998 parts of England by the National Literacy Strategy (NLS), which was a direct result of nationwide poverty implications in 1966, all infant and primary schools were expected to teach English within what was termed the Literacy Hour. The hour was divided into segments to allow teaching as a whole class, as groups or individuals, with the focus for each segment also prescribed in detail: children being taught reading and writing at whole text, sentence or word level. Teaching objectives had to be included in this daily Literacy Hour with the class. The format is dictated to being the same for Year 1 through to Year 6.

Reaction from teachers, many unprepared to teach this due to lack of time, were concerned and uneasy over several issues, and some reported that time spent in other curriculum areas were affected. A perceived lack of flexibility about the Literacy Hour was commented on unfavourably, with fears voiced of the possible negative effect resulting from six years of children being taught in the same way (Anderson & Urquhart, 2000)

The feedback on this, Hourwatch, was undertaken from the autumn of 1998 through to the summer of 1999, from a cross-section in Year 1 and Year 2 at Infant School, and reception class and year 6 in Primary School. The feedback from teachers was not favourable. Planning of group activities took a considerable extra time to prepare. Overall the framework objectives for the hour resulted in a lack of coherence, making implementation time consuming, out of all proportion to its share of the curriculum, and generally uninspiring. One such response from an experienced teacher, remarked that although Learning Hour had some good points, “it was too rigid a structure, takes too much time to plan, too analytical, not matched to children’s current level of experience and skill. It gets boring following the same format day in day out, it does not provide enough opportunities for creative and extended writing, and it results in too much unfinished work” (Anderson & Urquhart, 2000) Overall the organizational and bureaucratic demands were overwhelming the educational value.

In 2000 the Government in the UK introduced a revised National Curriculum (Curriculum 2000) and the Foundation Stage that was for the 3 to 5 year olds, giving this period in the child’s education a distinct identity and attention. Curriculum 2000 emphasized inclusion, aiming to secure learners participation and ensure appropriate opportunities for them to achieve, and offered flexibility within for schools to develop their own normal curriculum. It offered a less prescriptive approach, in which flexible allocating of time for required subjects allowed them not to taught each week, term or year, therefore allowing choice of method and the maximising of teaching and learning.

A study of the transition from infant to Primary in England: from Foundation Stage to Key Stage 1 was carried out in 2005 (Sanders et al, 2005), where it was discovered the biggest challenge to children being the move from play-based approach in the Foundation Stage to a more structured curriculum in Key Stage 1. It also noted that the Literacy Hour had proved challenging as it was difficult for young children to sit still and listen to their teacher.

The ensuring of stability, has been promised and undertaken by the Government for this transition period, in understanding and support for staff training, the child’s learning and guidance for parents (DfES, 2003).

Researching journals on the subject was also limited with only one journal; Early Childhood Research Quarterly. This research[14] discusses the aspect of practitioner behaviours in the environment and the practitioners’ application, detailing the importance of collaboration and an understanding of curriculum and learning. Reading the journal article shows a support for my research in as much that the role of the practitioner is vital in providing an effective learning environment for children to progress and grow.

In respect to how children progress and grow, a large portion learn, construct knowledge and develop skills, in today’s world of computers and computer games. The act of play for a young child is seen as being far more important, and in the past there have been successful arguments in the fore and against the time allocated for play in the early important years of a child’s education. Parents and school administrators always demand results, and yet question the value of a child playing. Educators and child development specialists endorse play as being the best way for young children to learn the ultimate curriculum for the social, physical and cognitive advancement needed to set a solid foundation for later school and life success in our increasingly complex and technological world.

The importance of play in a child’s development is shown to have various kinds of concepts (Wardle, 2000), each having their own strengths:

Motor/physical play – critical for the development of physical strength, and to establish a fitness regime against heath problems through being overweight in latter years.
Social play – interacting with others builds skills and underlines important social rules, including give and take, co-operation and sharing. All go towards moral reasoning and developing a mature sense of values.
Constructive play – the manipulation of the environment to experiment, build and create, resulting in accomplishment that empowers them with control of their environment.
Fantasy play – experimentation of language and emotions in an abstract world, where young children can stretch imaginations in a risk-free environment. This area of abstract time is believed to be so important in our growing technological society.
Games with rules – vitally important in a child’s development, to learn and understand that situations cannot exist without everyone adhering to the same set of rules. This concept teaches children a critically important concept, in that the game of life has rules (laws) that we all must follow to function productively (Wardle, 1987).

Government policy reflects the importance of the practitioner’s role with learning and education in early years settings. The proposed Childcare Bill introduced to Parliament on 8th November 2005 supported a link between Foundation Stage (3-5 years), Every Child Matters, Birth to Three Framework and OFSTED National Childcare Standards for nurseries; combining these four documents[15]. By placing early childhood provision on a statutory footing will assure practitioners’ of the Government’s commitment to improving early years provision. The Government recognise for the youngest children the distinction between childcare and education is indistinguishable. This supports my research by the Government recognising the important role the practitioner has in the welfare of children, in education and care.

In the UK this problem is being addressed by the Government taking on a ten-year strategy for childcare, published in 2004, which is now subject to Parliamentary Approval in 2006 (Education & Skills, 2006). It is the Government’s response to a fundamental challenge facing Britain in the need to ensure available, affordable, and high quality childcare in the 21st Century. More women are going to work than ever before, they choose to work for increased family income that can improve lifestyle (out of poverty) and improve their children’s life chances. With the emergence of this new Childcare Bill the practitioner has to ensure their role positively shapes children’s learning in meaningful contexts.

Now in 2006 discussion and assessment is well underway for the Early Years Foundation Stage that will start in 2008. In 2005, the Government announced plans to merge the Birth To Three Matters Framework and the Foundation Stage, to form a single Early Years Foundation Stage covering care, learning and development in all early years settings from birth to age five.

Are the lessons that have been learnt by the government ministers over the years now going to lay correct foundations for the practitioners to deal with? As childhood is not merely a pe

Remedial and Institutional Constructive Trusts

Title: “The remedial constructive trust has taken root in the United States and Canada: it is unlikely to do so in England” Millett LJ in Restitution and Constructive Trusts 1998 114 LQR p399.

Explain the differences between remedial and institutional constructive trusts and the advantages and disadvantages of each approach. Discuss whether judges in England and Wales are likely to adopt the remedial system.

INTRODUCTION

A definition of a trust, reflected in case law, suggests that a person with responsibility for property has an obligation in accordance with principles of equity to exhibit beneficence[1] towards any beneficiaries, any of whom might enforce this obligation[2]. The concept of the constructive trust is not overwhelmingly supported, with Hayton categorising it ““a fiction which provides a useful remedy when no remedy is available in contract or in tort[3]. A constructive trust may be either institutional or remedial, although only institutional constructive trusts are acceptable practice in the UK at the present time. According to Halsbury “the remedial constructive trust…is not in reality a trust at all, but merely a remedial mechanism by which equity gives relief for fraud[4].

The distinction between constructive trusts raise a number of issues that are of particular relevance when considering whether the law in England and Wales is likely to adopt the remedial system. It must be noted, however, that, whilst the importance of both proprietary estoppel[5] and Pallant v Morgan[6] equity are acknowledged as relevant to a discussion on constructive trusts, their applications are specific. Accordingly, due to constraints on space, their inclusion in this particular essay have been omitted[7].

DISCUSSION

Whilst law in other jurisdictions needs to resort to such measures as the remedial system, law in the UK currently relies on the Statutes of Limitation[8], within which remedial constructive trusts may be considered to be related to the Limitation Act 1980[9]. The specific distinction between legal and equitable ownership originated through the historical significance of common law and the law of equity, as established through the Courts of Chancery. It is readily acknowledged that a correlation exists between constructive trusts and the doctrine of equity, with effect from the date in which circumstances dictated a need for such intervention, a factor noted in Westdeutsche Bank[10] by Browne-Wilkinson, LJ who observed that “A remedial constructive trust……is a judicial remedy giving rise to an enforceable equitable obligation…[11]

Institutional Constructive Trust

There have been a number of significant cases heard, where the courts have ruled that institutional constructive trusts will prevail[12]. An institutional constructive trust might be invoked in such cases as domestic disputes involving property, breaches within a fiduciary relationship, contracts relating to sales of land, and certain situations relating to commercial insolvency. Case law established ‘in law and in equity that land could be the subject of ownership[13], with a further recognition that ‘the person owning either type of estate has a right of property’ according to Lord Browne-Wilkinson[14], established through statute in the Law of Property Act 1925. Freehold land, or land held in fee simple, relates to land held in trust to the Crown, with the owners being beneficiaries, or trustees, or land that is held in cestuis que trust which is revealed as an equitable estate.

The requirement for a formal record of equitable entitlement to the transfer of land in accordance with the Law of Property Act 1925 53 (2)[15] reveals a situation inconsistent with the ethos of remedial trusts. Shares in property can be transferred from the owner of a property to bestow the gift of beneficial ownership on another person through the conveyancing procedure of legal transfer by deed according to the Law of Property Act 1925, section 52 (1). Conversely, where full consideration has not been paid when land is transferred an inference of fact would result, as clarified in Subsection 60(3) of the Law of Property Act 1925.

Remedial Constructive Trusts

Pascoe[16] notes an apparent lack of consensus as to whether remedial constructive trusts are based on an enforcement of proprietary rights or to avoid unconscionable conduct, but suggests it ‘is imposed by equity regardless of actual or presumed agreement or intention[17] in order for the courts to implement a measure of restitution[18]. Certain situations require a remedy within the law that is particularly suitable for a specific set of circumstances. This is determined at the discretion of the court and is realised in the imposition of a remedial constructive trust, characterised by the particular facet that no trust existed prior to the intervention of the court. An interesting development in the definition attached to constructive trusts was suggested in Barnes v Addy[19] in which Lord Selborne, LC introduced the distinction between a duty owed by directors and duty owed by ‘non-fiduciary strangers’, referring to this concept as ‘the two limbs of Barnes v Addy’. More recently this referent has been recognised as ‘recipient liability’[20] and ‘accessory liability’[21].

Various jurisdictions around the world acknowledge a distinct emphasis between institutional constructive trusts and remedial constructive trusts, based on the common law precepts of unjust enrichment. The constructive trust would then be recognised as a means of restitution[22], a remedy available for the courts to resort to when other methods of restitution are inappropriate. Often considered synonymous with remedial constructive trusts is the case of Polly Peck International plc (in admin) (No 2)[23]. Referring to additional rights of restitution that might be accorded the plaintiff in respect of legitimate rights to property the Court of Appeal in England made reference to the decision in the Supreme Court in Canada[24].

Different Jurisdictions

Amongst the different jurisdictions who habitually utilise the remedial approach, Australia[25] generally adheres to a traditional approach characterised by a link between claimant and the property at dispute, whilst acknowledging the distinction between recipient and accessory[26] liabilities. Accordingly, remedies might be applied ‘in personam’ rather than ‘in rem’. According to Fardell and Fulton[27], the constructive trust has become an important remedy within the courts in New Zealand, fully utilising the concept of remedial constructive trusts in any situation in which a defendant might have prejudiced a plaintiff’s claim to equity as a matter of principle[28]. This particular application of the remedial system has been criticised by the judiciary in Australia as they perceive it represents “a medium for the indulgence of idiosyncratic notions of justice and fairness[29]. However, at the New Zealand Court of Appeal Tipping, J concurred with the Australian opinion, although using different reasoning[30].

There have, however, been instances whereby a more controversial approach has been taken, often utilised in the US[31] although, on occasion, in other jurisdictions such as New Zealand in the case of Re Liggett[32] based, as it was, on the decision in the US case of Chase Manhattan Bank. Since then, however, both the Privy Council[33] and the House of Lords[34] have overruled that decision[35]. The law relating to constructive trusts has recently changed in Canada following the Supreme Court’s ruling in the cases of Soulos v. Korkontzilas[36]. Prior to this, such cases as Pettkus v Bekker[37], Sorochan v Sorochan[38] and Rosenfeldt v Olson[39] were the definitive referents in relation to remedies imposed by the courts to prevent the perpetuation of injustices within the specific categories associated with benefiting through unjust enrichment[40]. The Supreme Court focused on the ethos of ‘good conscience’ in their decision when ruling on Soulos v. Korkontzilas[41]. They decided that constructive trusts needed to be imposed to maintain certain standards[42], with four conditions introduced, each of which must present if a constructive trust was to be implemented[43]. Subsequently, these conditions have been applied to all cases relating to constructive trusts heard in Canada’s Supreme Court.

CONCLUSION

It has been suggested that every resulting trust is realised through the transfer of property in a situation where benefit to the recipient was not the intended option, the consequence of which is a presumption of resulting trust. This significance is recognised in the doctrine of equity in terms of recognition of the terms of endowment. In the UK it is in this particular situation that the inherent importance between constructive and resulting trusts lie. Furthermore, it is this particular situation in which other jurisdictions more often introduce the doctrine of remedial trusts. It appears to be accepted by the majority of commentators that, for a resulting trust to be formed, actual assets must be present in terms of identifiable property, the remedy of which may be found in common law.

Despite Millett LJ being of the opinion that the remedial approach is unlikely to take root in England[44], it has been acknowledged in the Court of Appeal[45], the Privy Council[46] and in the House of Lords[47], in obiter dicta, that a possibility might exist for the future incorporation of remedial constructive trusts into UK legislation. This controversy has, by no means been resolved and, at some point will undoubtedly become incorporated into UK legislation, either in its present format, or modified to enable “…an aggrieved party to obtain restitution[48] through the correlation that exists between constructive trusts and the doctrine of equity which is represented through the concept of morality and obligations, with “the benefit of an obligation [being] so treated that it has come to look rather like a true proprietary right[49].

Total Word Count [excluding footnotes and bibliography]: 1,496 words

BIBLIOGRAPHY

BOOKS:

Cope, M (1992): Constructive Trusts. Sweet and Maxwell

Maitland, F W (1936): Equity. Cambridge: Cambridge University Press. Page 115

Underhill and Hayton (1995): Law of Trusts and Trustees [15th ed]. London: Butterworth: Page 1

Wilkie, Margaret; Luxton, Peter; and Malcolm, Rosalind (1998): Blackstone’s Land Law. London: Blackstone Press, Page 111

HALSBURY’S LAWS Available Online from: Butterworth’s Direct Search facilities. Access via Athens Gateway: http://www.butterworths.com/butterworths.asp

Vol 16 (2000 Reissue) Para 1072

Vol 48 (2000 Reissue) Paras 401 – 403: former Court of Chancery

Vol 48 (2000 Reissue) Para 501.

Vol 48 (2000 Reissue) Para 592

ARTICLES:

Austin, RP (1988): The Melting Down of the Remedial Trust. 11 NSWLJ 66. Available from: Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law & Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005]

Bryan, M (1995): Cleaning up after Breaches of Fiduciary Duty – the Liability of Banks and other Financial Institutions as Constructive Trustees. In 7 Bond Law Review 67. Available in: Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law & Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005]

Dodds, J (1988): The New Constructive Trust: An Analysis of its Nature and Scope. 16 MULR 482. In Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law & Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005]

Fardell, R and Fulton, K (1991): Constructive Trusts-A New Era. NZJL: 90. In Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law & Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005]

Hayton, DJ (1985): Personal Accountability of Strangers as Constructive Trustees. 27 Malaya LR 313,314: Singapore Journal of Legal Studies.

Access via ATHENS Gateway

McKendrick, E (1994): Unascertained Goods: Ownership and Obligation Distinguished. 110 LQR 509 – 513

Millett LJ (1998): Restitution and Constructive Trusts 114 LQR p. 399

O’Connor, P (1996): Happy Partners or Strange Bedfellows: the Blending of Remedial and Institutional Features in the Evolving Constructive Trust 30 MULR 735. In Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law & Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005]

ONLINE RESOURCES

Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law & Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005]

TABLE OF CASES:

Baden Delvaux and Lecuit v Societe Generale [1993] 1 WLR at 509, 575

Bannister v Bannister [1948] 2 All ER 133

Banner Homes Group plc v Luff Developments Ltd [2000] Ch 372, CA

Barnes v Addy (1874) LR 9 Ch App 244

Beatty v Guggenheim Exploration Co 225 NY 380 at 386 [1919]

Chase Manhattan Bank NA v Israel British Bank (London) Ltd [1981] Ch 105

Cia de Seguros Imperio (a body corporate) v Heath (REBX) Ltd (formerly CE Heath & Co (North America) Ltd) [2000] 2 All ER (Comm) 787; [2001] 1 WLR 112, CA

Daly v The Sydney Stock Exchange Ltd (1986) 160 CLR 371

Fortex Group Ltd (In Rec and Liq) v MacIntoshes [1994] 3 WLR 199; [1998] 3 NZLR 171.

Hussey v Palmer [1972] 3 All ER 70 (CA)

Linter Group Ltd v Goldberg (1986) 160 CLR 371

Mabo v Queensland (No 2) [1992] 175 CLR 1, High Court of Australia

Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 and [1989] 3 All ER 14 CA

Muschinki v Dodds (1985) 160 CLR 583 at 614

Pallant v Morgan [1953] Ch 43, and [1952] 2 All ER 951

Paragon Finance plc v DB Thakerar & Co (a firm) [1999] 1 All ER 400, CA

Pettkus v Bekker [1980] 19 RFL (2d) 165

Polly Peck International plc (in admin) (No 2) [1998] 3 All ER 812 at 825-826

Re Goldcorp Exchange Ltd

Re Goldcorp Exchange Ltd (in receivership) [1995] 1 AC 74; [1994] 3 WLR 199 and [1994] 2 All ER 606 PC

Re Liggett v Kingston [1993] 1 NZLR 257

Re Polly Peck International plc (in administration) (No 2) [1998] 3 All ER 812, and [1998] 2 BCLC 185, CA

Re Sharpe [1980] 1 WLR 219

Rosenfeldt v Olson 1 BCLR (2d) 108, [1986] 3 WWR 403, 25 DLR (4th) 472 (CA).

Sorochan v Sorochan [1986] 2 SCR 39

Soulos v Korkontzilas [1997] S.C.J. No. 52

Taylor v Davies [1920] AC 636, PC

Tinsley v Milligan [1993] 3 WLR 126; [ 1994] 1 A.C. 340, 371

Westdeutsche Landesbank Girozentrale v. Islington London BC [ 1994] 4 All E.R. 890, 962, CA.; varied [ 1996] 2 All E.R. 961, HL; [ 1996] 2 All E.R. 961, 990, H.L; [1996] AC 669 at 714-415

1

Analysis of the Postal Rule

The purpose of this brief is to examine and evaluate the effectiveness and relevance of the Postal rule in the modern context of contract law. Generally, the Postal rule is used to resolve disputes where there is no formal communication received, or it is delayed by post. It is a set of principles that allow the courts to establish that a contract has or has not been formed at a particular point in time, despite the absence of the offeror receiving any formal communication of an offer. Specifically, this brief sets out to examine the aged precedents that the Postal rule relies upon to survive, and analyse them in conjunction with the changing face of communication on a global scale. Finally, it will attempt to recommend a conclusion based upon this discussion, and assess a way forward for the UK jurisdiction, given the increase of use of electronic communication, and the embracing of such means in the community worldwide.

The postal rule is an alternative means of accepting an offer. It is a set of rules that govern whenever communication of acceptance has been sent by post, and are used to resolve any disputes where there is doubt as to the effectiveness of the communication of the offer. The general rule that has been adopted under English law in regards to acceptance by post is given by the case of Adams v Lindsell.[1] This case involved the defendants offering to sell wool to the plaintiffs, and asking for a reply by post. The plaintiffs’ letter was delayed in the post, and hence the defendants sold the wool to someone else, believing that the plaintiffs were no longer interested in the deal. However, the court heard that the plaintiffs had sent a letter of reply on the same day they received the offer, and hence the court held that there was an enforceable contract. The principle behind this decision was that a communication of acceptance of an offer becomes valid once it is posted by the offeree, not when it is received and opened by the offeror. This principle allows for a party to still have rights to an enforceable contract even where the procedural matters are delayed beyond their control. It effectively exonerates the offeree from any liability once a letter of acceptance has been posted to the offeror, and places the onus on the offeror to satisfy the procedural requirements of the contract. As was seen in Adams v Lindsell if the offeror does not wait for a reasonable period of time for confirmation, and subsequently disposes of the goods or services, then they may be liable if it so happens that the confirmation arrives at a later stage.

Justifications for the Postal Rule

A number of justifications for the postal rule of Adams v Lindsell are discussed by Ewan McKendrick in his book, ‘Contract Law’. Firstly, it is argued that the Post Office acts as an agent of the offeree, and hence once the letter is received by an agent, this constitutes valid communication of acceptance.[2] McKendrick says that this is open to debate, given that the Post Office clearly has no express authority to contract on behalf of the offeree.[3] Secondly, it is argued that given the offeror has chosen to initiate negotiations by post, then the offeror must bear all responsibility associated with the postage of documents relating to the contract. However, this justification has been brought into question by the decision in Henthorn v Fraser,[4] where it was held that the postal rule only applies where it is reasonable to use the post. As McKendrick discusses, the issue of what exactly constitutes a reasonable situation to use the post is questionable, for example, where two parties live a significant distance from one another it may be reasonable to use the post, however it is not necessary to initiate negotiations through the post.[5] It would, therefore, be unlikely that such a justification could be relied upon; given there is uncertainty as to when it becomes reasonable to use the post. A more solid justification is that an offeree should be able to rely upon the fact that he or she has posted the acceptance, and hence has satisfied his or her procedural duties under the rules governing the formation of a contract. McKendrick says that a better way of viewing the postal rule in light of this justification is that, once the letter is posted, the offeror cannot revoke his offer, rather than the acceptance taking effect once the letter has been sent.[6] It places the onus squarely on the offeror, given that the offeree has complied with all reasonable requests required of him in accepting the offer. However, the general rule discussed in Adams was further elaborated upon and entrenched in the later case of Household Fire and Carriage Accident Insurance Co Ltd v Grant.[7] In this case, it was held that an acceptance of offer communicated by post becomes valid once it has been posted by the offeree, not when it is received and opened by the offeror. This further strengthens the justification that it is the responsibility of the offeror to allow for any delays or mishandlings by the Post Office in regards to any contractual negotiations conducted by post.

Adherence to Proper Postal Procedure

The Postal rule has been further refined since its inception by the English courts. In the case of Re London and Northern Bank,[8] it was held that a postal acceptance was not valid, as proper postal procedures were not adhered to. It emerged in the facts of the case that a party had allowed a postman to take a letter of acceptance (bundled with other letters) when he offered to post them for the party. The case affirmed the notion that an acceptance is deemed to be enforceable from the moment it is posted,[9] however it was discovered that postmen are prohibited, under the regulations of the Post Office, from taking charge of any post. This meant that the postman was not authorised to act as an agent of the Post Office in this regard, given he was specifically prohibited from handling any post that he was not charged with delivering. Therefore, the court held that the postal acceptance was not pasted correctly, and hence could not have been said to have complied with the implied terms of the Postal rule. Given that this case was decided over a century ago, it raises questions in the modern context. For example, can the postal rule extend to private courier services, where a document is picked up by a courier? One would imagine so, given that a courier acts as an agent of the courier service, which would be consistent with the principles set out in Re London and Northern Bank[10] and Harris Case,[11] regarding agency principles involving the Post Office.

Limitations on the Postal Rule
Instantaneous Communication

While the Postal rule has been refined over the last century by the courts, it is important to consider the consequences such an aged doctrine can have in the modern context. Especially in current times, where a large majority of communication takes place by telephone, email, facsimile and other ‘instantaneous’ means, it is important to consider what effects (if any) the Postal rule can have on these methods of communication. The leading authority on this issue is the case of Entores v Miles Far East Corporation,[12] where an acceptance of offer was communicated by telex. It was held by the court that the Postal rule did not apply to instantaneous forms of communication, and as such the contract was formed at the time the communication was received by the plaintiffs, not from the time it was communicated by the defendants. This decision was subsequently affirmed by the case of Brinkibon Ltd v Stahag-Stahl und Stahlwarenhandelsgesellschaft mbH GmbH,[13] where the facts between the two cases were similar in that an acceptance was communicated by telex, and as such the decision was the same. Again, when this is applied to the modern context, it would appear that means of communication, such as email, fax, telephone and similar are exempt from the Postal rule, and as such the contract is deemed to be formed with these means when the communication reaches the offeror, and not pursuant to the Postal rules.

Reasonableness

It has been established at English common law that it must be ‘reasonable’ for the offeror to accept that communication by post. The leading authority in this case is that of Henthorn v Fraser,[14] which involved the plaintiff handing the defendant a written offer to sell property to him, with which the defendant had fourteen days to reply. The plaintiff sought to revoke their offer by writing to the defendant, however this revocation arrived after the defendant had already posted their letter of acceptance. It was held by the court that there was still a valid contract as, given that the two parties resided in different and distant towns, it would have been reasonable to assume that the defendant was going to reply to the offer by post, hence it would have been in comprehension of the parties that the Postal rule would apply at the formation of the contract. In terms of practically applying this to the modern context, it would directly relate to any negotiations that were communicated by email, for example. If a negotiation was commenced by email, then it would be reasonable to assume that the acceptance would be replied by email. Modern technology would appear to not allow for a reasonable comprehension of the use of post, unless some form of the negotiation was conducted by post, or the offeror specifically requested the acceptance be communicated by post. While a great deal of communication still takes place by post in modern times, it would appear that the need for the use of post has decreased over the course of the last century, when the Postal rule was introduced, due to the increase in alternative (and instantaneous) means of communication available to modern individuals and businesses. This means that the reasonableness factor may prevent the Postal rule from taking effect in many contractual negotiations, given that it may not be reasonable (or necessary) to use the post in many circumstances.

Displacement by the Offeror

There are circumstances that exist in English common law where an offeror can ‘contract out’ of the application of the Postal rule, thus limiting or nullifying its effect on the communication of acceptance issue of the contract. For example, it was held in the case of Holwell Securities v Hughes[15] that the purpose of clause 2 of the contract in that case was to exclude the operation of the Postal rule. This was so even though the clause provided for notice in writing to be given, however it was the opinion of the court that this was to merely ascertain that a communication was required to the defendant, and posting of the letter was not necessary to constitute notice. This essentially ties in with the reasonableness argument, in the sense that it was not reasonable to assume that a reply would come by post, given that the party was only required to give notice in writing, and not post a letter of acceptance. What this example shows is that, while the Postal rule plays a fundamental role in cases where it has been held that it applies, it is not a necessary part of the formation of any contract by post. There are ways for parties to avoid using the Postal rule where the express or implied terms of the contract give leave to do so. This is further enhanced by the decision in Household Fire and Carriage Accident Insurance Co v Grant,[16] which also dealt with the ability of the offeror to displace the postal rule by way of ‘contracting around’ the use of such principles. The evidence in previous discussions have shown that the Postal rule can be an effective means of resolving a contractual dispute regarding acceptance, however it has been shown that cases do exist where the Postal rule does not apply, and hence does not form a necessary part of every written contract negotiated by post. This raises questions as to the protection of the offeree in situations where he or she has complied with all reasonable requests of the offeror in accepting the offer. Perhaps this needs to be addressed in future decisions or legislation, given the commercial and highly litigious tendencies that modern society has developed.

Specification of Mode of Communication of Acceptance

This limitation of the Postal rule does draw some similarities to the displacement limitation discussed above. However, rather than ‘contracting around’ the use of the Postal rule on implied terms, there are ways which a party can avoid the use of the rule on the basis of express terms included in the contract. The leading general authority on such a principle is the case of Holwell Securities Ltd v Hughes,[17] where it was suggested the Postal rule should not apply where it created “manifest inconvenience and absurdity”. Obviously, forcing the Postal rules upon a contract where they would clearly not apply, such as a contract where email or fax transmissions are used in the negotiations would create such absurdity, and hence the Hughes case recommends it not be applied in these circumstances. Other cases are used in this area to reinforce and specialise the principle laid down in Hughes. Most notably, the case of Tinn v Hoffman & Co asked for acceptance to be given by ‘return of post’, which was held to mean “telegram or by verbal message, or by any means not later than a letter written and sent by return of post”.[18] Obviously if the offeree in this case had chosen to reply by return of post, then Postal rules would have applied; however the enforcement of Postal rules in the event of a communication of acceptance by other, quicker means would create an ‘absurdity’ which the Hughes case expressly prohibits at common law. The view of Honeyman J in the Tinn case was later affirmed by Buckley J in Manchester Diocesan Council for Education v Commercial and General Investments Ltd, where it was held that an offer may be deemed to be accepted where the offeree does not adhere to the prescribed method of acceptance, provided that the use of such a method in no more disadvantageous to either party than it would be to use the prescribed method.[19] This impacts on the use of the postal rules because of the fact that it gives the offeree the ability to avoid being subject to them by using an alternative form of communication that is quicker than sending a letter by post (for example, email). It further shows that modern society is leaning towards not requiring the Postal rule as much as in times where post was a primary method of communication, which is when the Postal rule is introduced. The Postal rule appears not to cater for the more modern advances in technology that the last few decades have seen, and hence adds further weight to the argument that the Postal rule is an outdated doctrine, in need of some serious overhaul in order to be effective once more.

In the decades following the introduction of the Postal rule, many advances in technology were made that changed the way the people of the world were able to communicate with one another. First came the telex machine: a slow form of communication by today’s standards however, by comparison to the posting of a letter, it allowed the global community to communicate with one another virtually instantaneously. Next was the fax machine, an improvement on the telex, which allowed whole documents to be copied and transmitted long distances, as opposed to the typewriter-style of the telex machine. Now, in the modern times, we have seen the advent of technology such as e-commerce and email, which effectively links the world on an instantaneous basis virtually 24 hours a day. It has created a truly global market. But how do we regulate contracts in such an advanced technological world with, what seem to be, outdated and outmoded legal principles? The basic premise of Entores v Miles Far East Corporation Ltd still seems to give us basic guidance on the issue, in that the communication of acceptance must still be in such a form that is clear, concise and easily understandable to the offeror.[20] If anything, it would appear that technology has made the task of accepting an offer easier, both for the offeree and the law. Methods such as email have allowed for an offeree to communicate his or her acceptance of an offer by swift and efficient means, and in a way that benefits both parties due to the time and expense associated with posting a letter now seemingly made redundant. E-commerce has given rise to a new form of entering into a contract, and the use of electronic signatures, which are now recognised in English statutory law.[21] This allows for the acceptance of an electronic transaction to have the same effect as a hand-written signature, which allows for Internet contracting to boom and the global market to flourish. Additionally, the use of email to communicate the acceptance of an offer is also covered by statute,[22] which provides that certain information must be provided to the offeree before the contract is concluded, which serves to protect unsuspecting parties from being unduly entered into contractual arrangements. It also makes it easier to distinguish where a contract has been concluded, thus alleviating some of the confusion associated with such a new technology. However, by continuing to consider the Entores v Miles Far East Corporation[23] decision in conjunction with the case of Pretty Pictures v Quixote Films Ltd,[24] it would appear that the responsibility for getting the message through to the destination now lies with the sender, given that a sender now has an idea that the communication may not have sent properly.

Given the advances in technology, it is also important to have some idea as to the time of acceptance guidelines that would now apply. Under the Postal rules, it would be reasonable to assume that a posted letter would arrive at the offeror’s premises during a reasonable hour, if not business hours. However, given that technology such as email and faxes can be accessed 24 hours a day, 7 days a week, then it is important to understand what the law considers as a ‘reasonable time’ for such a communication to reach the offeror. If, for example, a person was to send an email in order to communicate and acceptance, then it would be reasonable to assume that a person monitors their business email during business hours. This could lead to a delay in the offeror reading the acceptance until the following business day, if it was sent after hours. This would turn an instantaneous communication into a non-instantaneous form, despite all the best efforts of the offeree. The leading authority on this principle is Brinkibon Ltd v Stahag-Stahl und Stahlwarenhandelsgesellschaft mbH GmbH,[25] and was further enforced by certain elements of The Brimnes[26] case. An offeree must be mindful of such possibilities, and must not take advantage of the highly instantaneous forms of communication that exist today, as they can easily cause delays and problems in the event of an acceptance not being communicated to the offeror properly.

European Directive on Electronic Commerce

The advent of e-commerce on a global scale had lead to the need for the laws of various countries to allow enough flexibility for the incorporation of electronic contracts, and electronic signatures. The idea of electronically signing a document has already been discussed in this brief at a statutory level in England, but what of the broad concept of electronic trade? The European Union has adopted the E-Commerce Directive,[27] which sets out certain requirements for Member States to comply with in order for the concept of electronic commerce to function effectively. Most significantly, the Directive requires that all Member States allow for the completion of contractual documents by electronic means, and thus have the required systematic arrangements in place in order to comply.[28] This demonstrates the importance of e-commerce to the European common market, allowing trade and other contracts to be completed in an easier, time-saving and more user friendly form. It would appear that England has already taken its first steps towards the embracing of electronic contracts, with legislation giving Ministers the authority to review any legislation that requires contractual documents to be in writing, and to amend them through secondary legislation “in such a manner as [the Minister] may think fit for the purpose of authorising or facilitating the use of electronic communications or electronic storage”.[29] This reflects an acknowledgment by the Government that electronic commerce is the way of the future, and thus the need to update an otherwise conservative and outdated system to adapt to some quite radical changes in the way contracts, and business in general, are done.

In a practical sense, United Kingdom legislation is showing a move towards the disuse of hardcopy contractual documents, in light of electronic means as given by the European Directive. The most classic example, perhaps, of a transaction requiring a hardcopy contractual document would be a contract for the conveyancing of property or land, which derives its requirements from sections 52 and 54 of the Law of Property Act 1924. These requirements were further amended by the Law of Property (Miscellaneous Provisions) Act 1989, such as the requirement for a proper signature, delivery and making clear that fact that the document intends to be a deed.[30] Normally this would require the use of a deed in order for the transaction to have complied with the legislative requirements under statute. However, under section 91 of the recently introduced Land Registration Act 2002, now allows an electronic document that meets the requirements of that section to “be regarded for the purposes of any enactment as a deed”.[31] This shows the willingness of the executive and judiciary to embrace the new technological advances that have been presented by the times. The Land Registration Act 2002 has also specified that electronic signatures are as valid as a hand-signed document in law, which essentially allows for all parts of a contract regarding the dispensation of land, or an interest in land, to be completed by electronic means. This may serves to allow for a faster method of processing contracts regarding land conveyancing, especially where parties live a significant distance from one another, and avoids the use of a slow (by today’s standards) postal service, and thus provides a way of escaping the use of the Postal rule. This may serve to benefit the offeror, or offeree, in the sense that it may eliminate a significant amount of doubt as to the formation of contracts, especially during the offer and acceptance phases, where the Postal rule features prominently. It may generate more certainty in regards to the acceptance, where principles such as those featuring in Brinkibon (above) may apply, regarding suitable time for acceptance. It eliminates the need for estimation by the courts in regards to when a contract is formed, and also allows each party to be more certain of when they have entered into contractual arrangements. The rules governing electronic contracts are clearer, and they do not call for any speculation by either party, or by the courts. It also ensures that both parties will have a record of any correspondence sent and received, due to the technology of electronic storage. Overall, it appears that e-commerce and electronic contracts can only benefit society, given the ambiguities and difficulties they help to overcome in the contractual domain.

It has been established, through the consideration of statutory and common law principles, that the current situation regarding the Postal rule creates a certain amount of ambiguity and doubt in the modern context. While the rule served a valid purpose when it was created in the late 19th and early 20th centuries, the advent of modern technology has lead to the Postal rule losing its value and relevance over time, given that a great deal of communication now occurs by electronic means. It would seem that the Postal rule may require a certain amount of updating, or even abolition in favour of the newly incorporated electronic rules. There seems to be a favouring in the English system for the incorporation of electronic signatures and e-commerce into law, thus recognising the fact that the times are changing. It has been established through analysis of precedent that the Postal rule is suffering considerable as a result of the advance in technology, given the fact that they cannot apply to electronic contracts in the same way they do with posted letters. In terms of a resolution to the problem of the Postal rule, it would appear that it best is abandoned, due to its redundancy, and a more technologically advanced set of protocols be adopted, that will cater for the future. It would appear that the general principles of electronic communication will not change drastically in the future, and thus it should be easy to cater for these in drafting legislation. The system is already in place to cater for electronic contracts in some areas of contract law, and it should be incumbent on the legislature to ensure that other areas of contract are explored and refined as necessary. Ministers of the Crown have the power to do this under certain legislative provisions,[32] and this power of discretion needs to be exercised in order to ensure that the community is ready to embrace the electronic commerce revolution to its fullest extent. The strategic framework has already been set in place by the legislature, and the onus now lies with the executive and judiciary to complete the separation of powers circle, and play their role in administering the e-commerce revolution. The Postal rule will always be there to be used as necessary; however it would be reasonable to assume that the use would be infrequent at best, especially in regards to contracts governing long distance trade and similar transactions. This would also allow for both parties to be certain that they have entered into a contractual agreement, and would reduce the ability for a party to enter into a contract without communicating formal acceptance, except in cases where silence or a similar conduct may amount to sufficient acceptance under the terms of the contract. All in all, the Postal rule has served the community well, however it appears that it is time for it to be retired in favour of a newer, and more promising, principle.

Books

Cited

McKendrick, E, Contract Law (2005, 6th ed), London: Palgrave MacMillan

Considered

Beale, H, Chitty on Contracts (2002, 28th ed), London: Oxford University Press
McKendrick, E, Contract Law: Text, Cases and Materials (2003), London: Oxford University Press
Poole, J, Textbook on Contract Law (2004, 7th ed), London: Oxford University Press
Stone, R, The Modern Law of Contract (2005, 6th ed), London: Cavendish

Legislation

Consumer Protection (Distance Selling) Regulations 2000, SI 2000/2334
Electronic Communications Act 2000
Land Registration Act 2002
Law of Property (Miscellaneous Provisions) Act 1989
Law of Property Act 1924

Cases

Adams v Lindsell (1818) 1 B & Ald 681
Brinkibon Ltd v Stahag-Stahl und Stahlwarenhandelsgesellschaft mbH GmbH[1983] 2 AC 34
Entores v Miles Far East Corporation[1955] 2 QB 327 (CA)
Harris Case (1872) 7 Ch 587
Henthorn v Fraser [1892] 2 Ch 27
Holwell Securities v Hughes [1974] 1 WLR 155 (CA)
Household Fire and Carriage Accident Insurance Co Ltd v Grant (1879) 4 ExD 216
Manchester Diocesan Council for Education v Commercial and General Investments Ltd [1970] 1 WLR 242
Pretty Pictures v Quixote Films Ltd [2003] EWHC 311
Re London and Northern Bank [1900] 1 Ch 220
Tenax Steamship Co v Owners of the Motor Vessel Brimnes (The Brimnes) [1975] QB 929
Tinn v Hoffman & Co (1873) 29 LT 271

Journal Articles

Considered

Evans, ‘The Anglo-American Mailing Rule: Some Problems of Offer and Acceptance in Contracts by Correspondence’ (1966) 15 International and Comparative Law Quarterly 553
Gardner, S, ‘Trashing with Trollop: A Deconstruction of the Postal Rules in Contract’ (1992) Oxford Journal of Legal Studies 170
Hills, S, ‘Flogging a Dead Horse – The Postal Acceptance Rule and Email’ (2001) 17 Journal of Contract Law 151
Stone, R, ‘Making Electronic Contracts’ (2000) Student Law Review 15, Autumn
Stone, R, ‘The Postal Rule in the Electronic Age’ (1992) Student Law Review 15, Spring

European Union Documents

E-Commerce Directive 2000/31/EC [2000] OJ L176/1
Electronic Signatures Directive 1999/93/EC [2000] OJ L13/12

1

The obligation to obey the law – the normative

The obligation to obey the law – the normative phenomenon in jurisprudence.

Introduction:

This dissertation aims to provide a general discourse into the normative jurisprudential phenomenon of political obligation. The debate surrounding the issue of whether or not there exists a general obligation to obey the law shall be defined and described, and the arguments of the different positions within this debate shall then be summarised at length, and critically analysed. The author shall then engage with this debate and provide his own opinions as to the correct approach to take when tackling the important question of whether or not there is an obligation to obey the law.

Defining the scope of the debate:

Before we attempt to define the scope of this debate, it is important to first understand the nature of the obligation in question, and also the characteristics of the duty arising from that obligation.

The nature of the obligation: A moral or legal obligation?

Jurists are not often concerned with the legal duty to obey the law, after all, such a notion is circular and meaningless; of course the law imposes a legal duty on its citizens to obey it. As Alexy[1] notes, “… in the praxis of any system of dominion there is an implicit claim to correctness, which must be redeemed to anybody. A normative system which does not raise a claim to correctness explicitly or implicitly is not a legal system.”

Neither can the law provide ultimate reasons for action, just as a parent will be unable to explain to their perpetually inquisitive child why they must not steal without recourse to the underlying morality of the actions involved in such a crime. As Nino[2] notes, “Legal norms do not by themselves constitutive reasons for justifying actions and decisions (like those of judges), unless they are conceived as deriving from moral judgments; normative propositions that exhibit the distinctive traits of autonomy, justificatory finality, universalisability, generality, supervinience and finality”.

Therefore, rather than an assessment of the legal obligations to obey the law, most[3] jurists are instead concerned with the moral aspect of this obligation; are we always morally obliged to obey the law, and if not, in which situations may such a moral duty be deemed non-existent?

The characteristics of the duty arising from this obligation: An absolute duty, or merely a prima facie one?

To argue that there is an absolute duty to obey the law is to simultaneously suggest that in the case of every law, the moral reasons for obeying such law could never be outweighed by moral reasons pointing to disobedience. Such a position seems to pay no regard to notions of individual autonomy. As Menendez[4] writes, “if we consider it as providing an absolute reason, then we cannot any longer see it as part and parcel of the exercise of our practical reason, but as an alternative to it.”

On the other hand, if we are to argue that the only duty that exists is a prima facie one, i.e. that a duty can be said to exist until it is rebutted by an assessment of the moral content of the law, then we are in essence suggesting that the law will only impose an obligation upon us where we as individuals are able to agree with the morality underlying the law in question. Such a position seems to pay little regard to the need of a legal system to be generally obeyed in order for it to successfully perform its roles of conflict solving and social co-ordination. As Raz[5] writes: “legal norms are reasons for acting, and not merely statements to the effect that there are reasons for acting.”

The actual characteristics of the duty in question must lie somewhere between these two positions; the law must respect the processes of individual reasoning, but at the same time must impose obligations upon its citizens, at least to the extent that the system is able to retain social order and manage social conflict. As we shall observe later in this essay, different jurists have their own opinions of where the balance should be perceived to lie, although as we shall also see, this position tends to be nearer a notion of a prima facie duty, than that of an absolute duty.

With these considerations in mind, let us now briefly attempt to define the scope of this jurisprudential debate.

Defining the scope of the debate

There is a divide amongst legal philosophers over the fundamental question of whether or not there is an obligation to obey the law.

Some jurists, such as Rawls[6], Finnis[7] and Honore[8], argue that the law always has prima facie authority over its citizens, i.e. that before the content of a law is assessed, it is morally right to comply- albeit that it may later be qualified. For the sake of later discussion, let us refer to this position as position 1. Other legal philosophers such as Smith[9], have rejected this position arguing that whether or not there is such a duty to obey the law depends entirely upon which law in question is being obeyed/disobeyed i.e. that only sometimes will there be a prima facie moral obligation to obey the law [Position 2]. Between these two positions lie the opinions of jurists such as Raz[10], who argues for a more or less general prima facie obligation to obey the law, and Greenawalt[11], who, as mentioned earlier, offers an interesting alternative view which tries to show how there could be legitimate authority without a moral obligation to obey the law, a theory which is contrary to the working assumption of this paper that the nature of the obligation in question must be a moral one.

At this point in my dissertation I would like to make some more general points about the issue of whether or not there is a duty to obey the law, in particular to make some remarks about the irreconcilability of this question with the basic tenets of legal positivism.

Critics of positivism have often voiced their concerns over this very point; they argue that if the claims which positivism makes are correct about the separation of laws and morals, then there can never be a moral obligation to obey the law which arises because of the law. In other words, they cannot suggest that the law must be obeyed without resorting to some other authority other than the law itself. Lon Fuller, a natural lawyer, is one of these critics, as is Feinberg[12], who argues that: “The positivist account of legal validity is hard to reconcile with the claim that valid law as such, no matter what its content, deserves our respect and general fidelity. Even if valid law is bad law, we have some obligation to obey it simply because it is law. But how can this be so if a law’s validity has nothing to do with its content?”

In many respects this is an argument that is hard to dispel. Certain contemporary positivists have even accepted, such as Himma[13], that positivism is irreconcilable with a notion of a duty to obey the law arising from the mere fact that it is the law. He argues that a citizen has a moral obligation to obey laws which contain norms worthy of moral obedience, such as those law prohibiting theft, murder, and even laws which are necessary to retain certain levels of human control, such as driving offences, but admits that a law creates no moral duty of obedience simply on the basis that it is the law.

The result of this admission is as follows; positivists have been forced to seek out justifications for a prima facie obligation to obey the law, and have done so, quite unsuccessfully [as we shall now see], through reference to arguments based on gratitude, fairness, social contract via implied consent and utilitarian arguments pertaining to the common good.

Let us now discuss the intricacies of these position 1 arguments in more detail, and critically analyse some of the justifications that have been offered by these leading jurists in support of their position.

Defending position [1]: there is a general prima facie moral duty to obey the law.

Four concepts have been advanced as giving rise to this duty[14]; 1] Gratitude; 2] Promise-Keeping; 3] Fairness, and; 4] Promotion of the Common Good. Let us assess each of these concepts in turn:

Gratitude:

The basic concept underlying this justification for a general prima facie moral duty to obey the law is as follows: In light of the great benefits which the law has conferred upon its citizens, those citizens should obey those laws, unless there is a good reason not to in a particular case.

Promise-Keeping:

This concept suggests that any citizen who enjoys the benefits and protections of the law commits him or herself to a social contract, which states that in return for such benefits they will obey the law. In this way a citizen is morally obliged to obey the law unless they have good reasons to the contrary.

John Rawls[15] was a strong proponent of this thesis, although his formulation was somewhat more sophisticated than the reasoning above: He asserted that a society is just if it is governed by principles which people would have agreed to in a state of ignorance about their own particular position in society. He went on to argue that a natural consequence of this ‘veil of ignorance’ is a natural duty to obey the law; where the society is just (or nearly just), then there is a ‘natural duty’ of all citizens to support and further just institutions, because they would be collectively labelled right by the very people that are governed by them. Under Rawls’ theory, the duty exists independently from the promise to obey that which is required of them by an institution in a just society, because behind their ‘veil of ignorance,’ people would have agreed to it. In this way Rawls manages to justify the existence of a duty to obey, even where a particular law is not particularly just, provided the basic structure of the society is reasonably just. Rawls does not advocate an absolute duty however; he argues that where a particular law exceeds certain limits of injustice, conscientious refusal is warranted, or even civil disobedience, should the injustice reach blatant levels.

3] Fairness

This argument is twofold; firstly, in light of all the benefits that the law confers on its citizens, it would be unfair for a citizen not to obey them, and; secondly, a citizen has a duty to obey the law, not because that citizen owes anything to the government, but because he or she owes something to his or her fellow citizens; if everyone else complies with the law, then it is not fair for one citizen not to, whilst at the same time still receiving the benefit which that law confers.

In essence therefore, under this concept, there are two tests that must be satisfied before it can be said that a prima facie moral obligation to obey the law has been established on the grounds of fairness. Firstly, the law must have generally beneficial effects; and secondly, most citizens must obey the law, so that a citizen would be taking an unfair advantage should he or she decide not to.

The latter part of this test is identical to the argument offered by Dworkin[16] in justification of his general moral duty to obey the law; Dworkin asserts that a man is under a moral duty to obey the law for reasons of fairness, as outlined above, but at the same time, that same man may also be under conflicting duties other than those he owes to the state, such as to God and his own conscience; if these further duties conflict with his duties to the state, then Dworkin argues that such a man is entitled to do what he judges to be right.

4] Promotion of the Common Good:

This ground for the existence of a prima facie duty is grounded in the ideals of utilitarianism; if citizens break the law then the collective welfare of society will diminish: therefore citizens are morally obliged to obey the law. The disadvantage suffered by one citizen through giving to obey the law should, under this reasoning, be balanced against the benefit conferred to society as a whole by his compliance.

Finnis[17] is one of the main proponents of this theory, although his reasoning does go somewhat further than the simple utilitarian approaches offered above. Finnis argues that fulfilling legal obligations is necessary for the common good, simply because the common good is the good of individuals.

Having described and understood all of the possible justifications promoted for the existence of a general prima facie moral duty to obey the law [position 1], let us now return to each of them and offer some critical analysis:

Defeating Position [1]: no prima facie moral duty to obey the law can be justified via the concepts of gratitude, promise-keeping, fairness or the promotion of the common good:

1] Gratitude:

Whilst gratitude in its normal everyday meaning might indeed lead to certain moral obligations, never has it been suggested that as a direct result of gratitude one should do everything that is asked of you. It is for this reason that this ground is weak, and does not adequately justify a general prima facie moral duty to obey the law.

2] Promise-Keeping:

It is instantly obvious that no general prima facie duty could ever be said to exist by virtue of the basic promise-keeping rationale; unlike a party to a contract, a citizen has no real choice as to which country he or she belongs, and therefore even though that citizen may indeed receive benefits, be given the chance to vote, and be subjected to a just social structure, there is nothing embedded in the process of receiving these benefits which would lead one to automatically assume the imposition of a promise to obey. Therefore, I do not agree that a general prima facie obligation to obey the law can be derived by way of this rationale.

3] Fairness:

This justification for a prima facie moral obligation to obey the law relies heavily upon an idea that all law confers benefits; an anarchist however may argue that the state produces no such benefits.

Also, it is difficult to the concept of ‘fairness’ to a legal constraint which actually does no-one any good: if this type of case is frequently occurring, then the analysis of fairness as day to day co-operative transactions will break down.

4] Promotion of the Common Good:

Whichever brand of utilitarianism one chooses to apply to this concept, the same conclusion results; ‘promotion of the common good’ cannot be used to justify the existence of a prima facie duty to obey the law:

Act-Utilitarianism:

The very mechanics of act-utilitarianism require a balancing act of all the positive and negative attributes of a certain action before deciding which course would be in the interests of the common good; to decide whether or not a duty to obey the law exists will therefore depend upon which particular law is in question. As such, there can be no prima facie obligation to obey the law via this concept.

Rule-Utilitarianism:

The very mechanics of rule-utilitarianism suggest that an action is right if it is required by a rule where general observance of that rule would have the best consequences. Following on from this, it makes sense that a rule requiring one to obey (with certain exceptions) would probably have better consequences than a rule requiring one always to obey. The process of formulating a comprehensive list of such exceptions would in effect require an assessment using the same mechanisms as relevant to act-utilitarianism, and as such, the same criticisms to a prima facie duty will apply.

It should be noted that these criticisms do no necessarily serve to destroy the arguments of Finnis; Finnis argues that that fulfilling legal obligations is necessary for the common good, simply because the common good is the good of individuals. This is a theory that I will address in more detail at a later point in this dissertation. For now, we should simply be satisfied that any justifications based upon act- or rule- utilitarianism cannot be successful in establishing the existence of a general prima facie duty to obey the law.

In essence, the criticisms of act-utilitarianism and rule-utilitarianism do not preclude there ever being a duty to obey the law, merely that the existence of such a duty can only be determined with reference to each particular law. This leads us back to our earlier discussion of ‘position 2’ jurists, those such as Smith[18], who argue that whether or not there is such a duty to obey the law depends entirely upon which law in question is being obeyed/disobeyed i.e. that only sometimes will there be a prima facie moral obligation to obey the law. Before we go on to discuss the rationales that have been offered in support of position 2, let us first take a brief look at the work of George Klosko[19], and his multiple principle theory of political obligation:

George Klosko’s multiple principle theory of political obligation; combining the failing justifications of Natural Duty, Fairness and the Promotion of the Common Good, into a comprehensive justification for the existence of a general moral obligation to obey the law:

George Klosko employs three concepts in order to combine the principles of Natural Duty, fairness and the promotion of the common good into a single comprehensive unifying theory. He labels these three concepts as cumulation, mutual support and overlap. He describes these three principles in the following way:

‘First is what we call cumulation. Different principles can cover different services provided by the state, and so by combining principles, a larger range of state services can be accounted for. Second is what can be referred to as mutual support. In regard to certain state functions, if a given principle on its own cannot justify compliance, the problem might possibly be overcome by more than one principle working in tandem. The third way is simple overlap. The intuition here is that, while requirements to obey given laws could be relatively weak, these can be strengthened by support of additional principles.[20]

These three concepts admit that individually arguments of Natural duty, fairness and those argument pertaining to the common good must fail in their task of explaining and identifying a general moral duty to obey the law, but using these three principles as described above, he purports to show how these failing arguments can be combined to successfully address those limitations. The principle of culmination serves to suggest that the main limitation of these theories is their applicability to a limited area of state function, i.e. the services that the state provides to its citizens. Mutual support deals with the limitations of these individual arguments in relation to their attempt to justify a general moral obligation to obey the law, and the overlap principle deals with the respective weaknesses of each of these individual arguments, very much in the same way as we have done earlier in this essay.

Klosko argues that a theory that only purports to account for one type of state function cannot be said to lead to a general duty to obey the law. He argues that state functions are social facts, and as such the failure of theorists to account for the variety of these functions in their theories is a factual failure in their arguments, a factual failure which must therefore lead to conclusions which are non-comprehensive and cannot therefore be said to give rise to the general moral duty to obey the law which they purport to do.

Whilst prima facie I can see the point that Klosko is making; each of these theories do work to a certain extent, the problem being that we are always able to find many situations which exist where the theories fail to hold up to scrutiny. What Klosko has therefore tried to do is to incorporate these theories together, so that when one of them fails, another justification can step in to uphold our position of there being a general moral duty to obey the law. Whilst at first this may seem somewhat artificial, at least Klosko has tried to justify the fusion of these very different arguments by reference to state function.

One cant help however feeling that some of the failures of the very individual justifications that he is using, rather than being simply due to their limited scope [by virtue of differing state functions], are so fundamental as to render any fusion of them inappropriate. By the end of this essay I shall hopefully have demonstrated that the best analysis of the question of whether or not there is a general moral duty to obey the law does not result from any of these individual arguments, neither from the fusion of them, but rather from a wholly new conceptualization of the character of the obligation and duty itself.

Let us now turn to the position 2 theorists, and see if we can find some compelling arguments amongst their writing:

Defending Position [2]; there may be a prima facie obligation to obey some laws, but such a duty cannot be a general one:

M.B.E. Smith is commonly known as an advocate of this position. In his earlier work, ‘Is There a Prima Facie Obligation to Obey the Law?’ he performs an analysis of all the arguments which purport to support the existence of a ‘position [1]’ duty to obey the law, providing successful counter arguments for each, and finally concluding as a result these analyses that the true answer to the question of whether or not there is a general prima facie moral duty to obey the law must reside at ‘position [2];’ whether or not there is such a duty to obey the law depends entirely upon which law in question is being obeyed/disobeyed i.e. there will only sometimes be a prima facie moral obligation to obey the law.

Defeating Position [2]; Simply because we cannot find adequate justification for the existence of a general prima facie moral duty to obey the law does not mean that we must, by default, resort to the conclusion that the most accurate description of this normative phenomenon is that of there only sometimes being a prima facie moral obligation to obey the law:

Simply because we cannot find adequate justification for the existence of a general prima facie moral duty to obey the law does not mean that we must, by default, resort to the simplistic conclusion that the most accurate description of this normative phenomenon is that of there only sometimes being a prima facie moral obligation to obey the law.

Joseph Raz, in his ‘Theory of Justice’ (1971) argues this point exactly. He does not understand why theorists have not ventured to reach a compromise between position [1] and position [2], especially in light of the fact that it seems so clear that the true answer must lie somewhere between these two extreme positions. Raz therefore proposed such a theory.

The compromise between position [1] and position [2]; J. Raz, in search of a new characterisation:

Earlier in this essay we discussed the character of the duty in question. We argued that whilst the duty will never be an absolute one, neither is it realistic to suggest that such a duty will be generally prima facie in character.

To reiterate those arguments, for the duty to be absolute is to deny a place for individual reasoning and autonomy in a society; if every law must be obeyed regardless of any extraneous personal beliefs or opinions, then personal practical morality is denied. Likewise, if the duty was prima facie in character, the ability of the law to retain social order and manage social conflicts may come into question;

Raz therefore decided that an alternative characterisation of the obligation was required, and so was born the notion of an ‘absolute reason’, or, as it has become known by certain other jurists[21], ‘the exclusionary reason.’ Let us now consider exactly what Raz understands by it:

Raz’s new characterisation of the obligation to obey the law:

Raz introduces the idea of there being two orders of practical reason; first-order reasons and second order reasons. These reasons are ‘practical’ in that they are the kind of reasons that may feature in an individual’s decision process when that individual is attempting to decide upon a particular course of action, i.e. reasons to act or to refrain from acting for a reason. Second order reasons are higher in priority that first-order reasons, and as such, if two such reasons should come into conflict, it will be the second-order reason that shall prevail. Second-order reasons however might themselves be trumped by what Raz describes as ‘cancelling-reasons’, reasons which might exist within the context of the particular decision process at hand which could render the secondary-reasons void. The jurisdiction of a ‘cancelling-reason’, i.e. its scope within the context of a particular decision, will be affected by what Raz calls ‘scope-affecting reasons.’ Exclusionary reasons are second-order reasons of a special kind; whereas all the other types of reasons may be distinguished by their ground, exclusionary reasons have a special normative role to play in the whole practical deliberative process, and it is this normative role by which exclusionary reasons should be distinguished. In effect therefore, ‘A second-order reason is any reason to act or to refrain from acting for a reason, whereas an exclusionary reason is a second-order reason to refrain from acting for some reason.[22]’ Exclusionary reasons exclude other secondary reasons from playing their normal role in the deliberative process, in effect cancelling these otherwise valid reasons from the decision making process. To best understand the nature of these exclusionary reasons, and how they operate within the practical decision making process, let us follow through Raz’s very argument for the existence of these special secondary reasons:

Raz commences his argument with an analysis of a couple of examples of the decision-making process. The first example scenario involves an agent who refuses to accept a business deal on the basis that he is too tired to think about whether or not the deal could be advantageous to him. Raz explains how the decision making process in this example did not involve the processing of the actual fact pertaining to the deal in question, but rather on the basis that she realised that she was too tired to perform a thorough assessment, and as such decided to play safe and decline. In this case, the first order reasons would be the facts relating to the deal, and these are trumped by the second-order reason of tiredness. Raz then proposes the situation where a colleague of the agent, another like-minded agent of similar financial status, decides to accept an identical deal; this may prove to be an adequate reason for the agent, despite her tiredness and inability to assess all the intricacies of the deal, to accept the deal. In such a case, we could say that the fact that the other agent accepted the deal serves as a reason for her to accept it herself. This reason does not outweigh the tiredness reason, nor does it undermine it, but it does result in a different outcome to her decision-making process.

The second example scenario offered by Raz is as follows: ‘While serving in the army Jeremy is ordered by his commanding officer to appropriate and use a van belonging to a certain tradesman. Therefore he has reason to appropriate the van. His friend urges him to disobey the order pointing to weighty reasons for doing so. Jeremy does not deny that his friend may have a case. But, he claims, it does not matter whether he is right or not. Orders are orders and should be obeyed even if wrong, even if no harm will come from disobeying them. That is what it means to be a subordinate’[23]. According to Raz, the order given to Jeremy by his commanding officer should be regarded as an exclusionary reason in that it excludes the reasons offered to him by his friend, from featuring in his practical deliberative process, despite the fact that these reasons were sound in nature. This is what Raz means by ‘exclusionary reasons.’ As stated above, these reasons are distinguishable by virtue of their normative role, a role which Raz describes as “…reasons for performing certain actions, and, other things being equal, the fact that they are excluded by an exclusionary reason merely means that they should not be complied with, not that they should not be conformed to. The best course is if they are indirectly obeyed, i.e. if the action they indicate is performed for some other, independent, reason.[24]

Let us now apply this characterization to our general duty to obey the law. The first thing which becomes evident is that the duty to obey the law can itself be described as an exclusionary reason; when we state that someone is under a duty to obey the law, we are effectively stating that in the decision process of that person, reliance on extra-legal considerations in the formulation of the decision of whether or not to act in such a way has no actual place in that process. Such extra-legal considerations are thus excluded from the practical decision making process by the very existence of a duty to obey the law.

One might argue here that an analysis of the duty in this way yields no different results to that of the characterization of the duty as an absolute one. In fact, whilst the result may very well be the same, the description of the duty as an exclusionary reason does give respect to the existence of a balancing decision making process, in a way which an absolute conception would not; as Menendez[25] writes, “the duty to obey the law, when conceptualized as an exclusionary reason, precludes direct weighting and balancing, but it does not rule out a margin of exercise of practical reason. This is enough to render compatible the obligation with individual autonomy.”

Raz’s picture of the duty to obey the law is certainly the most convincing to date; although somewhat contrived, it does manage to reconcile legal and moral duty in a way which allows the law to retain a legitimate authority, whilst respecting the fact that human beings are essentially autonomous in their decision making.

Let us now see if we can find any criticisms of Raz’s

‘The Law Commission’s review of the law of intention

‘The Law Commission’s review of the law of intention confirms the view…that the English law of intention for murder is based upon an understanding that lacks in two opposite ways. First, as regards direct intention, the law is morally under-inclusive in that it places too much moral weight on a psychological conception of the required mental state. It therefore fails to recognise properly the issue and significance of the concept of ‘indiscriminate malice’. Secondly, as regards direct and indirect intention, the law is morally over-inclusive, failing to differentiate culpable and non-culpable acts.'(Norrie, 2006)

Critically discuss the above statement with reference to the doctrine of intention in relation to the crime of murder and the Law Commission’s Consultation Paper Homicide (No.177, 2005).

Before we commence our discussion, let us first be quite clear on what is meant by ‘direct intention’, ‘indirect intention’ and ‘indiscriminate malice’ in the context of the above statement.

Intention literally means ‘aim or purpose that guides an action[1]’. Therefore, ‘direct intention’, in the context of murder, means an act committed with the direct purpose of killing, or causing serious harm to, another. This has been one of the mens rea requirements for murder as far back as the 17th Century[2]. Clearly, this precludes an intention to achieve another criminal purpose altogether, where the actor ought reasonably to have foreseen, but did not directly intend, the death of another to be a virtually certain result of his actions, e.g. the intention of a ‘person who places a bomb on a plane for the purpose of making an insurance claim in respect of property but who foresees as a virtual certainty the death or serious injury of those who are on the plane when the bomb explodes.[3]’ This is what Norrie refers to as ‘indiscriminate malice’; ‘malice,’ in that the actor intended to perform an illegal act, and; ‘indiscriminate,’ in that the actor paid little or no regard to the virtually certain consequences of his actions, namely the death of another. It has long been recognised that the law should bring actions of indiscriminate malice within the scope of the crime of murder, but that a strict requirement of ‘direct intention’ would fail to do so; ‘direct intention is simply ‘too narrow for the purposes of criminal responsibility[4]’. Thus, the concept of cognitive ‘indirect intention’ was born, introduced into English law in the case of Nedrick[5]. Such intention does not have to be direct, but can merely involve a degree of foresight which, if possessed, should warrant a conviction of murder rather than manslaughter, a crime which denotes a too low a degree of criminal and moral culpability for actions where the death of another is virtually an incidental certainty. This doctrine, in its current form, was laid down by Lord Lane CJ Nedrick[6] in 1986, and modified by Lord Steyn in Woollin[7]: “Where the charge is murder and in the rare case where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and the defendant appreciated that such was the case.[8]

Some commentators have argued, as Norrie does at the top of this paper, that such an extension has gone too far; whilst indiscriminate malice now clearly comes within the scope of this extended intention requirement for murder, which is a good thing, other actions are now also included under the crime of murder, crime which, due to the lack of criminal and moral culpability involved, would be more fairly labeled as manslaughter. An example of such an action being so unfairly labeled was provided by Lord Goff in the Nathan Committee Report by the House of Lords Select Committee on Murder and Life Imprisonment [9]: “A house is on fire. A father is trapped in the attic floor with his two little girls. He comes to the conclusion that unless they jump they will all be burned alive. But he also realises that if they jump they are all [virtually certain] to suffer serious personal harm. The children are too frightened to jump and so in an attempt to save their lives he throws one out of the window to the crowd waiting below and he jumps with the other one in his arms. All are seriously injured, and the little girl he threw out of the window dies of her injuries.” The Law Commission, in citing and analyzing this example, came to the conclusion that the father in this case should not be labeled a murderer. Under the concept of ‘indirect intention’ however, the father should be guilty of this second-degree crime. As Norrie notes[10], the Law Commission were forced to conclude that ‘indirect intention’, by focusing on the knowledge of the father rather than the wishes behind his actions, was morally over-inclusive, failing to differentiate correctly between culpable and non-culpable acts, i.e. between actions of indiscriminate malice, such as the insurance fraudster who blows up the plane with no regard to the life of those on that plane, and actions involving no malice, but which are indiscriminate in their effects, such as the actions of the desperate father in Lord Goff’s example above.

In this paper I shall address these concerns in detail, concluding that a cognitive approach to intention may simply be unsuitable for the crime of murder; it fails to adequately demark the boundaries of culpability between this crime and that of manslaughter. I shall then examine the Law Commission’s Consultation Paper Homicide (No.177, 2005), and shall critically discuss their approach to these problems, concluding with an assessment of how successful these reform proposals would be in their aim of differentiating correctly between culpable and non-culpable acts, if implemented.

As we have already seen from the examples discussed above, Norrie is quite right in his assertions; the requirement of direct intention is too focussed on the specific mental state of the actor with the effect that the charge of murder would be precluded for anyone other than an offender who either directly intended to kill his victim, or at least intended to cause that victim serious harm from which death was a reasonably foreseeable result. Likewise, the extension of this requirement to include indirect intention, whilst at least serving to bring crimes of indiscriminate malice under the scope of ‘murder’, also serves to bring other such actions under this label, actions which should only be considered manslaughter, in light of the lower degree of criminal culpability possessed by their perpetrators. In other words, it is not always fair to equate foresight of a virtually certain result with intention. Let us now look at the reforms to the doctrine of direct intention, which have been proposed by the Law Commission in their Report on Homicide[11], and assess to what extent these reform might actually serve to correct the current inadequacies:

In this Report, the Law Commission make two different reform proposals; the first of these is to create a statutory definition of intention which avoids the problems of indirect intention being construed too widely by a jury; the second is to codify the existing common law doctrine of indirect intention, but to modify it so that the current problems of indirect intention can be avoided. Both of these proposals are therefore designed to rectify the problem of indirect intention being construed too widely, whilst at the same time allowing this doctrine to continue its prosecution of indiscriminate malice as murder where appropriate. The rationale behind both of these alternative proposals is to rectify the distinction which can, in exceptional cases, exist between intention, in its natural form, and intention implied by reasonable foreseeability/ virtual certainty. They reform proposals recognise that it is possible for an offender to have not intended a particular outcome, even though he or she may have realised that such an outcome was a virtually certain consequence of their actions. This is commonly known as the ‘Woolin[12]’ problem.

Under the first proposal, the Commission have state that ‘It is crucial that a statutory definition of intention should not cause injustice, or absurdity, by deeming certain conduct to be intended when the circumstances show it to be otherwise[13]’. Thus, under this first proposal, the Commission propose to insert a proviso into a statutory definition of intention, i.e. ‘A person is not to be deemed to have intended any result, which it was his or her specific purpose to avoid.[14]’ This should not be seen as reinserting a motive assessment into that of intention, but rather to provide a means by which a jury will not be forced to convict someone of murder, in an exceptional case where that offender specifically did not intend to cause death even though he knew it would almost certainly result from his actions.

Under the second proposal, the Commission suggest a codification of the current doctrine of intention, modified to take account of those exceptional cases where it would be unfair to equate foresight of a virtually certain result with intention, might be as follows. Such a formulation might read as follows:

“(1) A person is to be regarded as acting intentionally with respect to a result when he or she acts in order to bring it about.

(2) In the rare case where the simple direction in clause (1) is not enough, the jury should be directed that: they are not entitled to find the necessary intention with regard to a result unless they are sure that the result was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.

(3) In any case where the defendant’s chance of success in his or her purpose of causing some other result is relevant, the direction in clause (2) may be expanded by the addition of the following phrase at the end of the clause (2) direction: or that it would be if he or she were to succeed in his or her purpose of causing some other result, and that the defendant appreciated that such was the case.[15]

This would have the effect of maintaining the current law in relation to virtual certainty, which as Lord Steyn pointed out in Woolin, “has [over a period of 12 years since Nedrick] apparently caused no practical difficulties,[16]’ whilst at the same time, limiting the doctrine of indirect intention so as to exclude those situations where an offender might have seen death as being virtually certain, but where he specifically tried to avoid it. This proposal purports to do this by providing the jury with more specific guidelines as to when they are entitled to infer indirect intention.

Both of these reform proposals are encouraging; it would seem that the Law Commission is heading in the right direction at last. The first proposal specifically precludes the Woolin problem with the insertion of a provision which, although purportedly reintroducing a motive element to the doctrine of intention, can actually be used to ensure that intention is not implied where it would be unfair to do so. The second is less specific, but purports to achieve the same ends by clarifying the necessary circumstances in which indirect intention should be implied.

In conclusion, I would favour the first proposal for the following reason; the second proposal will only slightly modify the doctrine of indirect intention, and will only slightly limit its scope. The proviso contained in the first proposal however, is, as yet, unlimited in its scope, and as such, can be used by a jury to greater effect. This may have the result of reverse injustice, i.e. offenders who should morally be guilty of murder escaping this label for the lesser conviction of manslaughter, but I feel that it will so significantly decrease the chances of the reverse occurring, i.e. offenders who should only be found guilty of manslaughter being labeled as a murderers, that such a risk is justified; after all, it is more important to encourage this latter phenomenon than it is to prevent the former from occurring at all costs, especially in light of the huge sentences which are imposed on those offenders convicted for the crime of murder.

Bibliography:

Law Commission’s Consultation Paper Homicide (No.177, 2005)

Nathan Committee Report, Report of the House of Lords Select Committee on Murder and Life Imprisonment (HL paper 78-1, 1989).

A Ashworth, Principles of Criminal Law (4th ed 2003)

A Norrie, “Subjectivism, Objectivism, and the Limits of Criminal Recklessness” (1992) 12 OJLS 45.

A P Simester, “Why Distinguish Intention from Foresight?’” in A P Simester and A T H Smith, Harm and Culpability (1996) 71.

Williams, G. (1955) The definition of Crime Current Legal Problems 8, 107-30

Smith, A. H. (2004) ‘Criminal Law: The Future’ Criminal Law Review, Dec, 971-80

1

“The House of Lords decision in Bolitho (Bolitho

“The House of Lords decision in Bolitho (Bolitho v City and Hackney HA [1998] AC

232) is a belated and welcome departure from judicial deference to medical opinion but there is still too much deference and more has to be done”.

Critically comment on the above statement.

In any negligence claim, in order to succeed the claimant must show that he was owed a duty of care by the defendant, that the duty of care was breached, and that the breach of duty caused the damage complained of.[1] Kennedy and Grubb comment that the duty of care arises ‘from a request for medical services by an individual and a consequent undertaking by a doctor [or other health care professional] to provide these services.[2] Margaret Brazier has observed: ‘[a] patient claiming against his doctor … usually has little difficulty in establishing that the defendant owes him a duty of care’.[3]

The second stage of a clinical negligence action is to show that the doctor has breached his standard of care. In any negligence claim, the standard of care is set by law and is an objective standard.[4] Words such as reasonable or responsible are normally attributed to such a standard. Such adjectives are not normally equated with a practice that is ‘common’ or ‘accepted’. With respect to medical negligence claims however, the law has not taken such a view. The case of Bolam v Friern Hospital Management Committee[5] has established that ‘a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’. The Bolam case was a decision at first instance, but was later approved by the House of Lords in Whitehouse v Jordan.[6]

The courts have continuously taken a protectionist view of the medical profession in clinical negligence claims. Jackson acknowledges that this could be due to the complexity of medical evidence, but it could also be explained by a sense of professional solidarity.[7] The medical profession has been highly regarded in society, and the courts have also expressed their respect. In Wilsher v Essex AHA,[8] Mustill LJ comments:

“For all we know, [The doctors in this case] far surpassed on numerous occasions the standard of reasonable care. Yet it is said that for one lapse they (and not just their employers) are to be held liable in damages. Nobody could criticise the mother for doing her best to secure her son’s financial future. But has not the law taken a wrong turning if an action of this kind is to succeed?”

It is interesting to note the difference in policy in cases involving medical professionals. In other negligence cases, the courts have commented that the function of the law of negligence (and the law of torts in general), is to compensate injured parties for loss. The judiciary have had no moral objections to awarding damages in cases where they can apply the ‘deepest pocket’ principle. Thus, in Nettleship v Weston,[9] Lord Denning had no problems in asserting that a learner driver would be held to the same standard of a competent driver (competent would be ascertained on an objective basis by the court), as the driver would be insured and thus, the law will award damages from the deepest pocket. Yet, there has been considerable hesitation in holding doctors negligent for public policy reasons, despite the fact that doctors will be also be insured. Furthermore, doctors working in the NHS will generally not be personally held accountable for the negligence – the action is brought against the Trust vicariously and NHS Trusts in England and Wales are part of an ‘insurance like’ scheme, the Clinical Negligence Scheme for Trusts (CNST) administered by the NHS Litigation Authority.

The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors may adopt a different practice. ‘In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment.’[10] In Maynard v West Midlands RHA,[11] Lord Scarman seemed to favour an approach that a doctor will not be negligent if there are other reasonably held approaches that are the same as the defendant doctor’s approach:

“I have to say that a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred … For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another.”

The pure Bolam approach is the subject of scathing academic criticism. Kennedy and Grubb comment: “It may seem curious that the law would defer to the medical profession in setting the content of the duty in negligence.”[12]

Despite the deference to the medical profession in the courts, there have been some exceptions and one example is the case of Hucks v Cole.[13] The case involved a pregnant woman with a septic finger whose doctor failed to prescribe her penicillin. The patient suffered puerperal fever as a result and a number of witnesses gave evidence stating that they would not have prescribed penicillin in the same situation. However, the Court of Appeal held that even if there are relatively small risks involved, the fact that it would have been easy to avoid such risks so easily and inexpensively, is clearly not reasonable. Sachs LJ comments:

“On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not … conclusive. … Despite the fact that the risk could have been avoided by adopting a course that was easy, efficient and inexpensive, and which would have entailed only minimal chances of disadvantages to the patient, the evidence of the four defence experts to the effect that they and other responsible members of the medical profession would have taken the same risk in the same circumstances has naturally caused me to hesitate … The reasons given by the four experts do not to my mind stand up to analysis …”

The approach taken in Hucks v Cole was also adopted by the House of Lords in Bolitho v City and Hackney HA,[14] in which the traditional Bolam approach was departed from. Lord Browne-Wilkinson comments:

“In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”

The relevance of the Bolitho decision was initially regarded as a major shift from the pure Bolam approach. Following the decision, Kennedy and Grubb comment that ‘the law has been put back on its proper course’.[15] Lord Browne-Wilkinson was suggesting that medical approach must be defensible and capable of withstanding logical analysis. However, he qualified this by stating that this would only occur in ‘rare’ cases. Hucks v Cole was certainly one of those rare cases, but it is arguable whether there has been a significant shift in approach by the courts. In Wisniewski v Central Manchester Health Authority,[16] the defendant did not follow a procedure that would have detected that a baby’s umbilical cord was wrapped around his neck during birth and the medical opinion differed over the reasonableness of such. Brooke LJ comments that:

Hucks v Cole itself was unquestionably one of the rare cases which Lord Browne-Wilkinson had in mind … In my judgment the present case falls unquestionably on the other side of the line, and it is quite impossible for a court to hold that the views sincerely held by [the experts supporting the actions of the defendant] cannot logically be supported at all … the views expressed by [those experts] were views which could be logically supported and held by responsible doctors.”

There have been a small number of ‘rare’ cases where the courts have gone as far as questioning the logic and defensibility of medical authority. The case of Reynolds v North Tyneside Health Authority,[17] is one such example. Thus, Gross J comments that it is one of those ‘rare cases where the Court could and should conclude that such body of opinion was unreasonable, irresponsible, illogical and indefensible.’ Similarly, in Marriott v West Midlands RHA,[18] the Court of Appeal stated that the expert evidence given by the witnesses defending the doctor’s conduct could not be logically supported. The Court of Appeal also affirmed that the trial judge was entitled to question whether an opinion was reasonably held and Mason and Laurie comment that ‘[o]n the face of things, then, Marriott moves the Bolitho test from one of logic to one of reasonableness, which is much more akin to the reasoning applied in other, non-medical standard of care decisions.’[19]

The approach taken by the courts post Bolitho seems to suggest that the courts are only prepared to examine the credibility of witnesses and not the content of their evidence. So long as the evidence given is ‘truthfully held’ and ‘honestly expressed’ then the court is reluctant to question the evidence.[20] Furthermore, there have been a number of post-Bolitho decisions and it seems as though there is still a constant reluctance to question medical experts, and if there has been any departure from the traditional Bolam approach, this certainly seems to have been on the basis of the credibility of expert witnesses, and not on the reasonableness of their opinion. Thus, the subsequent case law suggests a somewhat restrictive approach on the modification of the Bolam principle in its new Bolitho interpretation.[21]

Writing extra judicially, Lord Woolf comments that there have been a number of reasons for a shift away from the traditional approach in Bolam.[22] The courts apparently now have a less deferential approach to those in authority.[23] The courts have also apparently recognised the difficulties that genuine claimants have in successfully bringing a clinical negligence claim. At the same time, there has been a raise in the number of clinical negligence claims in England and Wales over the last number of years.[24] Furthermore, with an increasing awareness of patient rights, an increasing loss of faith in the public health service following various health ‘scandals’ such as Bristol and Alder Hey, a judicial deference to the medical profession certainly has its days numbered. Also, as Woolf acknowledges, ‘our courts were aware that courts at the highest level of other Commonwealth jurisdictions, particularly Canada and Australia, were rejecting the approach of the English Courts. They were subjecting the actions of the medical profession to a closer scrutiny that the English Courts …’[25]

Other commentators have also noted the way in which lawyers approach the issue of using expert witnesses. Teff comments:

“Reassertion at the highest level of the court’s role in scrutinizing professional practice is welcome, not least because of current concerns about the dynamics of providing expert evidence for the purposes of adversarial litigation. Some law firms’ choice of experts is apt to depend too much on perceived presentational skills and acuity in advancing the client’s case, and too little on detached expertise…

… One prominent medicolegal authority has bluntly declared that ‘Bolam will only work fairly if the use of hired hands as defence medical experts is eliminated. It would then be possible to talk of a responsible body of medical opinion’.”[26]

Teff has thus outlined some of the practices that demonstrate how the Bolam principle is deferential in practice. Lawyers tend to look for an expert who will make their case stronger, and a survey of 500 expert witnesses revealed that about a quarter noted comments that in some instances, witnesses were requested to change comments that were alteration of their opinions.[27]

The problems associated with the Bolam test have not only presented themselves in clinical negligence cases. The traditional Bolam approach was also questioned under the scope of ‘informed consent’ cases, which involve a claim of negligence for failing to warn of risks inherent in treatment.

The leading case on the issue of disclosure of risks in treatment is Sidaway v Board of Governors of the Bethlem Royal Hospital.[28] Discussion of the Bolam test was present in practically all of the judgments delivered. Lord Bridge asserted that the law should reject the ‘reasonable patient’ test and follow a modified version of the Bolam test. Accordingly, disclosure of information is ‘primarily a matter of clinical judgment’, but this does not mean that the profession is entitled to set its own standard in such cases. Thus, a judge would be entitled to hold that a clinician should have disclosed a risk where there was a procedure that involved a ‘substantial risk of grave adverse consequences’, giving the example of a 10 per cent risk of stroke as substantial, but a 1 or 2 per cent risk of spinal cord damage was not substantial. Similarly, Lord Templeman also suggested that a modified Bolam approach should be taken.

Subsequent interpretation of the Sidaway case has not been straightforward. The reasoning of the judges in the case is far from consistent, and furthermore, according to Lord Browne-Wilkinson, the modified test put forward to Bolitho did not apply to such cases. The Court of Appeal in Gold v Haringey HA,[29] merely referred to the judgment of Lord Diplock and therefore applying the Bolam principle in its purest form, an approach not generally followed by the House of Lords in Sidaway. The Australian High Court on the other hand decided the issue differently in the case of Rogers v Whitaker.[30] In that case, the shortcomings of the Bolam test were identified by the High Court:

“One consequence of the application of the Bolam principle to cases involving the provision of advice or information is that, even if a patient asks a direct question about the possible risks or complications, the making of that inquiry would logically be of little or no significance; medical opinion determines whether the risk should or should not be disclosed and the express desire of a particular patient for information or advice does not alter that opinion or the legal significance of that opinion. The fact that the various majority opinions in Sidaway … for example, suggest that, over and above the opinion of a respectable body of medical practitioners, the questions of a patient should truthfully be answered (subject to the therapeutic privilege) indicates a shortcoming in the Bolam approach.”

The Australian High Court specifically chose not to follow the Bolam test in information disclosure cases, commenting:

“In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill … But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade … Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied … Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to “the paramount consideration that a person is entitled to make his own decisions about his life”.”

The comments made by Lord Woolf[31] in his paper are clearly justified when examining the decision in Rogers v Whittaker. Commonwealth decisions have been far more willing to examine and scrutinize medical evidence and it may not always be a question of what is more preferential for the judge to follow, but it is instead what the judge feels is reasonable. This does not involve the judge merely accepting that two courses of treatment may have both been reasonable in the circumstances in the opinion of medical experts. The judge’s actual role is to establish the reasonableness of each on the basis of the evidence presented to him and that does not necessarily mean that both have to be right. Mason and Laurie comment:

“[W]hile the courts are increasingly determined to see that the Bolam principle is not extended [into areas such as judging ‘best interests’], they still have an innate reluctance to abandon it in respect of medical opinion; there is a sense that Bolitho, although welcome, is being used mainly in a ‘back-up’ position. What is certain is that Bolam can no longer be regarded as impregnable.”

Thus, on the basis of the above comment, the post-Bolitho meaning of Bolam is that it is merely a back up for when the case faced by the court suits a change in approach. Furthermore, while the courts have been apparently reluctant to extending the Bolam principle into the best interests test,[32] the principle has already been incorporated into the concept of best interests. Airedale NHS Trust v Bland[33] required an analysis of what was in the best interests of a patient in a persistent vegetative state, who was being kept alive by artificial nutrition and hydration. In an analysis of whether such nutrition and hydration should be withdrawn (resulting in the death of the patient), the Law Lords turned to analyse the patient’s best interests.

The treatment was apparently not in the patient’s best interests. This was because it was regarded as futile. In Lord Goff’s words[34], ‘the patient is unconscious and there is no prospect of any improvement in his condition’. In deciding whether the treatment was futile, the doctor had to act in accordance with a responsible body of medical opinion. More precisely the doctor had to satisfy the Bolam test. It is difficult to comprehend how it is relevant in deciding what is in the best interests of a patient –conflicting views of doctors will always be Bolam reasonable as long as one other doctor supports that view.

In conclusion, the courts have established a completely different system of establishing the standard of care for medical professionals to that of other professionals. The Bolam approach has traditionally been interpreted as a principle that a doctor will not be negligent if other professional opinion holds his actions as reasonable, even if that opinion is a minority. The courts have been deferential to the profession, and the apparent move away from such approach in Bolitho is a disappointment of this deference. Lord Browne-Wilkinson’s words were read quite literally, the emphasis being placed upon the words, ‘but if in a rare case’ – the courts have only questioned ‘reasonable and responsible’ medical opinion in a very small amount of cases and it seems as though the Bolitho approach is, as Mason and Laurie commented, a mere ‘back up’ if the judge wishes to find for the claimant. Whilst the courts have slowly begun to depart from the traditional approach, more needs to be done before there is any comparison with the approach of other Commonwealth jurisdictions, such as Australia. Furthermore, the courts should be more clear in their reasoning, as it is also important to be able to ascertain objectively how cases should be decided on grounds of precedent. The majority of clinical negligence claims that are commenced, are settled by the NHS Litigation Authority before they even reach court and would it not be more economic for the NHS to be able to ascertain with greater certainty when a doctor has been negligent? Finally, the decision in Bolitho is far from a departure of judicial deference to the medical profession, it is a mere spin on the language originally used in Bolam. The courts now have ground to make in establishing a more fair, predictable and objective approach in line with other negligence actions.

Bibliography

Brazier, M. ‘Medicine, Patients and the Law’ (2003, 3rd edn) Penguin Books, London

Davies, M. ‘Textbook on Medical Law’ (2001, 2nd edn) Blackstone Press, London

Jaskson, E., ‘Medical Law – Text, Cases and Materials’ (2006) Oxford University Press, Oxford

Kennedy, I. & Grubb, A. ‘Medical Law’ (2000, 3rd edn) Butterworths, London

Mason, JK et al, ‘Law and Medical Ethics’ (2002, 6th edn) Butterworths, London

Montgomery, J. ‘Health Care Law’ (2003, 2nd edn) Oxford University Press, Oxford

National Audit Office, Handling Clinical Negligence Claims in England, 2001

Singer, P., ‘Rethinking Life and Death: The Collapse of our Traditional Ethics’ (OUP Oxford 1994)

Journal Articles

Brazier, M., Miola, J., ‘Bye-Bye Bolam: A Medical Litigation Revolution?’ (2000) 8 Med L Rev 85

Keown, J., ‘Reining In the Bolam Test’ (1998) 57 CLJ 248

Teff, H., ‘The Standard of Care in Medical Negligence – Moving on from Bolam?’ (1998) 19 Oxford Journal of Legal Studies 473-84

Woolf, Lord., ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) 9 Medical Law Review 1-16.

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