It has often been asserted that English private international law has no doctrine of evasion of the law. It is true that English law has never developed a general doctrine, like the French one of fraude a la hi, to deal with cases of evasion. Nonetheless, evasion of the law has been recognised as a problem in at least some areas of private international law, and an increasing number of specific anti-evasion measures have been introduced in response to this. The English approach towards evasion is a pragmatic one rather than being based on any broad underlying theory. In particular, the fundamental questions have not been addressed of what is wrong with evasion of the law and how it can be dealt with most effectively. The purpose of this article is to examine the present law on evasion, determine what is wrong with evasion of the law and put forward proposals for a principled approach to deal with the problem.

In this paper I propose to defend legal conventionalism against the attack mounted on it in Chapter 4 of Ronald Dworkin's book Law's Empire. I do not propose to defend legal conventionalism against other arguments which might conceivably be deployed against it. Nor do I propose to say anything of great substance about the positive merits of the position.

The decision in 1907 to grant habeas corpus in favour of Eddie Guerin, a notorious criminal widely known as the man who escaped from Devil's Island, attracted attention at the time in the popular press but has been largely ignored by lawyers. The judgment of the court was brief and the issue decided appeared to be entirely factual. Yet the case was a remarkable one from a legal perspective which merits further attention. It deals with a difficult and crucially important legal point—the burden of proof and the resolution of issues of disputed fact on habeas corpus—in a most unusual and intriguing way.

This paper was prompted by the feeling that the differences between the systems under comparison are not as great as they are commonly believed to be and by the knowledge that lawyers in each of these countries tend to have a vague if not distorted picture of each other's laws. The way I have tried to approach my subject has been through the use of statistics so, before I say anything about the differences between the systems, real or apparent, let me make some cautionary remarks.

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

It has been suggested by several writers that property of an intangible nature, such as debts, should be subject to the same choice of law rules as those which govern tangible property and immovable property. The idea that the lex situs should be adopted to determine proprietary questions relating to debts is particularly prevalent in cases where the English courts are called upon to decide whether to recognise a foreign government's actions or whether to garnish a debt. But should one of the most dominant choice of law rules, that of the lex situs, gain an even wider application than it already clearly has? Before answering this question any suggestion that the lex situs should be adopted for matters relating to debts has to face the obvious logic that that which cannot be touched or moved cannot be said to be capable of a position or a situation. This is, of course, self-evident but apart from an occasional assertion the courts have not felt constrained by the logic of the matter and for a number of purposes they have stated rules to give a debt that characteristic which it lacks: a physical location.

The history in the eighteenth century of attorneys and solicitors—those who “practiced the forms or ‘mechanics’ of the law”—was first investigated in depth in Robert Robson's monograph of 1959. More recently, and following upon Geoffrey Holmes's suggestive survey of the lawyers in Augustan England, articles by M. Miles and A. Aylett have enlarged our knowledge of the social origins and geographical distribution of attorneys over the century as a whole and offered detailed analyses of attorneys' business in the West Riding and Cheshire during the latter half of the century.

The growth of royal justice in England consisted in part in the development of writs to begin proceedings in royal, county, or seignorial court. In the late twelfth and thirteenth centuries the King's court seldom created entirely new substantive rules and entitlements. Rather, the growth of royal justice consisted in the reinstitutionalisation of customary norms and entitlements in the legal mechanism of royal government. The available writs and the rules governing their use—especially writs which began proceedings directly in the King's court—constituted the structure of royal justice in that they determined which norms and entitlements would be shaped in the King's court and would have the power and authority of royal government behind them. Bracton's ideal that there ought to be a writ for every case requiring a remedy motivated the proliferation of royal writs—both the creation of new writs and the division of existing writs into two or more variants—from the forty-five writs found in Glanvill (1187–9) to the 886 writs found in an early fourteenth-century register of writs. Each new writ brought a new social situation within the ken of royal government or changed the terms in which royal government recognised and enforced social norms. The division of a single writ into two or more variants meant a refinement of the legal structure. Changes in the rules governing the use of a writ also changed the interaction between royal government and social life. The reinstitutionalisation of customary norms and entitlements created additional subjects for argument. In addition to the customary norms as recognised in the King's court, persons could also argue about the writs and rules of the King's court itself. Substantive issues could thus be suppressed and transposed into procedural issues that deter-mined the boundaries to the royal judicial power to affirm and to effectuate customary norms. In 1176, the King asserted royal jurisdiction over the customary entitlement known as dower. This essay traces the development of the writs of dower from their creation to Chapter 49 of the Statute of Westminster I (1275), which changed the rule for using thepraecipe writ of dower.

Overreaching, as the doctrine is now understood, is the process whereby a purchaser of property takes it free from any interests or powers, which attach instead to the proceeds of sale. Dispositions of trust property and conveyances by mortgagees, by personal representatives and under an order of the court may all overreach equitable interests. A lease granted by a mortgagor may overreach the rights of the mortgagee. This article is concerned primarily with dispositions of trust property and in particular those by trustees for sale of land. It seeks to demonstrate that the concept of overreaching is wider than is supposed. Two principal arguments are advanced. The first is that overreaching is a necessary concomitant of a power of disposition. A transaction made by a person within the dispositive powers conferred upon him will overreach equitable interests in that property, but ultra vires dispositions will not, and the transferee with notice will take the property subject to those interests. The second argument is that the draftsman of the 1925 property legislation fully appreciated the true nature of overreaching, and attempted to employ it as an essential part of his scheme for the facilitation of conveyancing. His intentions have not been appreciated in practice, and his carefully constructed scheme has been misapplied. The article considers critically recent proposals for reform from the Law Commission, and in particular the emphasis which those proposals give to the protection of the rights of persons in actual occupation. It will be suggested that reform might be more effectively achieved by employing the essentials of the scheme constructed by the draftsman of the 1925 legislation.