The legal system is not a system of co-ordinate norms, found at one and the same level. Rather, it is a hierarchical structure of superordinate and subordinate legal norms, whose reciprocal relations are illuminated by the structural analysis undertaken by the Pure Theory of Law. The enquiry into the hierarchical structure of the legal system has significant consequences for the problem of interpretation. Interpretation is an intellectual activity accompanying the law-creating process as it moves from a higher level of the hierarchical structure to the lower level governed by this higher level. In the standard case, that of interpreting statutes, the question to be answered is how, in applying the general norm (the statute) to a concrete material fact, one is to arrive at a corresponding individual norm (a judicial decision or an administrative act).

A number of writers have invited attention to the fact that Kelsen, in a long and extraordinarily productive career, gave very little attention to questions of legal interpretation. Kelsen's younger colleague in the Vienna School of Legal Theory, Fritz Schreier, himself a legal philosopher of note, remarked in 1929 that the Vienna School had neglected interpretation. Michael Thaler made the same point a half century later, writing that Kelsen devoted himself ‘entirely to an elucidation of the object of interpretation’, that is to say, the legal norm itself, without providing any details on ‘ how interpretation is to be done’. Other recent writers go further: Klaus Adomeit dismisses Kelsen's theory of interpretation as ‘methodological nihilism’ Günther Winkler writes that Kelsen’s theory, although ‘simple’, is both ‘mistaken and misleading’. Indeed, most recent writers who have examined the Pure Theory of Law on questions of legal interpretation take a dim view of Kelsen's work in the field.

Whether or not the events of 1992 will have significant effects on the criminal law, there is good reason for looking hard at those respects in which English criminal laws differ in scope from those of our European neighbours and partners. One obvious example concerns crimes of omission, especially those founded on public duties. German law has long had offences of failing to render assistance to a person in peril and similar offences are to be found in other countries such as Denmark, Finland, Italy, Russia and Spain. These laws stand in contrast to the English position, which remains essentially the same as Sir James Fitzjames Stephen described it in 1883:

Aiding and abetting requires an ‘intention’ to assist the commission of the relevant offence. But what should ‘intention’ mean in this context? Does D have that intention just so long as she acts in a way which she knows will facilitate the commission of the offence which P intends to commit, or must she act in order to assist the commission of that offence?

On one view knowledge is sufficient, since D need only have ‘intended to do the acts which he knew to be capable of assisting or encouraging the commission of the crime’. A brewer who knowingly sells beer to someone who intends to resell it without a licence is guilty of aiding and abetting, as is a person who lends her car to someone who intends, she knows, to use it for a criminal venture.

At common law, the primary remedy for a successful plaintiff in an action in tort is an award of damages. The plaintiff must be put in the position in which he was before the tort was committed so far as money can do this. In many actions the principle of restitutio in integrum is a sufficient guide to the quantum of damages. But, in other cases, for example, actions for damages for personal injuries or defamation, a highly subjective element is involved. Neither personal injury nor loss of reputation is easily convertible by the use of any yardstick into an exact monetary figure.

In some cases, the damages are said to be ‘at large’. This signifies that the award is not limited to the pecuniary loss that can be precisely proved. Where damages are ‘at large’, as they are, for example, in assault, false imprisonment or malicious prosecution, trespass and defamation, they may be conveniently divided into three separate elements. First, there is the compensation for the actual harm caused to the plaintiff by the defendant; in addition to any pecuniary loss specifically proved, the assessment will involve putting a monetary value on the physical hurt in assault, on curtailment of liberty in false imprisonment or malicious prosecution, on injury to reputation in defamation and on inconvenience and disturbance in trespass.

Mounting concern over the burgeoning growth and impact of the tort of negligence has, as is well known, led to a backlash in recent years. The higher courts have re-imposed more restrictive approaches to the question of the duty of care, culminating in the assertion that ‘close and direct proximity’ is the pre–condition for the imposition of a duty of care, by the Privy Council in Yuen Kun Yeu v A–G .f Hong Kong. However, this attention, focussed on what are generally cases peripheral to the mainstream of tortious liability, has diverted many commentators away from the issue of breach of duty, which lies at the heart of the great preponderance of tortious litigation