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In his recent book, The Left and Rights, Tom Campbell argues that the concept of an individual right has no special or exclusive connection with the political philosophy of liberalism, or with the legal order of a liberal society. The belief that there is some such connection has been shared by both the revolutionary left and the libertarian right. Campbell argues that both groups falsely attribute to the concept of a right features that are contingently associated with the particular rights enforced in bourgeois society. A socialist society, he argues, would have good reason to accord and respect certain individual rights even though these might differ in content, and perhaps in form, from the classic rights of liberal individualism.
It would be the height of naivety to suppose that philosophical analysis of contested concepts could, of itself, result in the reconciliation of competing ideologies or achieve anything very much by way of removing the underlying divergencies of vested interests which express themselves in social and international conflict. The ‘correct’ analysis of the concept of rights is not a panacea for world peace.’ On the other hand, conceptual confusion can generate unnecessary misunderstandings and lead to misplaced disputes which are hardly conducive to the search for such common ground as exists between conflicting groups and nations and it is surely a stage on the way to such agreement as is possible to identify the genuine as opposed to the merely linguistic areas of disagreement, even if this may produce nothing beyond the agreement to differ.
It has been aptly observed that ‘Of all crimes manslaughter appears to afford most difficulties of definition’. More recently, the Court of Criminal Appeal in England has made the comment: ‘There has never been a complete and satisfactory definition of manslaughter.’
The complexity of definition is associated with a peculiar feature of manslaughter, in that the essential mental requisite consists of the accused's state of mind in relation to his physical act rather than to a particular consequence of the actus reus. The crime of manslaughter postulates mew Tea only in the special sense of intention to commit the act which brings about the consequence of death, even though this consequence may not have been desired or even foreseen by the accused. Thus, the intention to cause death or serious injury is not necessarily a requirement of liability for manslaughter.
The proposition that ‘Restitution is based on unjust enrichment’ is usually the first that a student of Restitution is presented with. It is a claim at several different levels: as to the terminology we should use in discussing Restitution; as to the sort of rules the subject contains; and as to the way these rules have been developing or should develop in the future. Nor is this confusion of claims particularly surprising. Much of the work of the academic lawyer consists of interpreting the judgements of the higher courts; it is not really very odd when those courts’ ambivalent approach to whether they are making the law, or simply applying it, rubs off. ‘Restitution is based on unjust enrichment’ is really a collection of subsidiary propositions about Restitution; and it is clear that, of those who believe that Restitution is so based, not all would subscribe to every one of the subsidiary propositions.
Whereas it was before dispersed and hidden, Goff and Jones have brought Restitution together and made it prominent. Lacking the generations of textbooks which have organised other subjects, its case law will for many years attract debate as to how best it should be arranged and how it relates to other categories. Many writers think that the key is to be found in the ideas and language of unjust enrichment. But the lock does not immediately turn. Hedley's paper says that it will not. Indeed he thinks that any hope of an elegant theory, or, which may be the same thing, an integrated and economical classification, is vain, since Restitution is more various, empirical, and endemically muddled than the unjust enrichment camp dares to admit. His paper valuably compels a re-examination of fundamental questions.
Normally one person is not obliged to confer a benefit on another unless he has promised to do so. Even if he did promise to confer the benefit, he will not normally be liable for failing to confer it if the promisee gave no consideration for the promise. Moreover even if the promisee did give consideration, a third party, who did not, but for whom the benefit was intended, cannot sue. In principle the same applies where a party provides another with some article or service. The recipient cannot complain that the article or service is not good enough, unless the other party promised, for consideration, to provide the thing or service, and what is provided falls below the quality promised. So actions based on the failure to confer a benefit, or sufficient benefit, normally lie in contract.