The centenary of Maine’s death prompts the questions: why is he remembered and what is his significance for us today? In part the answer is simple. He wrote well, and his books such as Ancient Law are a pleasure to read. It is frankly a relief to turn to his works after reading the remarkable but laboured chapters of that other nineteenth century jurist, John Austin (1 790-1859).

But going beyond his style and assessing his intellectual merits and the modern uses of his ideas is a more complicated matter. If his jurisprudential ideas are compared with those of, say, Bentham and Austin it is clear that there is an initial contrast in the way their respective theories are categorised. When the latter two thinkers are considered it is useful to refer to Benthamite and Austinian forms of jurisprudence.

It is often assumed that a promise is not legally enforceable unless, as a necessary though not sufficient condition, the promise is morally ‘obligatory’ or ‘binding’. If this assumption is correct, or can be shown to be tenable, highly interesting and important things follow for both legal and contract theory. Promise-keeping emerges as a moral obligation before it is a legal one, the legal duty becoming but a sanctionable extension of the moral obligation, its continuation so to speak by other means. There is thus no fundamental break separating moral from legal promises; for even a legal promise, particularly or most visibly one not covered by existing authority, cannot be fully justified as to why it ought to be kept without support from moral grounds. In the first three sections we therefore consider the moral reasons we may advance in support of an obligation to keep promises. In the last two sections we try to relate these moral considerations more specifically to contract law.

The recent litigation arising out of the Spycatcher affair was bound by the very nature of the issues at stake to be controversial; yet whatever view is to be taken of the rights and wrongs behind these issues one aspect of the litigation that was always likely to give rise to difficulties and to leave the common lawyers open to criticism was the conceptual framework in which these issues were handled. Ought serious constitutional questions like press freedom - questions that involve not just the public ‘interest’, but also the public’s ‘right’ to information in a democracy - to be debated at the level ofprivate ownership? Indeed is it actually rational to treat a government body, in relation to another government body or to the press, as if it were a private citizen entitled to the same rights (for example a ‘right to privacy) the human legal subject?

This article examines a number of propositions about law and government with which lawyers and legal theorists are familiar. It argues that what are often said to be the ends of constitutional government are vague, and that what are said to be the best means of achieving them are underspecified or impossible. When civil liberty is allowed to rest in this state it is unsafe. To the extent that civil liberty is theorised it certainly casts a shadow upon the practical world of politics, and generates expectations. Often, however, when we suppose something like it to have been realised, a closer investigation reveals something quite different, namely benign government.

The issue addressed here is that of understanding and giving meaning to mens rea concepts in the criminal law; I look in particular at intention and recklessness. The point made is that the controversy surrounding the proper meaning and understanding of these two concepts - a dispute about their appropriate contours - cannot be solved in the manner so far assumed. It follows that it is a vain hope to expect clear, unambiguous and non-controversial formulations of these concepts.

The argument has a three-fold structure. First, it is suggested that we are locked into this controversy whether (i) we insist that our mem rea concepts do, and should, bear the same meaning they have in ordinary non-legal discourse; or (ii) we insist that such concepts do, and should, bear a technical meaning, distinct from whatever ordinary meaning they may have, which is better suited to the requirements of the criminal law. These are the two traditional strategies used in attempting to solve any controversy about the contours of mens rea concepts and I will show how they are potentially controversial.