I propose to present to you some reflections on the impact which constitutions have had on the law governing the relations between management and labour. In many parts of the world that impact has been very considerable, and continues to be so.

It may be thought that an analysis of the role thus played by constitutions may perhaps be of absorbing interest to a comparative lawyer, but that it cannot have much practical significance in the United Kingdom. People who argue that way are obviously inclined to agree with De Tocqueville who, when asked what the British Constitution was, said that it did not exist. If the British Constitution does not exist, it may be argued, what is the good of giving in an English University an Inaugural Lecture about the role constitutions may play in the development of labour law?

Control of the abuse of discretion is arguably the central and most controversial part of judicial review of administrative action. Within abuse of discretion, review of improper purposes is probably the most difficult ground to define and expound. It is not seen easily as a separate and unique concept. There is no clear approach to it as a mechanism of review. On the other hand, review for the consideration of irrelevant factors appears to offer greater certainty. There has been, therefore, a tendency to bring both grounds together in terms of the latter. As a result, the line between improper purposes and irrelevant considerations has become blurred, and often they are seen as identical. A number of questions arise from this. Are the two grounds of review different? What is their content? How are they to be manipulated? Is the apparently expansive import of Padfield v. Minister of Agriculture, Fisheries and Food a significant development? If so, is it a shift in the right direction? Problems in review for abuse of discretion stem from several sources. The problems compound one another in a context of limited legal structures and judicial analysis. Abuse of discretion is too easily regarded as a “grab-bag” from which a ground of review can always be found to suit the conclusion sought to be reached on the merits. Judicial review is a flexible tool but each ground has a limited use. “Improper purposes” and “irrelevant factors” exist as distinct phrases because each represents a separate mode of analysis which is particularly useful in a given situation.

In English law the defence of provocation operates to reduce to manslaughter a killing which would otherwise be murder. The defence is not available on any charge other than murder: provocation is generally regarded as a matter which goes in mitigation of sentence, being insufficiently fundamental to qualify as a complete defence. Even in murder cases the defence ought only to succeed where the jury is left in reasonable doubt that the accused killed during a sudden loss of self-control caused by provocation which was enough to make a reasonable man do as he did, a test which has been criticised as unduly restrictive. The objective standard, embodied in the requirement “enough to make a reasonable man do as he did,” has attracted almost unremitting criticism from the writers. What function is the objective standard intended to perform? Does it perform this function successfully? In searching for the answers to these questions, the two factors isolated by Aristotle—the role of the provoker in causing the incident and the role of perceived injustice in weakening self-restraint —foreshadow the lines of inquiry.

We are all familiar with the paradox that while medieval English society set great store in promises and their performance, the law of its central courts paid them little attention. The marital arrangement, which could be undone only rarely; the system we have learned to call feudalism, infidelity to which was sometimes called felony; the heavy emphasis in medieval literature on keeping faith: all these support the proposition that an important tenet of medieval morality was that promises ought to be kept. Yet the common law of promises was curiously retarded, thus creating what seems an odd gap between law and morality.