Mill's Influence on Feminist Thought

The influence of J.S. Millon the course taken by feminism and the related causes of female suffrage, equal access to education, and women's property rights cannot be overstated. Mill believed in what modern commentators would describe as feminism that was influenced (or limited) by the prejudices of his own times. For example, Mill assumes at various points in his arguments in favour of equality that women would "naturally" only seek employment within the home. He also noted in his various campaigns for female suffrage that the constituency that ought to be permitted to vote were those women who otherwise qualified under the exiting English law – property owners. However, it is the power of Mill's words and the intellectual sweep of his arguments that render them compelling today. Two specific examples from Mill make the powerful connection between legalism as a rights enforcement device and the argument expressed by West.

The two examples provided here are each taken from speeches delivered by Mill in the House of Commons; the first, concerning his support for female suffrage was delivered in 1866, and the second speech concerned the debates on the Reform Bill in 1867. A compelling point made in the 1866 address in support of female suffrage was the fact that the British sovereign was female. Mill appreciated that the ability to secure female suffrage constituted the proverbial thin edge of the wedge, and it did not inevitably create circumstances of female equality of opportunity with that of men. Mill had the ability to recognise that rights driven law, and its enforcement over time, would sufficiently alter the social landscape whereby females would be regarded as individuals who were entitled to rights; liberal legalism, although Mill never employed this expression, meant the law was a legitimate instrument for social change.

The second Mill speech is notable for his advocacy that the term 'man' as used in the 18667 Reform Bill be replaced with 'person'. Mill noted in the course of his address that "…The interests of all women are safe in the hands of their fathers, husbands, and brothers, who have the same interest with them, and not only know, far better than they do, what is good for them, but care much more for them than they care for themselves. Sir, this is exactly what is said of all unrepresented classes." Mill extended his position concerning female suffrage to suggest that "at some time or other" there would be universal suffrage, with no property qualification imposed on citizens' ability to vote.Mill may be regarded as an incrementalist, one who was content to see the cause of female equality move forward, if only in small stages. Mill believed in equality, not the principles of what has come to be known as radical feminism. 

The 'Ticking Bomb' Problem

Art 3 of the Geneva Conventions ban all forms of cruel, inhuman or degrading treatment as well as torture.  The Rome Statute classified torture as a crime against humanity. Torture was prohibited by international law and it is illegal in most the countries. Torture the terrorist is unethical, but in those circumstances it is the 'right thing to do' if its purpose is to elicit information that could save innocent lives. Terrorism Act 2000 allows police to detain terrorist suspects for questioning for up to 7 days. Police in UK are vested with considerable prerogative and “moderate physical power” in emergency circumstances and in matters needing solution. However, This was considered as a violation of Human Rights under Art 3 of ECHR. 

Nearly half of all Americans thought the torture of suspected terrorists was sometimes justified in a BBC survey. After the September 11th attacks, the Bush administration classifying torture techniques such as waterboarding as "alternative interrogation procedures.

Is torture ever justified? The Israel government classified relatively mild torture techniques as "moderate physical pressure" rather than torture and it is allowed to be use as a “last resort”.  (The Israeli Supreme Court overturned this policy in 1999) Israel's Supreme Court ruled that torture could never be justified, even in the case of a ticking bomb. One objection to allow moderate physical pressure is the difficulty of knowing where to draw the line.At Abu Ghraib, U.S. military personnel and CIA interrogators were revealed to have gone several steps further, implementing forms of torture that involved lasting physical damage, sexual humiliation, and sometimes death.The use of torture has not been adequately justified, but it would be excused in any of the extreme cases cited by torture proponents.  

'Equity will not assist a volunteer and that equity will not perfect an imperfect gift....'

It is apparent that subsequent case law has sought to eliminate such principle by introducing various exceptions which allow incomplete gifts to be perfected. There has nonetheless been much criticism and debate in regards to this area of the law since it is felt on the one hand, that the scope is for exceptions is being widened too far, whilst it is argued on the other that it allows for situations to be perfected which would otherwise be unconscionable to the parties. What is clear nonetheless is that the exceptions have advanced over the years since the principle was enunciated in Milroy and it is inevitable that it will continue to advance and thus create a topic for criticisms and debate.

The general rule in equity is that it cannot ‘perfect and imperfect’ gift as was demonstrated in the case of Milroy v Lord[1] where it was held that “equity will not assist a volunteer and so equity will not enforce gratuitous promises or perfect and imperfect gift.” Nevertheless, there are in fact exceptions to this maxim as demonstrated in the case of Re Rose[2] where it was established that equity will in fact be capable of perfecting an imperfect gift if it is established that the donor had done all that can be expected of him to transfer the legal title, yet the transfer was in fact delayed by the routine operation of the law. As such, in circumstances such as these the gift will be capable of being effective. Thus, it is evident that such maxim is capable of being lifted in certain instances and it will in fact depend entirely upon the facts of the case and the circumstances in order to establish whether equity will be permitted to ‘perfect an imperfect gift.’ 

The principle in Re Rose has nonetheless been further enunciated in the case of T Choithram International SA v Pagarani[3] where it was again demonstrated that imperfect gifts in equity can in fact be made perfect on the circumstances. Here, it was held that “that a valid trust was created over that property even though the deceased person had not transferred the legal title in the trust property.” Accordingly, the rationale in Re Rose was taken in that it was demonstrated that the settler had done all that was necessary of him to do in transferring the trust property. In accordance, this case was an indication of the advancement of the principle and was seen to be a major step forward in its development and recognition. Thus, ensuing from this case Pennington v Waine[4] further revealed the Re Rose principle and held that a gift of shares could be perfected where the donor had in fact done everything which was necessary even though a share transfer form had not been effectuated.

Nevertheless, the decision in Pennington has been criticised by many for extending the Re Rose principle too far. It was argued by Hudson that; “Pennington v Waine is so evidently wrong since there is not even such a concatenation of circumstances as there was in Re Rose and there had not been completion of all of the formalities necessary for the transferor to have performed.”[5] He went on to further say that; “it is a nonsense to suggest that equity should compel the transfer since equity is purporting to transfer an equitable interest in circumstances in which there has not been a transfer of title at common law nor a specifically enforceable transfer of such title.”[6] Accordingly, it is clear that the decision in Pennington does purport to give courts of equity an “unfettered discretion as to whether a voluntary gift or trust should take effect with far reaching consequences for voluntary dispositions of property.”[7]

Nevertheless, not all feel that the decision in Pennington was wrong and may believe that it was in fact a welcoming step forward in the law regarding incomplete trusts and gifts. As put forward by McGhee; “it has given much greater scope for arguing that apparently incomplete gifts are nevertheless effective in equity”[8] and that “the case is another useful illustration of the power of equity to extend existing doctrine to do justice in the individual case but at the expense of certainty.”[9] He went on to further conclude that Pennington provides much that will be useful for those seeking to uphold gifts which are not formally complete. But although a donee can be advised in such circumstances that he may have a respectable argument that the gift is valid, it will be difficult to predict the chances of success and much seems to depend on how the court perceives the justice of the individual case.”[10] However, it seems obvious that McGhee would in fact agree with the decision in this case since he represented the successful party in the case.

Accordingly, it seems that the decision in Pennington will be open to much criticism or debate whether good or bad, yet it appears to have paved the way for some much needed clarification in the law. Since the decision in Milroy, there has been an array of case law opposing the maxim that ‘equity will not perfect and imperfect gift’ and it seems that the exceptions have in the majority of cases proven to adequate and welcoming. The Re Rose principle was in fact the foundation for such exceptions and since then it appears that there has and will continue to be cases where incomplete gifts are held to be valid. Nevertheless, such exceptions will not go without its critics and it is felt that the scope of incomplete gifts being perfected is opening too wide and as a result producing inconsistent and unjust decisions. Nevertheless, not all agree with such views and believe that the law in this area is in fact developing and that it is clear from the case law that whether an incomplete gift can in fact be perfected will depend entirely upon the facts and circumstances of the individual case. Yet, it is overall comprehensible that the law in regards to incomplete gifts has advanced over the years and will continue to so for as long as parties will be claiming for property of their loved ones.

[1] [1861-73 ] All ER Rep 783, 7 LT 178

[2] [1952] Ch 499

[3] [2001] 1 WLR 1

[4] [2002] 1 WLR 2075

[5] Hudson. A, Choithram and Pennington Discussed, Available [Online] at: www.alastairhudson.com/trustslaw/choithram andpenningtoncasenotes

[6] Ibid.

[7] Halliwell. M, Perfecting Imperfect Gifts and Trusts: Have we Reached the end of the Chancellor’s foot, Conveyancer and Property Lawyer, (2003).

[8] McGhee. J, The Recent Case of Pennington v Breen, Maitland Chambers, (2003), Available [Online] at: http://www.maitlandchambers.com/Files/Article/PDF/JMAllsfair.pdf

[9] Ibid.

[10] Ibid. 

Should a prisoner have the right to vote?

UK Prime Minister, David Cameron thinks that prisoners’ voting rights should be ignored and agreed that the crime committers  are incapable of voting in any parliamentary or local election, announcing: "I don't see any reason why prisoners should get the vote. This is not a situation I want this country to be in." but the courts are telling the UK government that they are required to lift the blanket ban on prisoners voting right and it was given a six months to do so or else they are going to be fined.[1]Since we do not remove prisoners' access to healthcare or we don't prevent them from practising their religion, therefore why should the government has decided to  impose a blanket ban on prisoner's right to vote? This issue was challenged  in Hirst v United Kingdom  by the European Court of Human Rights (ECHR), in which the court's judges objected to Britain's blanket ban on voting by those serving prison sentences.[2] The EU is always based on the values of human dignity, freedom, democracy, equality and respect for human rights, including the rights of persons belonging to minorities.[3] There it comes to raise the topic when we all knew  people serving a sentence of any length continue to contribute financially to society from within prison. They still pay tax on their savings, capital gains and any earnings they may receive during their sentence. If they are civically alive when it comes to financial contributions, they should be treated in the same way when it comes to enforce fundamental human rights. 


Comment

The right to vote is the cornerstone of a democracy and any laws that prevent anyone from voting could upset the political process in this country. However, looking it from Malaysia standpoint, voting is not compulsory and everyone has to register as an elector before we can take part in voting.The right to vote is governed by Art 119 of the Federal Constitution. UK constitution with regard to the right to vote is a very wide when compared to Malaysia very own constitution as Malaysia constitution is now stand in its own right and it is in the end of the wording of the constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principle of other constitution.[4]        


[1] Greens and MT v the UK(2011)53 EHRR 21, (2010) 160 NLJ 1685; 60041/08 (ECHR 23 NOVEMBER 2010).

[2] Hirst v United Kingdom (No 2) [2005] ECHR 681

[3] The Convention for the Protection of Human Rights and Fundamental Freedoms, Art 3, Protocol 1.

[4] Loh Koi Choon v Government of Malaysia [1977] 2ML J 187

Domestic Violence

S.1 of The Domestic Violence, Crimes and Victims Act 2004 (DVCVA), which came into force on 1st July 2007 introduced a fundamental change in the method by which breaches of non-molestation orders obtained under the Family Law Act of 1996 (FLA) are to be enforced. The section amended the provisions of section 42 of the FLA by inserting a new section 42A into that Act.

A leading article by Frances Gibb and Richard Ford, appearing in “The Times” newspaper on 14th April 2008 stated the following:

“Thousands of women are at risk of assault because new laws to curb domestic violence have backfired, deterring victims from seeking help, The Times has learnt.

  

Since legislation [DVCVA] was introduced in July to criminalise domestic abuse at least 5,000 women have failed to report violent partners, judges have claimed.”

The same article went on to point out the following:

“….battered wives, and sometimes husbands, are reluctant to seek an order for fear of giving their partners a criminal record and, potentially, a prison sentence of up to five years.

The judges’ concerns have prompted talks at the highest level between Jack Straw, the Justice Secretary, and Sir Mark Potter, President of the Family Division. The alarm was raised by both circuit judges and the Association of District Judges, whose members deal with domestic violence cases.

A spokesman for Sir Mark said: ‘The President is very concerned that, for whatever reason, the legislation appears to have led to a reduction rather than an increase in the protection afforded to victims of domestic violence as a result of the change of the law.’”

“Judge John Platt, a circuit judge with more than 20 years’ experience of domestic violence cases, has drawn up a report reflecting the judges’ views for the president. He told The Times that he estimated that the number of [mostly] women seeking non – molestation orders had fallen by between 25 and 30 per cent since July 2007.

Judges were doing their own informal surveys and ‘every judge I have spoken to thinks there has been a drop’, he said. In 2006 there had been 20,000 such applications – so a 25 per cent drop meant 5,000 women had not come forward to ask for the court’s protection. ‘Obviously this is a very worrying figure. Either offenders have changed their behaviour – which seems extremely unlikely – or the victims do not want to criminalise the perpetrators.’ Victims in a close relationship with a violent partner, who was perhaps the father of their children and the bread-winner, would not want them to have a criminal record, he added. ‘It’s human nature.’”

The article concluded by stating that:

“The Crown Prosecution Service denied that prosecutions had dropped. A spokesman said that the most recent figures showed that both numbers of cases and the conviction rate were up on previous years.” These concerns, expressed on behalf of relevant members of the judiciary, and the statistics raised by Judge Platt appear to bear out the concerns, worries and misgivings  expressed by a number of  family lawyers and practitioners.

UK Copyright vs. US Copyright.

The Copyright Act of 1976 and the Copyright, Designs and Patents Act 1988 were both designed to address copyright protection and give a statutory footing to the rights of intellectual property – right holders both in the UK and in the US. The US legislation enacted prior to the UK legislation remains the main basis for the law of copyright in the US, albeit it has been amended and extended on several occasions since its inception. At the time of its inception, it was intended to address the new technological advancements that were up and coming at the time, such as TV and radio[1]. It provides a term of protection of 28 years, with an option to extend this by another 28 years. The legislation makes codified provision for the transfer of copyrighted works which demands that copyright transfers are to be effected in a written instrument of transfer, much the same as is required of a transfer of other property rights. 

Under the US legislation, copyright protection is extended to “original works of authorship fixed in any tangible medium of expression, now known or later developed from what may be perceived, or otherwise communicated, either directly or indirectly or with the aid of a machine or device. The legislation defined what is meant by works of authorship and the reach of the legislation is thus extended to literary, musical, dramatic, pictorial works as well as sound recordings. The legislation protected what are defined in the legislation as “exclusive works”. These include a right to copy, create, sell, perform, and display the works to which copyright attaches. Additionally, the US legislation sets out on a statutory footing what is meant by the doctrine of “fair use”, i.e. when copyright is allowed to be qualified for the purposes of allowing people fair access to and use of it. These provisions are contained in section 107 of the legislation, and they provide that the “fair” use of copyright may not be deemed as a copyright infringement.

There are four factors that are to be considered when taking account of whether fair use may be shown, and the legislation provides that these measures may also be extended to unpublished works. These are additionally codified in the legislation and they are: the effect on the market of the use of the additional work, the nature of the copyrighted work, the purpose and character of the copyrighted work and the amount of the copyrighted work that has been used in all of the circumstances. The operation of the defence in the US may be illustrated by the case of Campbell et al v Acuff-Rose Music Inc. 510 US 569 (1994). The facts of the case were that a commercial parody that involved the use of a line from Roy Orbison’s tune “Pretty Woman” was held to be a fair use of the work. In reaching a decision on the case the definition of fair use was drawn on. Similarly in the case of Folsom v March 9 F Cas 342 (CCD Mass. 1841) the definition of fairness was specifically applied in order to ground a fair use defence.

The UK counterpart to the US legislation was enacted several years after the US legislation in 1988[2]. Like its US counterpart, it revokes of the antecedent laws that relate to copyright, where this comes into conflict with the terms of the new legislation. It extends to design rights also. The length of the period of protection is a much longer one by comparison to the US legislation – 70 years after the death of the original copyright owner, and unlike the US legislation the UK legislation does not have an interruption in this period whereby there is an onus on the copyright-holder to renew the period of protection that applies to the works in question. Although the legislation in the UK revoked all previous legislative enactments that it may conflict with, there is a considerable dearth of common law copyright principles that continue to operate, and some of these predate the enactment of the US legislation, notably the fair use doctrine which was in effect under the UK common law since the early 1900s. Like its US counterpart the UK legislation provides that works may be protected in various categories. These categories include artistic, literary and musical works, as well as sound recordings and TV productions. The UK legislation does in addition provide some categories that are excluded from copyright protection. Additionally, like its US counterpart the UK legislation codifies a regime for “fair use”. This regime is contained mostly in sections 29 and 30 of the Act, but extends to section 75 in the legislation. It provides a codified basis for the common law principles that were antecedent to the legislation, and requires that a fair dealing defence may be shown in response to any action for a breach of copyright. Specifically, the legislation allows that private study is encompassed within the doctrine of fair use. Other provisions are linked to a qualification of the use of the work, such as in section 30 where fair dealing may be raised in cases where the work has been cited for the purposes of criticising it or subjecting it to some form of review. Unlike its US counterpart, there is no definition of the word “fairness” in the UK legislation, albeit the common law that operated prior to the legislation did interpret the meaning of “fair” although this operated on a more or less case by case basis. Specifically the case of Hubbard v Vasper 91972) 2 QB 84 is widely perceived as one of the main, persuasive common law authorities on the question of what is meant by “fair” in the UK[3].

In summary therefore there are similarities and differences between the two statutory regimes. One of the most significant differences is that although both systems codify fair dealing defences, the US system has a more prospective approach to what is fair, by providing a definition of this. It may be argued that this key differences is significant for ideological, socio-legal and sociological reasons and this will be discussed in later sections of the essay which will address whether the absence of a proscriptive definition of fairness represents a weakness of the UK system.

[1] See also: Leong, S. (2007) Copyright Infringement in a Borderless World International Journal of Law and Information Technology 15 (38) 2007, pp. 2-3; Preston, P. and Flynn, R. (2000) Rethinking Universal Service: Citizenship, Consumption Norms and the Telephone. The Information Society 16(2) 91, pp. 5-6; Young, M. (2005) The Future of Universal Service. Does it Have One? International Journal of Law and IT 2005 13 188, pp. 4-5

[2] Holyoak, J. and Torremans, P. (1995) Intellectual Property Law. Butterworths. UK, p. 36-41; Bainbridge, D. (2003) Intellectual Property Longman. UK, p. 32-37; Bently, L. and Sherman, B. (2004) Intellectual Property Law. Oxford University Press. UK, p. 16-21; Dosi, G et al (1988) Technical Change and Economic Theory Pinter. UK, p. 17-20

[3] Contrast the discussions in Halsbury’s Laws of England and Wales 2006. Copyright, Design Patent and Related Rights “Nature of Copyright” (Vol. 9 2 Para. 3); Torremans, P. (2004) Copyright and Human Rights. Kluwer. The Netherlands, p. 96. See also. Macmillan, F. (2007) New Directions in Copyright Law. Elgar. UK, p. 118

About myself

Hi!  My name is Michelle Lau. I am a law graduate from Northumbria University in 2011. My decision to apply to study for a Masters in Law, focusing on international commercial law, has evolved, over many years, in tandem with both my academic and practical experience. My interest in the area of international commercial law has led me to wish to pursue a career as a practising lawyer, in a foreign lawyer firm, I wish to draw upon my knowledge of the international issues facing organisations, as well as my language skills, in order to have a successful long-term career in law.

Interacting with people and understanding their problems is a gift from living in a multicultural society like Malaysia. The cultural and racial diversity in Malaysia has taught me to be more understanding and open-minded to the feelings and thoughts of other people, regardless of their race, colour and beliefs. My aptitude to respect others, teamed up with my good judgment and sensible thinking, is evidently a necessity for my career in legal field need excellent communication skills.

Moreover, In order to gain a greater understanding of the role of the international commercial lawyer, I took an internship with LH Ting and Co, a firm based in Malaysia. The experience that I obtained in this internship was invaluable and this allowed me to gain a much greater understanding of legal processes, as well as being able to shadow solicitors, in a wide range of situations.

I became particularly interested in the issues associated with solving conflicts and how law can permeate a wide range of situations, both commercial and personal, on a day-to-day basis. This involvement has driven me to look to pursuing a Masters in Law, so that I can gain a much deeper understanding of the various different legal issues, prior to beginning a successful career in law.