When Pandora opened the box, disasters flew out of the box and escaped to human world. Pandora was scared and immediately shut the box, trapping hope within. Domination through rationalisation is equally disastrous. Therefore, Weber had left space for unpredictable, or irrational forces, to ensure that an element of instability was built into his idea of this developing rational machine so that some ‘hope’ can be preserved.

For Weber, the civilized modern found himself in a situation of rationality. The civilized, rational man was to be provided with the keys of knowledge, and as a consequence of knowing the structure of things, be free from the domination of ideology, of the falsehoods of tradition and custom. Freed from the bondage of false belief and hierarchies of feudal society, humanity would enter into a new age of enlightened reason. This freedom of culture could mean the potentiality for a more varied and exciting world than any previously existing in history.

Weber was however pessimistic. He saw the other side of the coin: The rational man would be committed to the task of visualising the true structure of the cosmos, but, as the price of using reason, he would be condemned to perform only the rational task and obey the outcome of formal calculation. As a consequence, the magic of life disappears into the irrational. Knowing the strength of social structure, man would not fight against the insurmountable. He would instead surrender to the destiny reason outlined for him.

Tomorrow excites us because it is unpredictable. A person who had truly mastered the art of divination, and, knowing that fate cannot be changed, would see no purpose and meaning to continue the voyage of life. The modern man would become trapped in a cage surrounded by iron bars of rationality. Man will be condemned to become a victim of calculation upon calculation, trapped by rational necessity.

To quote Weber: “For civilised man death has no meaning… because the individual life… placed into an infinite ‘progress’ according to its own immanent meaning should never come to an end; for there is always a further step ahead of one who stands in the march of progress. And no man who comes to die stand upon the peak which lies in infinity… Some peasant of the past, died ‘old and satiated with life’ because he stood in the organic cycle of life… his life… had given him what life had to offer… there remained no puzzles he might wish to solve; and therefore he could have had enough of life. Whereas civilised man, placed in the midst of the continuous enrichment of culture by ideas, knowledge and problems, may become ‘tired of life’ but not ’satiated with life’. He catches only the most minute part of what the life of the spirit beings forth ever anew, and what he seizes is always something provisional and not definitive, and therefore death for him is a meaningless occurence. And because death is meaningless, civilised life as such is meaningless; by its very ‘progressiveness’ it gives death the imprint of meaninglessness.”

The three procedures of rationalisation – the control of the world through calculation and the collection and recording of information; the systematisation of meaning and value into an overall consistent scheme; the methodological living of daily life according to rules – entailed the destruction and stifling of a great deal of the richness of human life.

Under substantive rationality there are certain ideological positions, things and values which are simply accepted as true and fit a picture of the cosmos so accepted, but the moderns argue that everything has to be subjected to the test of sceptical reason, and if something cannot survive the test, we reject those beliefs. The consequence of this is that substantive rationality will slowly disappear. Formal rationality will play a bigger role, where the nature of the conduct or morality of the ends to be achieved is downplayed, and all that matters is that the appropriate ‘logical train of reasoning’ has been complied with.

Weber’s model of three ‘ideal types’ of legitimate Herrschaft, which consists of traditional authority, charismatic authority and rational-legal authority, said that rational-legal authority depends on: a legal code accepted on grounds of expediency or rational values; a logically consistent system of abstract rules which are applied to particular cases; the typical person in authority occupies an ‘office’; the person obeyed authority does so only by virtue of his or her membership of the corporate group, and what is obeyed is the law; and obedience is given to officials not as individuals, but to the impersonal order they represent. The legality enables a special kind of domination: where it appears as if the dominated willed the conduct themselves.

Weber thought that everyday life would be dominated by the functional roles in the structures of the economic system. A person’s daily routines would be shaped by the freedom allowed by their role, and their hopes and dreams would be a reflection of their education and the specific cultural pressures to which their class was subjected. The only non-structural happiness Weber foresaw lay in the anti-rational spaces: the individual would find solace in personal relationships, romantic love and escapist music, experience of art, and cultivation of a limited private sphere. Weber warned that our individuality was becoming increasingly striped from us as we were disciplined into a society of mass conformity.

However, while the search for a full societal rationality gave us procedure and rational calculation, it was found upon a myth: a myth that the idea that everything was in principle knowable, while in ‘truth’ we could never know everything. If the metaphysics of life could not be understood, a whole set of desires and concerns of the individual agent could not be contained in this model. Weber presaged a tendency of his times: the Holocaust and the camps of Stalin – which reflected fear of the fate of individuality in a society dominated by calculation, mass consumption and mass standardisation. Weber left space for irrational element, and one such key element is charisma.

Charismatic authority is sharply opposed to rational. It knows no formal and regulated appointment or dismissal, no career, advancement or salary, no supervisory or appeals body, no local or purely technical jurisdiction, and no permanent institutions in the manner of bureaucratic agencies. Charisma is self-determined and sets its own limits. Its bearer seizes the task for which he is destined and demands that others obey and follow him by virtue of his mission. If those to whom he feels sent do not recognise him, his claim collapses; if they recognise him, he is their master as long as he ‘proves’ hiself. However, he does not derive his claims from the will of his followers, in the manner of an election; rather, it is their duty to recognise his charisma. Charismatic authority is naturally unstable. The rational edifice contains an underbelly of irrationality, with the ever-present potentiality of charisma to break the routines of the structure. charisma is a disruptive force leading to unascertainable consequences.

Weber is ambiguous concerning this irrational element – charisma. He had indeed explained how modern law can have both rational and irrational elements, but it is hard to say whether he had succeeded in explaining how modern law can have both rational and irrational elements.

Can it be said that: Weber, having witnessed the unification of Germany under Bismarck, the emergence of the modern German state founded in part at least upon the strength of Prussian hegemony, the phenomenal growth of industrialisation in Germany, the failed attempt to create a German empire and the culmination of great power rivalry in the catastrophe of the First World War that led Weber to conclude that modern law cannot consist of only rational element (however ideal it is), hence he left space for irrational element in his idea? I think, it is possible. Weber had failed to explain how modern law can consist of only rational element, therefore irrational element is included. I am of the opinion that he had picture modern law consisting of only rational element to work perfectly where modern law is like a slot-machine justice: pop in the facts and out comes the verdict as the legal calculator logically applies the relevant rules. However this machine did not work well in reality: Adolf Hitler pops in the Jews and out comes a subhuman material, which are ’socially dead beings, beings who were seen to be owed few if any moral obligations by Germans and who were conceived of as being thoroughly dishonourable, indeed incapable of bearing honour.’ (Goldhagen)

Weber had explained how modern law can have both rational and irrational elements, but I do not think he had succeeded. He had not explained how irrational elements like jury can counter-balance the negative aspects of the rational elements. Like the Chinese concept of yin and yang, rational element and irrational element play equally important role in modern law and have to be balanced against each other. Had Weber succeeded in explaining how modern law can have both elements, his view of modern man would, perhaps, not be so pessimistic.

I find interesting and something that I can’t help but to agree:

“That man over there says women need to be helped into

carriages, and lifted over ditches, and to have the best places

everywhere. Nobody ever helps me into carriages, or over mud

puddles, or gives me the best place! And ain’t I a woman?

Look at me! Look at my arm! I have ploughed, and planted,

and gathered into barns, and no man could head me! And ain’t

I a woman? I could work as much and eat as much as a man –

when I could get it – and bear the lash as well! And ain’t I a

woman? I have born 13 children, and seen most of them sold

off to slavery, and when I cried out with my mother’s grief,

none but Jesus heard me! And ain’t I a woman?”

(Address by Sojourner Truth, 1851, quoted in Bartlett and

Kennedy, 1991:256)

I personally think males only give special treatments to those

females who act and look like the kind of females that males

have in mind.

You wear a skirt, you wear make up, you look hot; the males

want you in their bedroom; so they give you special treatment.

You wear slacks, you are stronger than the men; you turn them

off; they treat you like a man.

You act like a man, and the man will treat you like a man too,

because giving you special treatment will not provide them

with sexual pleasure. I think the men are very well-versed with

the felicific calculus.

Which is quite unfair to us ladies, in my opinion, because no

matter how we act like a male, there are still biological

differences between male and female. You don’t lose your

breasts and vagina and grow a penis overnight just because

you act like a male. Or, to be more direct like MacKinnon, the

f**kee does not turn into f**kor just because she behaves like

a f**kor. The biological differences remain.

On top of that, the harshness of life forces us to behave like a

man in order to survive.

But on the other hand, I can’t help but to think: what is our

nature if we were not educated to behave like a lady? Is it in

our nature to behave like a lady?

I still don’t have an answer for that question.

  Oxford Advanced Learner’s Dictionary (7^th Edition) defined ‘standard’ as ‘a level of quality, especially one that people think is acceptable.’ The doctrine of ‘suspicious circumstances’ had indeed turn out to be an acceptable way to attack a will where fraud or undue influence is suspected, even though it may not be an appropriate way, because Rule 40a of the Contentious Probate Rules 1862 made it clear that if someone wanted to challenge a will on the ground that there had been undue influence or fraud, he had to do so openly. A plea of lack of knowledge and approval could not be used as a cloak for a plea of undue influence or fraud.

  However, it is difficult to prove fault. The burden of proof and the standard of proof are both very high. Furthermore, if someone wanted to challenge a will on the ground of undue influence of fraud, he bears the burden of proving it. He also bears the cost. On the other hand, if he challenge a will on the ground of lack of knowledge and approval, his task will be easier. The propounder will bear the burden of proof. The cost comes from the estate. Therefore, the doctrine of ‘suspicious circumstance’ is the standard way for a person to challenge the will on the ground of fraud or undue influence.

  This standard way of challenging a will is not problem-free. The problem with such a fraudulent pleading is that when a person uses the doctrine of ‘suspicious circumstances’ but brings in evidence of fraud, it is possible that the judge will reject the evidence on the grounds that the evidence is irrelevant. Such fraudulent pleading might also make it difficult, or even impossible, for the propounder to defend himself, because he has no idea that evidence of fraud will be brought in. Therefore, the usage of doctrine of ‘suspicious circumstances’ may be acceptable (or probably desirable) for the challenger, but it does not appear to be acceptable to the courts and the propounder.

Pauline Ridge opined in her article, ‘Equitable Undue Influence and Will’: “Oddly it is said that if the circumstances surrounding the execution of a will directly raise issues of probate undue influence or fraud, they cannot be alleged as a suspicious circumstance, that is under cover of a plea of want of knowledge and approval.” On the other hand, some judges acknowledge that facts relevant to the presence of fraud or probate undue influence will probably also constitute suspicious circumstance, and that to exclude completely such factors from the suspicious circumstance rule would drastically reduce its operation. If this judicial acceptance of facts suggesting probate undue influence in support of a suspicious circumstance claim became the uniform approach this would go some way to ameliorating the impact that results from the difficulties of proving probate influence directly.

  I agree with Pauline Ridge because Oxford Advanced Learner’s Dictionary defined ‘suspicious’ as: ‘feeling that somebody has done something wrong, illegal or dishonest, without having any proof’, ‘not willing or able to trust something.’ Fraud or undue influence are clearly ‘something wrong or illegal’, because in a court of probate undue influence means coercion (Lord Penzance in Hall v Hall) and fraud consists of deceiving the testator (White v White & Cato).

  Pauline Ridge also said that there is no restriction on what may constitute a suspicious circumstance. Pauline Ridge said that evidence that a beneficiary under the will was involved in its preparation is one example. Suspicious circumstances may also be used to cast doubt on the testator’s testamentary capacity. Hence, doctrine of ‘suspicious circumstance’s can be applied or used for various situations, including fraud or undue influence.

  Wintle v Nye is a case where plea of lack of knowledge and approval is used as a cloak for what was, in substance, a plea of fraud. Barnard J had made reference back to Barry v Butlin but this is inappropriate, because Barry v Butlin was not a case where the person challenging the will had lacked knowledge and approval. However, the reference to ‘suspicious circumstances’ in Barry v Butlin was perfectly rational because anyone looking at the facts of that case and having read the pleadings in that case had to be suspicious as to whether the beneficiaries under the will had been involved in improper conduct.

  The problem with Wintle v Nye is that no allegation of impropriety was made by Wintle against Nye. What were they supposed to be suspicious of? The expression ‘suspicious circumstances’ implies a suspicion of wrongdoing by someone. I agree with Kerridge that it is inappropriate to raise ‘suspicious circumstances’ unless the person challenging the will has alleged fraud, or undue influence, or both. Although Wintle won the case, but the manner of his victory is questionable, because the verdict of House of Lords was that there should be a retrial, but Nye surrendered at this stage, partly because the popular press were portraying him as a villain.

  We can see from Wintle v Nye that the doctrine of ‘suspicious circumstances’ is indeed the standard way. Ten years after Wintle v Nye, Scarman J said, obiter, in In the Estate of Fuld (dec’d), that it was ‘preferable’ for those challenging wills to do so on the basis of lack of knowledge and approval. Furthermore, Part 57 of the Civil Procedure Rules 1998 make it easier to raise issues of fraud and undue influence under the cover of a plea of lack of knowledge and approval.

  However, it is difficult to challenge wills by using this doctrine. In Ewing v Bennett, a will made by a solicitor for a very deaf woman, who suffered from dizziness and memory loss and in early stages of senile dementia was upheld. In Re Dabbs, a will prepared on principal beneficiary’s computer for a testator who died in circumstances which caused the jury to return a verdict of unlawful death was also upheld. These two cases demonstrate that although the doctrine is the standard way, it does not mean that it is the best and easiest way. Cases like Buckenham v Dickenson, d’Eye v Avery, Richards v Allan and Re Rowinska, although probate had been refused on the basis of lack of knowledge and approval, but these are the cases where the evidence against the will was overwhelming.

  However, the approach of Wwintle v Nye was followed in Fuller v Strum, even htough in this case it was not easy to see what the trial judge was referring to when he talked about a suspicion. The confusion was emphasized when the trial judge referred to Lord Hatherley’s phrase in Fulton v Andrew, where he described the burden which the law imposes on a person who has been instrumental in procuring a will under which he takes a benefit as ‘the onus of showing the righteousness of the transaction.’ Chadwick LJ was of the view that trial judge is wrong because he did not have a license to refuse probate to a document he disapproved; but it is suggested that Lord Hatherley meant to refer to suspicions of fraud or undue influence.

  In Sherrington v Sherrington, the honest plea would have been undue influence. The plea of lack of knowledge and approval is a dishonest plea. The Court of Appeal thought it was ‘fanciful’ to suggest that the testator did not know and approve of its contents.

Despite being the standard way, a fraudulent pleading is still a fraudulent pleading. There are various possible reform in this area, such as a presumption of fraud or undue influence when someone prepare a will for a testator under which he took a significant benefit; adopt the approach taken in Israel and render void a gift made to a beneficiary (or close relative of beneficiary) who is involved in preparation of a will; or the courts apply the costs rules differently. Kerridge however argues that what is needed is a mix of reforms. As part of a reform package, he proposes legislative provision for the execution of a will before an independent ‘notary’ or solicitor. If this was done, a presumption of capacity and knowledge and approval would apply. The independent solicitor or notary would ‘try to ensure that there was no hint of pressure or of fraud and that the testator knew exactly what he was doing.’ I think this would be a more suitable and appropriate method of dealing with the problems we currently face in applying the doctrine of ‘suspicious circumstances’, hence I agree with Pauline Ridge that this is a very attractive reform.

The minority of the society who make mutual wills are like the people who head to McDonald when they are hungry: all they are concerned with are their needs, and they never thought of the consequences. However, the fault is not entirely theirs. The hungry man, if advised by a sensible nutritionist, would probably eat something else to fill up his tummy. The man who wants to make mutual will, if he had received sensible advise, he would think twice before making mutual will, and if he actually decided to make mutual will, he would have made sure all issues are addressed properly and appropriately, to ensure no regrets.

Therefore, the statement in the question is only correct if the will draftman is negligent; if the will draftman fails to address all relevant issues, such as: possible future events, remarriage of the survivor, birth of children to the survivor, property intended to be bound by the agreement, and powers intended to be conferred on the survivor to dispose of such property during lifetime.

Sadly, in many cases we notice that, the fact that mutuals wills had failed to address relevant issues, coupled with uncertainty in this area of law, had to many who are involved in making mutual wills end up being involved in litigation.

Mutual will is the brainchild of equity. It is made pursuant to an agreement between two or more persons to dispose some or all of their property upon death and to execute wills pursuant to the agreement, with both parties agreeing that the survivor is to be bound by the agreement when the binding event occurs. Prima facie, this doctrine is harmless. It is the perfect doctrine for people who live in fairytale: where people fell in love at first sight and sees each other as life partner; where when people say “till death do us apart”, they actually meant what they said. For people like this, doctrine of mutual will is the perfect instrument for them to provide for their children upon their death. Since this doctrine is not limited to married couple, it is also the perfect instrument for friends or family members who trust each other so much that they want to provide for someone that both of them care about.

It is saddening to note that we live in an era where divorce rate never cease to increase. this renders the current doctrine of mutual will problematic. Doctrine of mutual will is now seen as the devil that makes people fall into the abyss of litigation.

To quote Lord Camden in Dufour v Pereira: “A mutual will is a revocable act. It may be revoked by joint consent clearly. By one only, if he gives notice, I can admit. But to affirm that the survivor (who has deluded his partner into this will upon the faith and persuasion that he would perform his part) may legally recall his contract, either secretly during the joint lives, or after at his pleasure, I cannot allow.”

From this quote we can see that the doctrine of mutual will is not a “cruel” doctrine where you can never free yourself from its clutches. You can revoke, as long as you give notice. The only problem is when one party died and the survivor who remarries now want to revoke the mutual will. It will be impossible for him to give notice to someone who is going to lie underground forever. In such a scenario, he would not be able to free himself from the clutches of mutual will. If he revokes, he will be guilty of fraud. As Carnwarth J suggested in Re Goodchild, had the wills been mutual, the floating trust which would have been created would not have been destroyed by remarriage of the second testator after the death of the first.

This would be a problem for the survivor who wants to remarry. His earlier decision of making a mutual will now looks like an act that invites litigation. The survivor will shout “unfair” and “unjust”. On the other hand, the beneficiary, presumably the child, especially an underage one, will be clapping hands. This is becase the survivor who refuses to carry out the agreement will become a trustee automatically. This constructive trust takes effect when the binding effect occurs. The case of Re Dale, which decided that the doctrine of mutual wills may apply even where the survivor receives no benefit under the will of the first party to die, implies that the binding event must be when the first party died leaving his mutual will unrevoked. This would mean that a beneficiary under the mutual wills, who survives the first but predeceases the second testator, does not lose his benefit by lapse. The purpose of doctrine of mutual will is preserved: the rights and interests of the beneficiary are protected.

Furthermore, where the doctrine of mutual wills applies, it has the merit of making the arrangement enforceable by any beneficiary under the constructive trust: a contract not to revoke is enforceable by the contracting parties and may only be enforced by a beneficiary if he can bring himself within the provisions of the Contracts (Rights of Third Parties) Act 1999, which applies to contracts entered into on or after May 11, 2000.

The survivor would say that the consequences are too harsh. This is because although technically speaking, a mutual will is revocable like any other will, and therefore the constructive trust imposed does not stop the survivor from revoking his mutual will; the practical effect os the constructive trust is that it frustrates the unconscionable revocation of a mutual will. In reality, this would mean that the survivor cannot revoke the mutual will, because every attempt to revoke is doomed to failure.

Pacts must be respected. The survivor had already expressed his will to be bound by such agreement. Even though the law of succession bestows upon a person freedom to deal with property, by making a mutual will, a person is trading this freedom for a security and guarantee that his children will get something from him, regardless of any possible future event. Furthermore, parents have the duty to provide for their children.

The survivor can mitigate the harshness of the law by determning which property will be bound by the constructive trust through construction of the agreement. The law did not make it a requirement that all properties, including after-acquired property, must be disposed through mutual will when a person decides to make a mutual will. The survivor is given the freedom to decide which property they want to dispose through mutual will. If this is done properly, the act of making a mutual will is not an act that invited litigation.

Furthermore, the act of making mutual will cannot be said as an act that invited litigation. This is because the burden of proof is high in establishing intention on the part of the survivor that he is to be bound by the terms of the mutual will. In Re Oldham, a case concerning identical wills executed on the same day, Astbury J had said that: “the fact that two wills were made in identical terms does not connote beyond that of so making it.” Similarly, in Re Cleaver, the court held that mere honourable engagement between parties is not sufficient to show mutual will. There must be clear and satisfactory evidence on balance of probabilities. In the Estate of Heys held that proof can be from a declaration in the will, or from irrebutable extrinsic evidence.

Following Healey v Brown, it cannot be said that this area of law holds harsh consequences for the survivor because the court was bound by Re Goodchild to confine any constructive trust imposed only to the proerty received by the second testator from the first testator, and could not impose any trust on the second testator’s own property. Thus, strictly speaking, the survivor’s freedom to deal with his property is not taken away from him.

Therefore, the doctrine of mutual will should not be condemned for being an act that invites liltigation just because of negligence of the will draftsman. It is the failure of the professionals to give good advice that cause people who make mutual wills rarely thought through all the implication. If it is properly recorded in the wills themselves provision for possible future events, such as remarriage of the survivor or birth of children to the survivor, to make mutual will will be quite a sensible thing to do, since it shows how responsible the parents are towards the children.

In order to come up with a natural law theory that is good and beneficial, it is of utmost importance to first decide on the definition of “natural”. The word “natural” here refers to human’s nature. I will attempt to define it in a general, simple way. My definition will be something like the house in Aquinas’ analogy of the architect: my definition will only provide the framework or structure of the natural law “house”. It does not specify how wide the scope of natural law “door” be, and things like that.

For me, I disagree with what Thomas Hobbes said in Leviathan, Chapter XIII: that human’s life in their natural condition is “solitary, poor, nasty, brutish and short.” I see human’s nature from the perspective of what we need as an infant to keep us alive, and what are the common characteristics we have when we grew up, with these basic necessities consistently provided to us during the period when we grow up.

 Basically, we need air, food, water, shelter and clothes to survive. Assuming that we live in utopia where everyone grow up with these necessities provided to us. We will not be having a human capacity and readiness to hurt others, as opposed to what Hart termed as human vulnerability under his minimum content of morality. We will be bored of merely surviving. We will seek to improve our lives in every aspect that we can. I agree with Hart, who follows Protagoras and Hobbes by putting survival of human society as the necessary and basic aim. When human have the ability and means to survive, they start looking for something better, which is morality of aspiration, a term introduced by Fuller, which means morality of the “good life, of excellence, of the fullest realization of human powers”.

This “good life” should consist of Finnis’ seven basic values: knowledge, play, life, aesthetic  experience, sociability, practical reasonableness and religion (the value of seeking to understand man’s place in the universe).

Therefore, to survive and flourish are human’s goal, or in Aristotle’s term, telos. Anything human do, they are doing it to survive and flourish – not for short term, but for long term. It is human’s nature that we all desire to live long and prosper. This is the reason why a wise person will avoid doing something that will harm others: karma exists – what comes around goes around.

I agree with Cicero and Aquinas  (to a certain extent) that natural law is discoverable by reason. Some may argue that everyone has different way of reasoning. In my opinion, there is only one correct way of reasoning, and it is so simple that anyone who is willing to sit and think about it for some time would have surely thought of it. The correct, moral way of reasoning is: to think of a solution to whatever problem you are facing that will enable you to survive and live a good life without harming others. If we all reason like this, we will come to a conclusion that homosexual acts should not be labeled as “unnatural offence” in Malaysia since it is an activity that does not harm others; a woman should have right to abortion but this is subjected to which stage of pregnancy she is at and we need science to tell us when exactly does life begin; and Hitler’s reasoning that the Jews should be killed because they cause the German people to suffer financially is clearly wrong, because he is harming others.

I disagree with the view that natural law is derived by God, as claimed by Cicero and Aquinas. First of all, no one can be sure of the existence of God. Secondly, if natural law is derived by God, which God are we referring to? Is it Jesus? Is it Tuhan? Is it Buddha? Maybe at the end of the day, all these Gods are actually the same God, but right now, people all over the world are believing in all kind of different God, and we see some religious ones who would fight with others to defend their version of God. Wars are declared between Christians and Muslims in the name of religion. People who refuse to convert to Christian were killed during Christian Missionaries in South America. Human history has shown that the concept of God is subjective. Natural law theory and the meaning of natural cannot be subjective. It has to be objective. It needs to be something that is capable of being agreed upon.

I prefer Hugo Grotius’ view. He asserts that God himself is part of nature, and that even if God did not exist, natural law would have the same content. I agree that God should be taken out of the picture of natural law. After all, law is made by human for human. It is not made for God. We are governing ourselves in a way that best suits our nature – human’s nature, not God’s nature, or God’s perception of our nature.

Allow me to share a story to illustrate my point; a person passed by a temple saw Guanyin, God of Mercy, praying in the temple. He noticed that Guanyin was praying to a statue of Guanyin. Out of curiosity, this man asked Guanyin: “Why are you praying to yourself?” To which Guanyin replied: “Whatever problem I am facing, the only person who can help me is me myself. Therefore, I pray to myself.”

Isn’t that true in our context too? The belief that natural law comes from God stems from the fear to take up responsibilities for our actions. It is easier to say “I am doing this because of God” that to come up with a proper, logical, rational, morally correct explanation.  To quote Kelsen, the view that natural law comes from God satisfied a deeply-rooted need of the human mind, the need for justification. To justify the subjective value judgments, which emerge from the emotional element of his consciousness, man tries to present them as objective principles. Alf Ross had said something to similar effect: “By seeking justification for our actions in immutable principles outside ourselves, we try to relieve ourselves of the burden of responsibility.”

I think that with a slight modification on Gustav Radbruch’s two-stage test, it would be a reasonably beneficial version of natural law. Gustav Radbruch proposed that rules must satisfy the formal criteria of making law and the rules must be moral in that it must recognise individual freedom. I will start by modifying the moral filter first.

Moral should not be seen as recognizing individual freedom. My version of moral is: doing something that allows you to survive and live a good life without harming others. However, reality is not utopia. I agree with John Locke’s view that the state of nature of property was inadequately protected. This is self-evident: some countries have more resources than others due to geography. It is important for us to tolerate, compromise and respect each other. The state of limited resources means Radbruch’s view of what is moral does not have the capacity to achieve consensus in society. It goes against Dworkin’s conception of a morality that is objective. I think my version of moral, thought it could be criticized as being too general and too simple, is actually more capable of achieving consensus in society. (I think the only people who will disagree with my view on morality are the cannibals.)

I now move on to Radbruch’s requirements of formalities. For me, this formalities not only refer to the procedures of making law, but it should satisfy Fuller’s eight desideratas as well: law must be general, must be published, must not be retrospective, must be clear and intelligible, must be consistent, must be capable of achievement, must not be contradictory, must demonstrate a degree of congruence between the officials.

I believe that the word “natural” in natural law refers to both human’s nature and law’s natural characteristics. I think instead of saying Professor Hart and Fuller are shadow-boxing on different planes, we can say that most jurists who discussed natural law are shadow-boxing on different planes. By taking out the correct elements from all jurists, I’ve come to my natural law theory that, in my opinion, is the correct natural law. I see it as a simple theory capable of being understood by the majority of the public, a general theory capable of progressing with the progress of society, and, to use Cicero’s words: “right reason in agreement with Nature, of universal application, unchanging and everlasting”.

In your view what are the principal criticisms that can be made of the present law concerning liability in tort for psychiatric damage? If there were to be a statutory reform of the law in this area, what would be your principal recommendations?

  According to Stapleton, English law of liability for psychiatric illness is the area of law of tort where the “silliest” rule now prevail. Todd thinks the law is in a “dreadful mess.” Jones regarded it as a long list of anomalies.

  The problem in this area of law is that it lacks coherency and consistency. There are many conflicting principles. Psychiatric illness is not as identifiable as physical injury, and the fact that an alarming amount of potential claimants can arise from a single incident explains why it would be ridiculous to apply egg-shell skull rule to cases concerning psychiatric illness. Indeed there ought to be a different rule governing this area of law in order to avoid floodgates of litigation, but isn’t the rule of primary victim and secondary victim as ridiculous s applying egg-shell skull rule in this context?

  There are three questions regarding primary victim and secondary victim that are difficult to answer: who is primary victim, who is secondary victim, and why do we need to create a distinction between primary victim and secondary victim?

  Lord Lloyds defined primary victim as a person to whom physical injury is foreseeable. However, the test of reasonable foreseeability is already a pre-condition to recovery, along with the pre-condition of recognizable psychiatric illness. Why does a claimant need to overcome the same hurdle twice? Furthermore, recent cases such as Ferrell v Avon and Ferrell v Merton clearly extended the category of primary victim to cases where the claimant is not exposed to risk of physical injury.

  According to Lord Oliver in Alcock, primary victim is involved immediately as a participant in the event. However, in W x Essex CC, it is impossible to say that the parents were involved in the sexual abuse by the 15-year-old boy they fostered. It was their kids that were involved, not them; and they clearly did not fear for their safety – they feared for their kids’ safety instead. Still, they were classified as primary victims. On what basis precisely were they classified as primary victims?

  In CJD Litigation: Group B Plaintiffs v Medical Research Council, the claimants developed psychiatric condition upon realizing that treatment given to them could expose them to risk of developing CJD. The claimants obviously feared for their lives but the courts refused to classify them as primary victims. On what basis precisely were they refused to be classified as primary victims?

  Lord Oliver defined secondary victim as a person who is a passive and unwilling witness of injury caused to others. Lord Wilberforce said there are additional requirements that a secondary victim must satisfy: a close tie of love and affection between the claimant and the immediate victim, physical and temporal proximity, means of perception must be sight or hearing of the event or its immediate aftermath and the manner in which psychiatric illness was caused must be induced by shock.

  The problem here is: how is proximity and immediate aftermath defined? When an event occurred over several days, as in North Glamorgan NHS Trust v Walters, how do we determine when an event ends? If a mother knew that her daughter was kidnapped at 1pm. She started looking for her daughter at 1.20pm, after packing some essentials. She located the right building at 2.05pm but couldn’t determine which room, or which floor (assuming that she could not get help from the police due to negligence on the police’s part). She continued searching within the building, and at 2.25, she received a call from the kidnapper, asking her to hurry with the money (which she did not have), and let her listen to the screamings of her daughter due to torture. The kidnapper continued calling her after that, approximately once every ten minutes, each time her daughter’s screaming getting worse. At 2pm the kidnapper called again, saying they were impatient, and they would burn the girl. The mother heard the final screamings, followed by silence, and the kidnapper hung the phone. The mother never managed to find the corpse until 5.30pm. She suffered psychiatric illness. Will her claim succeed?

  The mother will face many hurdles. When does the event end? Does it end at 3pm, when her daughter was killed; or at 5.30pm, when the corpse was found; or at 2.25pm, when she first heard her daughter being tortured; or at 1pm, when she first realized her daughter was kidnapped? Precedents would say the event ended at 3pm, which means she found the corpse 2 ½ hours later – is this immediate enough to be considered as immediate aftermath? It is out of the 2 hour rule. The fact that she constantly receive calls listening to her daughter screaming raise another question: is her psychiatric illness shock induced? There are no clear guidelines as to how the additional proximity requirements are to be satisfied. The rules are complicated.

  Furthermore, the fact that rescuers, employees and bystanders are classified as secondary victims conflict with the additional proximity requirements: how can a close tie of love and affection between the claimant and the immediate victim be established in such cases? Wouldn’t it render the additional proximity requirements redundant?

  Dealing with psychiatric illness is like fighting a dragon which, each time its head is severed, grows a head that is more vicious than before. The fact that medical science is still struggling with this area indicates that new situations will always arise. The law must therefore be flexible in its approach and capable of adapting to new situations.

  The Law Commission Report proposed that for a claim to succeed, the plaintiff must be owed a duty of care by the defendant, and such duty would arise when either psychiatric or physical injury is reasonably foreseeable. There is no need for psychiatric injury to be adduced by shock. No definition will be given for psychiatric injury. No practical significance shall be attached to categorization of primary and secondary victim. There is no need to establish proximity in time and space. There should be a fixed list of relationship where a close tie of love and affection exist.

  I personally agree with most of Law Commission Report’s recommendations except for a few. I think psychiatric injury should be defined as psychiatric illnesses that are within the International Statistical Classification of Disease and Related Health Problems. Requirement for proximity in time and space should be an alternative requirement when a close tie of love and affection could not be established. This is to deal with rescuers, involuntary participants, employees, bystanders and other such claimants.

  The problem is, medical sciences is still at a developing stage in this area. So is the law. Is there really a need to freeze the law so soon? The law is still in its embryonic stages: why not wait and see what will happen as time goes by? The law might appear to be immature but so is the medical sciences. Until the scientists and researchers had come up with real explanations as to what causes psychiatric illnesses and how to measure the degree of illnesses, meanwhile, why not leave the matter to the good sense of judges to do justice?

In Re Vinogradoff, a war loan stock was transferred into the joint names of the transferor and her granddaughter, who was then 4 years old. Following her death, it was claimed that the child held the stock on resulting trust, reason being there was no evidence to establish an intention to make a gift.

  Surely this can’t be right. The fact that the granddaughter was only four at the time of the transfer would mean that no reasonable person would have intended to make such a young child a trustee. On top of that, by virtue of Law of Property Act 1925 made it clear that a person under the age of majority cannot be a trustee. Furthermore, since most gratuitous transfers are intended to be gifts, the presumption should give way to the slightest contrary evidence, and this include evidence of the surrounding circumstances and common sense inferences to be drawn thereform.

  I don’t understand how this decision can be justified.

  Esther is obviously very different from me. In the case of Esther Chan Pui Chan v Gilbert Leung Kam Ho, she became the subject of ridicule among her family and friends when her lover was convicted of bribery and sentenced to 3 years imprisonment.

  She even gave up her career. Imagine that.

  I personally don’t think love will make a person sacrifice so much, and apparently, that’s the view the court took. It was held that love alone would not have caused her to do all the things she did. She did it, partly because of love, partly because the man promised to marry her, and partly because he agreed to give her a share in his assets.

  Finding true love is important for us ladies, but if we have to choose between true love and financial security, the fact that we are living in a materialistic world where “money talks”, I am of the view that most girls will choose to give up true love and go for financial security.

  Of course, the best thing would be to have both!

Of course, for trivial things like, “I promise to take out the trash”, it is still okay to “accidentally forget” that we had promised so. Our parents get angry and scold us for a bit and get over it.

But what if you made a huge promise?

In Thompson v Foy, the daughter, upon her mother’s encouragement, built an extension to the family home and subsequently had the house transferred by the mother to the daughter. The daughter later mortgaged it to the bank. The mother’s initial plan was that part of the monies released will be given to her so she could start a new life in Spain. Of course, the daughter had failed to giver her mother the amount of money she was expecting.

One of the argument that arised here was that there was undue influence. As the mother had acted for family motives, had fully understood what she was doing and had the effect of transactions explained to her by the conveyancing solicitor, there was no undue influence.

I feel bad for the mother. It was a huge promise, the law should compel the daughter to honor the promise. Teensy weensy promises like “take out the trash” does not really attract criticism when they are not honoured, but the same could not be said for huge promises like this.

On the other hand, the purpose of land law is to make lands more marketable. It is not really about what is just and what is not. Which is why the law had preferred to protect the interest of purchasers, mortgagees, secured creditors, and so on…

Law can’t protect everyone. The best that law can do is to strike a balance between two competing interests.

Moral of the story? You yourself are in the best position to protect your rights. Law is not almighty.