The Inheritance Act and The Family

DOIhttp://doi.org/10.1111/j.1468-2230.1943.tb02880.x
Publication Date01 Dec 1943
AuthorJ. Unger
THE INHERITANCE ACT
AND
THE
FAMILY
215
act. We need
a
point of attachment in the positive law and
this
point of
attachment is in my submission the doctrine of non-recognition contained
in the law
of
nations. That point of attachment
is
more helpful,
as
it
furnishes
a
line of demarcation for the powers of the dispossessed govern-
ment which,
if
only based upon general considerations of expediency and
emergency, would be without distinct limits. Whether the Government,
having been compelled to transgress its powers by the invasion, has
to
seek
ratification once the occupation has come
to
an end is
a
question with which
1
am not concerned,
as
it
is a question not of international
law,
but of
municipal constitutional
V
I
sum up my views in the following principles-
I.
-4
government of a country invaded by the enemy remains the legiti-
mate government, even if
it
takes up residence abroad.
2.
Recognition of such
a
government by foreign governments
is
neces-
sary only in
so
far
as
the position of such government
is
not
in
full accord
with its constitutional law.
3.
The government needs the consent of the temtorial government
to exercise
its
sovereignty within the temtory
of
the latter, and can
act
on
foreign soil only in
so
far as that is covered by the consent of the territorial
government.
2.
The consent of the territorial government does not confer
to
the
dispossessed government any constitutional rights or powers they
do
not
possess
under their
own
constitutional law. On the other hand, in
so
far
as conditions provided for in the constitutional law cannot
be
complied
with owing to the occupation of the country by the enemy, a
dispossessed
government can act without being compelled
to
fulfil those conditions.
DR.
ERNST
WOLFF.
21
Under English law an Act
of
Indemnity
would
be
necessary
(Dicey,
Introduction
to
the Study
of
the
Law
of
the Constitution
(9th
ed.),
pp.
412-13).
THE INHERITANCE ACT
AND
THE
FAMILY
HE
unrestricted freedom
of
testation which existed in English law
until
1938
was one of
its
most distinguishing features.
It
was
remarkable also for the mystery surrounding its origin and the
uncertainty
as
to
its
social significance. Although connected with many
sides of social life, the relation of the rule
to
the family
is
clearly of out-
standing importance. This relation
is
one
of
action and reaction, the
course of legal development being determined by, and in turn affecting
the character of, the family. This article, which arose out of an investiga-
tion of the effect of modem social legislation on the family.' accordingly
deals separately with the question
of
the extent to which the abandonment
of
unrestricted freedom of testation can be attributed
to
changes
in the family, or in legal policy towards the family, and the question of
the effect on the family produced by the Inheritance (Family Provision)
l
This investigation
was
undertaken
for
the Social
Research
Division
of
the
London School
of
Economics and Political Science, and
this
article
is
published
by
kind permission
of
the Director and the Social
Research
Division
of
the
London
School
of
Economics and Political Science.
T
.Act,
1938.

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