Judges and Professors – Ships passing in the night?

Ships by Night, by Alistair Young (lostajy) on FlickrLord Neuberger, outgoing Master of the Rolls in the England and Wales Court of Appeal and incoming President of the United Kingdom Supreme Court, delivered a lecture under the above title at the Max Planck Institute for Comparative and International Private Law in Hamburg on 9 July last. The paper has just been published on the judiciary website (pdf). Picking up where Baroness Hale left off in “Judgment Writing in the Supreme Court” (pdf | html), his theme was the nature of the relationship between the bench and the academy.

He began with the observation that, the relationship between judges and academics had long been that of ships passing in the night. Historically, convention barred citation of works while their authors were still alive. In the Irish courts in the not too distant past, this convention was still alive and well. I remember discussing a case with a then-serving but now-retired judge. He commented that he had found something I had written “quite useful” (or something equally droll). And he added – matter-of-factly – that he didn’t cite me because I wasn’t dead! I must confess that I didn’t find that comment particularly useful at all.

Neuberger’s tale is about the gradual decline of this convention. By the middle of the 20th century, it was being ignored by the courts and sidestepped by counsel with the courts’ connivance. By the century’s end, a genuine dialogue had developed between the bench and the academy, with judges and scholars influencing each other openly and honestly in a constructive partnership. There is now a fruitful discussion and cross-fertilisation between the bench and the academy, as part of a legal, judicial, culture which seeks to do justice.

Jack Beatson, about whom I blogged last week on his elevation to the Court of Appeal, has participated in this discussion with distinction as both academic and judge. In 1983, Robert Goff (then just appointed to the Court of Appeal, later Senior Lord of Appeal in Ordinary (Senior Law Lord) as Baron Goff of Chieveley) argued that the search for legal principle had to be conducted through a partnership between the courts and the law schools (“The Search for Principle” (1983) 69 Proceedings of the British Academy 169). For Neuberger, this is just as well:

The trouble with the conventional approach of the English judiciary to academic writing under a common law system is that the law either stultifies or it develops in an intellectually incoherent way. Common law judges risk falling into one of two traps. The first is to stick unimaginatively and unthinkingly to the principles and rule of the old cases despite great social, moral and technological changes, thereby throwing the law into disrepute as being completely out of touch and irrelevant. Alternatively, judges are tempted into deciding cases by what they see as the fair result, thereby throwing the law into disrepute because of intellectual vacuity and practical uncertainty. … In Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555, [1956] UKHL 6 (20 December 1956) the majority of the House of Lords managed to be castigated for both failings.

[On the other hand] judges … will often benefit from the perspective brought by academic experts to a particular subject and the rigorous examination which they have subjected it to. That perspective can often provoke ideas, which can be tested in court, but which would not otherwise have come to light in proceedings. In that way we improve the means by which, to borrow from Oliver Wendell Holmes, we ensure that the law develops through experience, in this case as wider experience than would be the case if we confined ourselves to statute and strict precedent.

It is pretty much the same conclusion that Peter Birks reached in his provocative and compelling article “Adjudication and interpretation in the common law: a century of change” (1994) 14 Legal Studies 156. BIrks was influential in the development of the modern law of restitution for unjust enrichment, and Neuberger presents that development as a good example of fruitful dialogue between the bench and the academy:

What might be described as an informal partnership between bench, bar and academia helped to breathe life into an area of English law which had for too long languished under-developed and constrained by the mistakes of the past – or perhaps constrained by judicial errors of the past.

Indeed, the issues discussed in my two previous posts, relating to restitution from public authorities, commenced with Birks’ powerful and influential article “Restitution From the Executive. A Tercentenary Footnote to the Bill of Rights” in Paul Finn (ed) Essays on Restitution (Law Book Company, Sydney, 1990) 164, which influenced Lord Goff in Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 (HL) (pdf), and which continues to influence the post-Woolwich cases. Indeed, in the most recent case on the issue in the UK Supreme Court, the article continues to be relied upon (see the FII case [2012] UKSC 19 (23 May 2012) [17] (Lord Hope), [74] (Lord Walker), [199] (Lord Sumption, dissenting)). These developments demonstrate that judicial and academic ships no longer pass silently by each other in the night. Instead, they are vessels in the same fleet, sailing together, working in collaboration to reach the same destination – the principled development of the law.

I think this is a thoroughly good process, but I can’t help but wonder what my now-retired judicial interlocutor would have made of all this.

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