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I thought readers might find the following paper of interest. Hat tip to Registrar Baister!
LORD NEUBERGER OF ABBOTSBURY, MASTER OF THE ROLLS
JUDGES AND PROFESSORS – SHIPS PASSING IN THE NIGHT?
MAX PLANCK INSTITUTE, HAMBURG
9 JULY 2012
In his poem The Theologian’s Tale Henry Wadsworth Longfellow captured the nature of the relationship between two people while one of them awaits the other’s answer to a marriage proposal. He described them, their situation and perhaps the human condition generally, in nautical terms. For him they were,
‘Ships that pass in the night, and speak each other in passing,
Only a signal shown and a distant voice in the darkness;
So on the ocean of life we pass and speak one another,
Only a look and a voice, then darkness again and a silence.2’
For a long time the relationship between judges and academics in England and Wales (which, for convenience and out of no disrespect for the Welsh, I shall refer to as ‘England’) was that of ships passing in the night; ships that merely occasionally spoke to each other, with distant voices, before returning to silence.
1 I wish to thank John Sorabji for all his help in preparing this lecture. I would also like to thank Dr Walter Doralt for bringing to light the two articles by Alexandra Braun which have informed aspects of this lecture.
2 H. W. Longfellow, The Theologian’s Tale: Elizabeth in Tales of a Wayside Inn at IV.
In this we have traditionally differed from the approach taken by most other jurisdictions, a point remarked on by the late and lamented UK Supreme Court judge, Lord Rodger in 2010,when he observed how
‘In German-speaking countries, where academics are king, the judges often quote extensively from literature. Indeed, it sometimes looks as if they cannot write a clause, far less a whole sentence, without inserting some citation in brackets. Such judgments [he went on to say] are criticised by both practitioners and – perhaps rather churlishly – by academics themselves. The criticism is that judgments of that kind do not appear to be giving a clear and authoritative statement of the court’s own view of the law.3’
No fleeting look or voice over a cold sea there. The relationship is altogether closer and seemingly far more deferential, at least on the judges’ side, than has historically been the case in England, or as Lord Rodger also observed, in Italy where judges are subject to a statutory prohibition on referring to academic works in their judgments4.
In this paper I would like to examine the nature of the relationship between judge and academic in England. In particular I want to focus on the way in which that relationship has changed over time, and how now judge and academic may no longer be seen as ships passing in the night. In examining this relationship I want to begin by examining the past, before moving on to the present, and I will then turn to a possible future.
3 A. Rodger, Judges and Academics in the United Kingdom, (2010) University of Queensland Law Review 29 at 32.
4 A. Rodger, ibid at 32.
(ii) The traditional common law convention
5 For a discussion see, B. Komar, Text-Books as Authority in Anglo-American Law, (1923) 11 California Law Review 397; A. Braun, Burying the Living? The Citation of Legal Writings in English Courts, (2010) The American Journal of Comparative Law [Vol. 58] 27; A. Braun, Judges and Academics: Features of a Partnership, in J Lee (ed), From House of Lords to Supreme Court. Judges, Jurists and the Process of Judging (Hart Publishing, Oxford 2010).
6 N. Duxbury, Jurists and Judges: An Essay on Influence, (Hart) (2001) at 78.
The relationship between judge and scholar in England was, historically, anything but close. It was very much a case of signals shown and distant voices in the dark. It was nowhere better exemplified than through the common law’s sceptical approach to the citation of academic works in the courts. This approach had two aspects5. First, by convention, it barred citation of such works while their authors were still alive. Secondly, even if an author was dead, his book had to have achieved a degree of respectability before it could be cited as authority. However, these rules were increasingly breached with the passage of time.
The first aspect has been described as the ‘better read when dead6’ approach. The first recorded instance of its operation appears to be in Taylor v Curtis (1816). Gibbs CJ, sitting in the Court of Common Pleas, refused to take note of ‘two books of high estimation’ on the grounds that the author of each book was alive: once the author was dead, his book could be cited, at least if it was accepted as authoritative by the courts. This may well have been the first reported reference to the convention, but it is clear from the report of counsel’s submissions in the case that the convention was well-established by then.
The convention also applied in the courts of equity, as is clear from a judgment three years later, given by one of my predecessors as Master of the Rolls, Sir Thomas Plumer in Turner v Reynard (1819). He said this,
7 (1819) 1 J & W 39, 44; 37 ER 290, 292 cited in Braun, Burying the Living at 30.
8 See for instance Forgery Act 1861 s36.
‘I called for authorities in support of [a point], but in all the books on the duties of executors, and in all the cases on the subject, not a solitary instance is to be found. There is indeed a hint in general terms in the work of a living writer (Toller on Executors, 426); but it is no authority.7’
Sir Samuel Toller fell foul of the prohibition on the living. History does not seem to record whether any judge accepted that he obtained authoritative status when he died two years later.
By the mid-19th century the convention was well-established. It was, for instance, restated some 33 years after Turner, in the case of R v Ion, a criminal prosecution for the crime of uttering, which was the common law crime of passing off a forgery8. Counsel for the prisoner, as a defendant was then known, sought to rely on Archbold’s Criminal Pleading, which is now the leading authority on criminal pleading, evidence and practice. At the time it was still in its infancy. Counsel started his reliance on it by attempting to charm the bench, pointing out that one of the judges in front of him had ‘formerly edited’ Archbold and then moved rapidly on to describe its present editor, a Mr Welsby, as someone who can be ‘cited as an authority.’
The immediate response from the Bench was not positive. Pollock CB brusquely responded: ‘Not yet an authority’. Counsel tried again, making the point that, ‘It is no doubt a rule that a writer on law is not to be considered an authority in his lifetime. The only exception to the rule, perhaps, is the case of Justice Story.’ Coleridge J interjected ‘Story is dead.’ This was perhaps a little beside the point: counsel’s submission was not that Story could be cited because he was dead, but
9 (1852) 2 Den 475, 488; 169 ER 588, 594 cited in G. Nicholls, Legal Periodicals and the Supreme Court of Canada, (1950) The Canadian Bar Review [Vol. XXVIII] 422 at 426.
10 (1887) 37 ChD 51, 54.
11 Greenlands v Wilmhurst (1913) 29 TLR 685, 687.
12 Re Ryder & Steadman’s Contract  2 Ch 62, 74.
13 P. H. Winfield, The Chief Sources of English Legal History (1925) at 255 – 256, cited in Nicholls (1950) at 428.
that he had been cited during his lifetime. Cresswell J added how he was sure Mr Welsby had done a good job in abstracting the principles. A good job he might have done, but that was not sufficient. Lord Campbell CJ finished off by saying that, while his opinion of Mr Welsby was one of ‘sincere respect’, that did not transform him into a citable authority. The simple fact was that Mr Welsby was still alive, and no authority9.
Citation of the living was perhaps most famously deprecated by Kekewich J in Union Bank v Munster in 188710. He noted with much regret how the citation of textbooks by authors who were still alive was increasing, despite the rule prohibiting such citation. It was much more preferable in his view if the convention was enforced not ignored. The convention was subsequently restated in a judgment by Vaughan Williams LJ in 191311, and once more by another of my predecessors as Master of the Rolls, Lord Hanworth, in a judgment in 192712.
Judges deprecated citation of living scholars, but scholars went along with it. Thus, the great Professor Winfield noted two years prior to Lord Hanworth’s judicial reassertion of the convention, how ‘Counsel are not entitled to quote living writers as authorities for a proposition. . .13’ The late highpoint of the convention came a few short years later, when in Donoghue v Stevenson, Lord Buckmaster in the House of Lords refused to countenance citation of living writers, saying this,
14  AC 562, 567.
15 Komar, (1923) at 399, 410.
16 Jones v Jones (1814) 3 Dow 1, 15; 3 Eng. Rep. 969.
17 Gifford v Yarborough (1828) 5 Bing. 163, 167; 130 Eng. Rep. 703 cited in Komar (1922) at 410.
‘. . . the work of living authors, however deservedly eminent, cannot be used as authority, though the opinions they express may demand attention.14’
So much for the first aspect of the convention. Its second aspect related to the citation of those who had lived. Death did not ensure that anyone was capable of citation as an authority. It might have been a necessary condition fir citation in court, but it was not a sufficient one.
An author could be cited, and perhaps cited regularly, if he was dead provided that his work had obtained the patina of authority which great age and numerous instances of judicial approval (something of a Catch 22, one might have thought: if an author could only be cited if he had been previously approved in a judgment, how did he first get to be cited?). If you were a Bracton, Fleta, Britton, Coke or Finch you could be cited15. It, of course, helped if you had also been a judge, rather than a practitioner or academic. Indeed, the early 19th century Lord Chancellor, Lord Eldon said this in 1814, ‘One who held no judicial situation could not regularly be mentioned as an authority.16 This view was reiterated by Chief Justice Best, while explaining why Bracton could be cited as an authority,
‘Bracton wrote on the law of England, and the situation which he filled, namely, that of Chief Justice in the reign of Henry the Third [the 12th century], gives great authority to his writings.17’
(Perhaps this was the answer to the Catch-22: only those who had been famous judges could be cited before their works had been approved in a judgment.)
18 Cholmondeley v Clinton (1820) 2 Jac & W 1, 151 – 152; 37 Eng. Rep. 527, 581 – 582; Duxbury (2001) at 78 suggests that Plumer MR adopted an inconsistent approach to the convention against the living here. What might better be said is that this was an exception to the general rule, given the length of time the work had been in print and the court’s long acceptance of it as authoritative due to its accuracy and merit pace Komar (1922) at 399ff.
19 See Nicholls (1950) at 426; Braun, Burying the Living at 32; Komar, at 403 – 404
20 Komar (1922) at 404.
It would be wrong to pretend that there was complete consistency of judicial approach to this convention. The point can be appreciated from a judgment of Plumer MR a year after he gave judgment in Turner v Renard (where he refused to look at Toller’s book on executors, as Toller was still alive). In Cholmondeley v Clinton (1820) he referred, without naming it, to a famous work – the Treatise on the Pleadings in Suits in the Court of Chancery by English Bill – by Lord Redesdale, the one-time Lord Chancellor of Ireland. He did so with approval, implying that, at least in the case of Lord Redesdale, there was no difference between a living author and a dead one; Lord Redesdale was very much still alive at the time. While Plumer MR did not rely on it, he noted it was authoritative18.
Lord Redesdale was not a unique case, as was noted somewhat sardonically by a Mr Denison, the case reporter, who published the decision in the utterance case of R v Ion. His footnote to the case report stated that the convention barring citation of the living was one ‘more honoured in the breach than in the observance.’ He identified five authors, including Story (who had been a judge) who Mr Justice Coleridge understood to be dead, who had been cited during their lifetimes19. The exception was not limited to judges or former judges however. Eminent living practitioners could also come within the scope of the exception. Tidd’s Practice, Sugden on Powers, as well as Redesdale’s Treatise, were all cited while their authors were alive and in practice at the Bar20.
21 Duxbury (2001) at 66ff
The exception to the convention did not however assist many scholars. To fall within its scope, it appears that either one had to be an eminent judge or practitioner or one’s work had to have been approved as authoritative by the legal profession and the courts. That could be said for Story and Redesdale, whose works had long been in print and had been universally approved of by bench and bar. It could not however be said of Sir Samuel Toller. He may have been an eminent practitioner in 1819 – as he was Attorney-General of Madras in India – but as Plumer MR had it he was no authority.
(iii) Reasons for the convention
So perhaps rather than consisting of two rules, the convention ran to three: first, a general prohibition on citation of the living; secondly, a general requirement that to be cited when dead an author had to either have been a judge or practitioner and their work had to be hallowed by Time’s patina of authority; and thirdly, a living judge or eminent practitioner could, exceptionally, be cited as long as their work was accepted by the court as of authoritative stature. Why did English courts keep scholarly works at a distance, as distant voices, only to be heard if the author was a judge or practitioner?
Duxbury in his monograph on the relationship between Judge and Jurist identified eight grounds which might be said to justify the convention21. Nicholl in a trenchant and clearly correct critique of an attempt in 1950 by the then Chief Justice of Canada to breathe new life into the convention had previously
22 Nicholls (1950)
23 (1889) 16 RPC 577
24 J. Phillips, Sir Arthur Kekewich: A Study in Intellectual Property Litigation 1886 – 1907,  EIPR 335 at 337. Kekewich J’s decision in the case was, perhaps ironically given the nature of the anecdote, reversed in the Court of Appeal and upheld in the House of Lords.
25 Nicholl (1950) at 429.
identified some further reasons22. Some of these reasons are more convincing than others, but none of them is entirely convincing. I want to highlight some of them.
Quite possibly the least credible rationale, much ridiculed by Nicholl, was put forward by Kekewich J in Union Bank v Munster. We might not be too surprised that Kekewich J’s reasoning was not all that robust. He is often put forward as a candidate for the worst High Court judge in England in the 19th century (although North J ran him hard). He is famously known for a submission by the appellant’s counsel, said to have been made when his decision in British Motor Syndicate Ltd v J.E.H. Andrews & Co Ltd (1889)23, was subject to appeal before the Court of Appeal. The submission wa
‘This, my Lords, is an appeal from a decision of Kekewich J. – but there are other grounds upon which my client relies.24’
Kekewich J’s rationale for upholding the first aspect of the convention was that it was simply not possible to ask a textbook writer for clarification. Unlike an advocate, who could be questioned about his or her submissions, the court could not do the same with the writer of a book or article. This is a hopeless reason, given that deceased authors could be cited. As Nicholl put it, ‘one may be permitted to wonder whether it is easier to ask a dead than a living author what he means.25’ Perhaps Kekewich J’s approach was like that of the prophetess
26 Book of Judges, 4.5, ‘And she dwelt under the palm tree of Deborah, between Ramah and Bethel in mount Ephraim: and the children of Israel came up to her for judgment.’
27 Nicholl (1950) at 430.
28 Nicholl (1950) at 430.
Deborah. Perhaps he too could sit under a palm tree and await divine inspiration on the meaning of a dead author’s words as he dispensed justice26.
Another equally poor rationale was that the courts should be suspicious of living writers as they might write with the express desire to influence the outcome of a case27. Again, this is hopeless. If it were right, the court should not listen to the parties or their advocates. This rationale also ignores the fact that the court’s role is to assess the merits of arguments. If an argument stands up to scrutiny and critical examination, the fact that it was written with an eye to influencing the court is neither here nor there. A weak case is made no stronger by adding a glittering academic name to it. Ad Verecundiam arguments are of as little use in court as are ad hominem arguments. As Nicholl put it, the real question is ‘what weight is to be given’ to an argument28. That is as true of an article written by a living as a dead academic, a submission made by Counsel or a line of argument in Bracton, Coke or Dicey.
Another particularly unconvincing reason rests on the claim that the growth of reputable law reporting in the 18th century reduced the need for judicial reliance on textbooks. The growth of law reporting at that time is undeniable. But that cannot logically justify the conclusion: it might explain the fact that reliance on law reports could supplant reliance on textbooks and academic commentaries but it simply cannot justify a convention barring commentary citation. It certainly cannot explain a convention barring citation of commentaries whose authors are
29 Duxbury (2001) at 71.
still alive. Furthermore, during the 18th century, there was a distinct growth in the publication of practitioner’s texts, so one might almost just as well say that the growth of textbook writing in the 18th century should have justified banning the citation of judicial decisions.
Another rationale, which is a little more convincing, rests on the claim that England and Wales was a late developer in so far as academic law was concerned. The Vinerian Chair of Law in Oxford did not exist before 1758. University law faculties were the product of late Victorian development – Oxford and Cambridge only opened their law faculties in the 1870s, for instance. Our great jurists – Dicey, Anson, Maitland – were equally the product of that late Victorian flourishing. And it wasn’t until the mid-20th century that academic law really flourished. As Duxbury put it, before that time it was ‘a fairly moribund, amateurish profession29.’ In such circumstances, it is perhaps not altogether surprising that judges were reluctant to take notice of academic authority.
So the point was that as there was no historically significant, academic legal culture, (i) there was no culture of judges referring to academic treatises, and (ii) such academic texts as existed were not of sufficient age to have gained authoritative status. While there is some little force in this, there is a pretty fundamental difference between a reluctance to cite academic works on this ground and the development of a rule barring citation of works by living authors. At its highest, the lack of an academic legal culture might explain judicial wariness about permitting living academics’ works to be cited, or about affording authoritative status to the works of dead academics. But wariness is a long way
30 Nicholls (1950) at 426ff.
from prohibition. The absence of a robust academic culture does not, on its own, explain such a development; not least as the convention did not even arise in respect of the work of academics. Works such as Odgers on Libel, Archbold, and Fry on Specific Performance30, were written by leading practitioners and judges. The convention barred their citation whilst their authors were alive. Anyway, this does not explain why death would transform works such as these into citable authorities.
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