Research in law: Professor Thomson and Lord Rodger speak

To two lectures on 18 and 20 May 2010, by Professor Joe Thomson and Lord Rodger of Earlsferry respectively, and coincidentally both were talking about research in law.

Professor Thomson appeared in Committee Room 2 of the Scottish Parliament, under the aegis of the Society of Legal Scholars, and attracted a big and stellar crowd.  He discussed the flourishing of legal research in Scots law during his time in academe, highlighted some of his favourite authors, and explained what he thought was good research – things that were clever yet readily understood because they were well-written.   Potential contributors to the Juridical Review, now edited by Professor Thomson, took careful notes.  Nothing already published was mentioned that failed the quality test, but Professor Thomson drew on his experience of being an RAE assessor to hint that too much was now seeing the light of print.  The art of the case note was dying, in his opinion (something not helped, your correspondent thought, by their absence from the Juridical Review, although of course the Edinburgh Law Review remains a bastion in this regard).  Professor Thomson also didn’t seem too keen on people doing PhDs, an Honours degree being quite enough to get you going as a researcher in his view: he noted that his first published pieces were his Edinburgh Honours essays.

Lord Rodger’s lecture, to the second ScoLAR conference of law PhD students held in Lecture Theatre 175 of the Edinburgh Law School Old College, pursued a rather different line, possibly because he took a DPhil at Oxford after his Glasgow LLB (he has often written and spoken about the importance for him of his experience working under the supervision of Professor David Daube).  Lord Rodger’s basic advice was to research what interested you, and not do things that other people told you were more relevant.  He explained that when at Oxford he told P S Atiyah that his research topic was in Roman law, the great man’s response was to suggest he ought instead to work on something more useful such as the book on Accidents, Compensation and the Law which Atiyah himself was turning out at the time.  Central to that was a project for a no-fault compensation scheme replacing the private law of tort, something now as dead as the dodo after a rather disastrous experiment with it in New Zealand; while Roman law and Lord Rodger’s interest in it, like the law of tort (and delict), continue blithely on.

Despite his rejection of a need for usefulness in academic research, Lord Rodger also talked about the relationship between such research in law and the courts.  While there was no obligation of the academic to write for the courts (or indeed for the courts to turn to the academics), those researchers who wanted to influence the judges should think more about what their targets needed, elucidation of areas (including legislation) where there had as yet been no cases.  With the increasing amount of human rights and EU law to be addressed, there was also a need to find a means of accessing and analysing how other jurisdictions were treating the same source material when similar issues came before them.  As Lord Rodger discussed this particular desideratum, your correspondent (who was chairing the lecture) couldn’t help thinking that in the realms of private law the task was one actually already performed by the Draft Common Frame of Reference.  But since Lord Rodger is resolutely hostile to the DCFR, your correspondent decided not to abuse the privilege of the chair by asking the question! 

Both occasions concluded in enjoyable social pleasantries, the food for thought suitably offset by wetting of the palate.