Lord Rodger of Earlsferry (18 September 1944-26 June 2011)
Sad news of the death of Lord Rodger of Earlsferry on 26 June 2011. He had been ill with the effects of a brain tumour since the early spring.
Alan Rodger was the greatest Scots lawyer of his generation as well as a highly distinguished scholar with an academic publications record that any full-time professor would have been proud of. And he was a highly stimulating and entertaining social companion. He would have mocked the cliche, but he has been taken from us while still at the height of his remarkable powers.
The bare facts of Alan's glitteringly varied career can be simply told. He was born and educated in Glasgow (Kelvinside Academy, Glasgow University) before moving to take a DPhil in Roman Law at Oxford under the supervision of Professor David Daube (previously of Aberdeen). Daube became the most significant intellectual influence on Alan's thinking about and approach to law in general. The DPhil thesis, published in 1972 as Owners and Neighbours in Roman Law, led first to a Junior Research Fellowship at Balliol and then to a Fellowship at New College, Oxford from 1970, during which time he began to publish on Scots as well as Roman law. One of his articles then was cited in argument in a Scottish court but dismissed by the judge as written by one who had no right of appearance before him (Mercantile Credit v Townsley 1971 SLT (Sh Ct) 37 at 39). Perhaps in answer, in 1974 Alan was called to the Scottish Bar, becoming as soon as 1976 Clerk of Faculty (a position he held for three years). He was appointed QC and an Advocate Depute in 1985, and then became successively Solicitor General for Scotland in 1989 and Lord Advocate in 1992 under the then Conservative Government. Amidst all this his academic achievements led to his election as a Fellow of the British Academy in 1991 and as a Fellow of the Royal Society of Edinburgh in 1992. He ascended the Scottish bench in 1995 and in 1996 succeeded Lord Hope of Craighead as Lord President and Lord Justice General. In 2001 he joined Lord Hope as one of the two Scottish judges in the House of Lords; and when that court was transformed into the UK Supreme Court in October 2009 the two became the first Scottish Justices in that institution. Although he never lost touch with the Scottish university law schools (for example, he was an Honorary Professor at Glasgow, and received honorary degrees from Edinburgh and Aberdeen as well as Glasgow again), he loved Oxford, becoming for example the university's High Steward in 2008 and Visitor of Balliol (in succession to the late Lord Bingham) in late 2010 as well as helping out with the teaching of Roman law in the university after the death of the Regius Professor of Civil Law, Peter Birks, in 2004.
As a judge Alan was in the forefront in what has turned out to be the greatest challenge ever to face the courts, not only in Scotland but also in the United Kingdom as a whole: the impact of the Human Rights Act 1998 coupled with, in this jurisdiction, the Scotland Act of the same year. While some of his analyses and conclusions may be challenged by others on legal and (for Alan, irrelevantly) political grounds, there can be no doubt of the rigour and vigour which he with others brought to what turned out to be an enormous and far-reaching task. The Cadder case was perhaps his last major contribution in this area, and a very typical one for those looking for an example of his judicial style. But the contribution was not limited to this field, however central it seems. There were path-breaking judgments in pure criminal law, as in the Galbraith case on diminished responsibility. And in private law he ranged widely, perhaps especially when he was Lord President; but even in the House of Lords and the Supreme Court there were powerful, possibly decisive speeches and judgments: for example on the right of retention in the Inveresk case in 2009, where he explained clearly the notion that the right was subject in some circumstances to the equitable control of the court; the servitude of parking case in 2007 (with its entertaining discussions of parking problems in ancient Rome and contemporary tenemental Scottish cities); and the effect on the buyer's right of rejection of faulty goods of acceptance of the seller's offer of cure in another 2007 case.
Alan eschewed any form of "Scottish legal nationalism", indeed could be fiercely critical of some of its manifestations. Some of that can be seen in his Wilson Lecture of 1995, later published as the very first article in the Edinburgh Law Review: "Thinking about Scots law", vol 1 (1996) pp 3-24; but at various points in his judicial career he did not hesitate to develop a distinctive Scots law where he found it to be justified by authority, principle and legal policy: notably the law of unjustified enrichment (Shilliday v Smith 1998 SC 725), but also the entitlement of a contracting party to claim specific implement in circumstances in which in England the House of Lords had held specific performance not to be available. His judgments were peppered with references to Roman law, on the use of which as a source for modern Scots law he had characteristically specific and strong views, but without ever making them a programme for any sort of Civilian renaissance in Scotland. He also drew on comparative law and the later European ius commune (see for example his opinion in the Piper Alpha case when Lord President), but was utterly against any development of a modern European private law, at least in any sort of codal form.
Others are better placed than this writer to assess Alan's contribution to Roman law studies; but his standing in that worldwide field of scholarship is very high indeed, and has been for a long time. He wrote about current issues in Scots law, too; but from the 1980s on he began to work on the relatively neglected field of "modern" Scottish legal history, i.e. from the nineteenth century on. He pioneered in what is now the thriving study of the greatest of all Scottish cases, Donoghue v Stevenson (1932), characteristically focusing on the figure of the pursuer: who was she and what happened to her outside her famous case? Perhaps his greatest achievement in this area is his book on the Disruption and its legal causes and consequences, The Courts, the Church and the Constitution (2008), in which he explores not only the extensive case law but also the religious dogmas and the individual personalities embroiled in the affair, all in loving and ultimately compelling detail. Of course there are lessons in it all for law now; but that was secondary to the inherent interest of the subject. For Alan, following David Daube, that interest was in the end quite sufficient justification for the study. From Daube too he learned to start with words and work his way to conclusions (or, at least, more general observations) from the bottom up. That approach is apparent in all his written work, whether as a judge or as a scholar. It also explains another strand in his publications, writings on the language used by judges, in Britain and elsewhere, and also by legislators.
Any suggestion that all this means that Alan was above all the detached judge and scholar wholly absorbed by his work would be completely wide of the mark, however. He was a highly entertaining companion who loved discussion, debate, wining and dining, and gossip. His friendships were strong and deeply felt: witness his memoirs of such as David Daube, Peter Birks, Edinburgh solicitor advocate David Williamson and the Scottish judge, Lord Davidson (see 2004 SLT (News) 55 and 2009 SLT (News) 157). He was much in demand as an after-dinner speaker (for some of the reasons why see his "Humour and law", 2009 SLT (News) 202). He was delighted if you brought him something that interested him; while his mock-querulous tone if he thought he had caught you out in absurdity or irrationality was always pitched just so as to induce a smile (unless, perhaps, you were counsel appearing before him). Brilliant, argumentative, serious, funny and above all engaged: Alan Rodger will be deeply missed but we should all be thankful that we knew him and that so much of him is still there for us to cherish as well as to admire. A final thought is that were he here he would most probably want to engage in the speculation as to who will be his successor in the Supreme Court.
Other obituaries and tributes
Scotsman, Daily Telegraph, Guardian, Herald, Judiciary of Scotland, UK Supreme Court, Crown Office and Procurator Fiscal Service, Scotsman obituary, UKSC blog (Aidan O'Neill QC), President and Deputy President of the UK Supreme Court, The Times 1 July 2011 (not freely available online), Roman Law Resources (links to video of Supreme Court tribute ceremony).