Non nobis solum nati sumus ortusque nostri partem patria vindicat, partem amici: in memoriam Alan Rodger
To the sombre magnificence of St Giles in Edinburgh on the cold wet evening of Friday 26 November 2011 for a memorial service in honour of Lord Rodger of Earlsferry; then on to a dinner in the opulent splendour of the Signet Library. Both events attended by a legal galaxy from not only the United Kingdom but also continental Europe. The fine formal tributes at each part of the event moved their hearers in different ways, and left your correspondent with a deeper understanding of the threads of rich friendships running through Alan's multi-faceted career. The Ciceronian line on the cover of the order of service was indeed apt: "non nobis solum nati sumus ortusque nostri partem patria vindicat, partem amici."
The service, conducted by the Very Rev Gilleasbuig Macmillan, Minister of St Giles, took a strongly traditional Christian approach, with the choir and organ of St Giles in fine form, the congregation rendering Psalm 100 and two hymns ("O God, our help in ages past"; and "For all the saints", the latter Alan's favourite, as we were told at the funeral), and two scriptural readings by Lord Cullen of Whitekirk (Proverbs 4: 1-9 ["Listen, my sons, to a father's instruction, consider attentively how to gain understanding"]) and Lord Mackay of Clashfern (Epistle to the Romans 8: 31-39 ["If God is on our side, who is against us?"]).
The eulogies came from Colin Mackay, TV and radio broadcaster, and friend of Alan from earliest schooldays as well as at Glasgow University, and Sir David Edward, friend and colleague from the time Alan entered the Faculty of Advocates in 1972. Both drew not only on their personal recollections but also on what is obviously a rich resource in Alan's letters to his family. From Colin we learned of the links between Alan's father and "King John" MacCormick, leading Scottish nationalist and of course father of another sadly departed friend in the law. We were also entertained by an image of Kelvinside Academy pupils in 1953 being made by one of their teachers to scratch out the second "I" of "Elizabeth II" on their Coronation commemoration pencil-cases. Who knows what effect this had on Alan's views about Scottish nationalism? At any rate, later on as a student on Gilmorehill, as well as honing debating skills at the University Union, he formed with others the Glasgow University Royalist League (GURL) which invited membership from a host of obscure European royals – with what success we were not told.
In a fine and thoughtful speech which we may hope to see in print as the Royal Society of Edinburgh memoir of its subject, David Edward rightly emphasised Alan's interest in the practical solutions to problems as one of the keys to understanding his motivations in life, and also his lack of interest in the generalisations he saw as coming from legal philosophy and sociology. On this problem-solving basis David explained Alan's decision to leave academic life in Oxford and go to the Scottish Bar in 1972: he had solved a big problem in Roman law and did not see fulfilment in exploring new, lesser problems from the Roman law chair that might otherwise have been his. Your correspondent wondered a bit about this, since Alan went on solving Roman law problems all his life long. The fact of the matter is that the chairs of Roman law that might have interested Alan (Oxford, Glasgow, Cambridge, Edinburgh, Aberdeen, UCL) were in 1972 all occupied by men who are (with one exception – Tony Thomas, who died early, in 1981) still alive today, albeit each for some time retired (i.e. Honore, Gordon, Stein, Watson, MacCormack); so the prospects for advancement in the subject forty years ago were not obviously good, no matter how able the candidate. Also, Alan's great mentor David Daube (who in general should perhaps have been more mentioned in the tributes) had left Oxford in 1970 for California, while in 1972 Alan's father was taken seriously ill back home in Glasgow. The last may also have been a factor for one so close to his family in choosing the Scottish over the English Bar.
David Edward's moving account of a long friendship aptly closed with William Johnson Cory's translation of Callimachus of Cyrene's poem on learning of the death of his friend Heraclitus:
They told me, Heraclitus, they told me you were dead,
They brought me bitter news to hear and bitter tears to shed.
I wept as I remembered how often you and I
Had tired the sun with talking and sent him down the sky.
And now that thou art lying, my dear old Carian guest,
A handful of grey ashes, long, long ago at rest,
Still are thy pleasant voices, thy nightingales, awake;
For Death, he taketh all away, but them he cannot take.
The shorter speeches at the dinner were five in number, including a short introductory and highly entertaining reminiscence from Alan's younger brother Ian. He told three revealing stories: one about the law student advising the local minister on the source of the law against dogs performing natural functions in the street; another about the New College don advising an "insufferable" visitor that the best way to get to Heathrow from Oxford was by taxi; and the third about the law officer successfully ordering queue-jumping military personnel to get to the back of the line in a motorway service-station. The last recalled for your correspondent an earlier vignette in Colin Mackay's tribute, with the schoolboy Alan proclaiming, arms akimbo, "That's not fair!", and carrying his point.
The four post-dinner sketches were provided by John Galloway, a colleague in Alan's time at New College and a friend ever since. Perhaps his most revealing vignette was Alan visiting a Cornish museum and correcting its presentation of Britain's imperial history, which he saw as matter for pride rather than shame. Lord Brown of Eaton-under-Heywood spoke as a judicial colleague from 2004 in, first, the House of Lords and then the Supreme Court; it seems that their Lordships pass notes to each other commenting on what passes before them during counsels' arguments, not always kindly. Lord Mackay of Drumadoon told of his time as an assistant at Allan McDougall & Co when Alan was a Bar apprentice there, and also as flatmates in those early days; and then of his much later spell as Solicitor General for Scotland when Alan was Lord Advocate, emphasising his strengths as the leader of the Crown Office and the Lord Advocate's Department. George Moore QC had been a junior classmate at Glasgow who had been encouraged by Alan to pursue Honours in Roman law; a perfect imitation of Alan saying "You MUST do it! You must do it!" It also appeared that the co-founder of the GURL (above) had also been a member of the Liberal Club at Glasgow University.
David Edward and Lord Brown both quoted from Alan's remarkable judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31 in which he and David Hope led a unanimous Supreme Court in holding that homosexual asylum seekers should be granted refugee status if going home would result in them being forced to conceal their sexuality. The passage by which your correspondent was most affected is at para 77:
"At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable."
For all Alan's impatience with political correctness and "trendy sociology", also noted more than once during the tributes, he was a humane and socially liberal observer of the world in which he lived. As the huge attendance at service and dinner showed, his human qualities as well as his intellect and scholarship attracted a very wide range of people into his circle. David Edward's invocation of Johnson Cory's lines as well as the Ciceronian strapline for the service well expressed what was felt by everybody present.