There are very few lawyers who have not had the experience of finding something useful for a case that they might easily have missed. This has happened to me so often that I sometimes bore colleagues by talking about the role of serendipity in legal research.
John Larkin
Adventitious discoveries in legal research are, of course, seldom really adventitious; discovering a useful treatise of which one had never heard would be truly adventitious if the discovery occurred in a pub or a hayfield, but coming across it on the shelves of a law library is not. Curiously, I have from time to time found materials on open shelves the hard way which I (in theory) might have found on line but did not.
In what follows I suggest answers to the question of where (and how) our legal research needs to be directed. If we can agree that we do not seek textbooks in the pub, what shelves (virtual as well as physical) do we need to look at?
For certain types of work the English lawyer, the Irish lawyer and the Scots lawyer of the early twentieth century might have been able to look at the shelves devoted to his own jurisdiction, and those shelves alone. If that was ever really true – and for Irish lawyers it was never true – then for all four jurisdictions it is certainly not true now.
I suggest that there are three frontiers that stand as limits to contemporary legal research. My premise is – plainly – that we can and must overcome them.
The first limit is that represented by the lines on maps referred to in the title: it is the limit or frontier of the jurisdiction in which the legal issue arises. The modern lawyer has to seek assistance not only from the obvious international sources (the European Court of Justice and the European Court of Human Rights) but also from the domestic law of the other EU and Council of Europe states.
For this frontier I offer examples from administrative law and the law of human rights. Parenthetically, it is worth acknowledging the significant problems for the law librarian not least in terms of language difficulties that this frontier represents.
The second frontier is that between past and present. Lawyers need to be aware of origins and development not only in their ‘own’ jurisdictions but also in the international context. In this context I cannot but call to mind the late Lord Rodger of Earlsferry who reminded us often of the continuing importance and relevance of Roman law.
As for the third frontier, this is created by the limits of our legal imagination. In the public ear the phrase ‘creative lawyer’ may ring dubiously and even among lawyers there is sometimes a refusal to see law as a truly creative discipline. In what follows I want to explore briefly how law librarians and lawyers in the academy, private practice and government can work together to achieve creative lawyering in the service of the public.
Before looking at those three frontiers in turn it has struck me that there is something felicitous in a group of librarians meeting in Belfast during the week of the Belfast Book Festival.
While lawyers and law librarians have to be concerned about more than the printed book, the printed book remains central to what we do and who we are. I heard recently that Catholic ecclesiastical authorities in New Zealand have disapproved of the use of e-books, ipads and the like for liturgical use and have insisted on (why conceal my own prejudices?) proper books. Lawyers are not priests but there is among us a ‘low’ and a ‘high’ school as respects the nature of the lawyer's calling. I belong unapologetically to the ‘high’ school. Ours is a noble vocation.
When it comes to printed books, however, I suspect that we have lost something from the time when the head of the French judiciary the 17th century chancellor, Pierre Seguier said (I hope jocosely), “if anyone wants to seduce me they have only to give me books”.Footnote 1
I've applied that quotation (always jocosely) to myself but must shamefully confess that I only came upon the Pierre Seguier quotation last year in a French antiquarian bookseller's catalogueFootnote 2 in an entry for a book which had belonged to Seguier himself. The book was Carlo Emmanuele Vizzani's De Mandatis Principum published in Amsterdam in 1658.
Seguier's copy of the Vizzani is opulently bound in full calf, stamped with gold fleur de lys and the entwined letters ‘PS’Footnote 3; but I'm interested here in how Vizzani's book and Seguier's ownership are emblematic for the first and third of the three frontiers under discussion here.
THE FIRST FRONTIER
I want to begin by giving three examples from my own work where it has been necessary for me to cross the jurisdictional frontier to carry out effective legal research. The risk when a practising lawyer discusses his or her own cases is that the listener or reader is regaled with stories of which the author is the hero. By way of reassurance; of these three cases, judgment is awaited in one, and in the other two I did not win.
At the time of writing, judgment is awaited in Re Northern Ireland Human Rights Commission's Application which is a challenge to Articles 14 and 15 of the Adoption (Northern Ireland) Order 1987, the combined effect of which is to confine adoption as a couple, to married couples. The challenge was founded principally on Articles 8 and 14 of the European Convention on Human Rights.
The case is a good example of how simply waiting on cases to appear in the European Human Rights Reports is simply not enough. On March 12 this year the Fifth Chamber of the European Court of Human Rights delivered judgment in Gas et Dubois c. France. Footnote 4 On the HUDOC site the judgment is available only in French. Now this is the only decision of the European Court of Human Rights dealing with the question of the compatibility of a state ban on adoption by couples other than by married couples. If you are a family lawyer in England, Scotland or Wales you will find this an interesting case. Family lawyers in Ireland and Northern Ireland need to read this case – it's really as simple as that!
In the concurring opinion of Judge Costa in Gas et Dubois Footnote 5 there is a reference to the decision of the French Conseil Constitutionel dealing with the matter.Footnote 6 The conseil is the only French Court that can pronounce on the compatibility of French laws with the French Constitution. Recourse to it by individual litigants has been made easier since by the QPC procedure whereby other courts can send an issue of compatibility with the French constitution to the Conseil.
As many of you will know all three of the French Supreme Courts; the Cour de Cassation, the Conseil d'Etat and the Conseil Constitutionel have excellent websites. It was, therefore, an easy matter to get a copy of Decision number 2010-39 QPC of 6 October 2010 which is, I believe, a decision of international importance, on the allocation of roles between legislature and judiciary, and a decision in which the reasoning plainly exerted a decisive influence in the outcome of the case in Strasbourg.
I intervened in the Supreme Court case of Re McCaughey Footnote 7 in an attempt – a futile attempt as it happened – to persuade the Supreme Court not to follow the Strasbourg Grand Chamber in Silih v Slovenia. Footnote 8 Realising that the Supreme Court and before it the House of Lords had not failed to follow a Grand Chamber decision I sought to stiffen their Lordships' and her Ladyship's resolve by examples, if I could find them, of other European Courts standing up to Strasbourg.
Happily, what was then a fairly recent decision of the Conseil Constitutionel was useful in making the point for me. In decision 2010-624 DC of January 20 2011, the Conseil had had referred to it by over 60 senators, the issue of the validity of an Act to reform representation before the Courts of Appeal. The Conseil had to consider, among other things whether the absence of compensation for the abolition of the professional privileges which avoués enjoyed was a breach of the relevant provisions of the French Constitution. In official commentary on the decision it was noted that a relatively wide approach to property was provided by Article 1 of Protocol 1 ECHR but this was contrasted by the greater rigidity of Article 17 of the 1989 Declaration of the Rights of man and of the citizen which has constitutional force in France. The conseil adverted to the idea of there being a species of property in the office of avoué and rejected it because it saw such recognition as something akin to the venality of offices under the ancien regime. In doing so the conseil acknowledged the contrast between the Article 1 P1 protection and that provided by Article 17 of the 1789 declaration but was untroubled by it. The Supreme Court was untroubled by it too since it was not referred to in any of the opinions.
Axa Insurance Limited and others v HM Advocate and others Footnote 9 concerned a challenge to an Act of the Scottish Parliament undoing a decision of the House of Lords that held that pleural plaques were not actionable damage for the purposes of the law of torts. A number of insurance companies mounted a full frontal attack on the Act and I intervened suggesting that while the Act prospectively was unobjectionable that its retrospectivity might fall foul of Article 1 P1 and Article 6 ECHR.
While there is, of course, a scattering of Strasbourg cases on retrospectivity it struck me that these were fairly open textured and I wondered if there were any significant statements of principle from the Supreme Courts of France or Germany. With France it became apparent that concerns about retrospectivity are now largely confined to Article 8 of the 1789 Declaration although interestingly the Constitution of Year III (1795) provided in Article 14 of its Declaration of Rights that “no civil or criminal law can have retrospective effect”.Footnote 10
On the other hand, in Germany the principle of ‘Rechtsstaatlichkeit’ includes the principle of legal certainty and the protection of public trust. The Bundesverfassungsgericht has held in a series of cases that retroactive deterioration in a citizen's legal position infringes the principle of legal certainty, particularly it seems in tax cases.Footnote 11
THE SECOND FRONTIER
Turning then to the second frontier of legal research, that of the past, it may have struck you already that the lines between cross-jurisdictional research and research into legal origins often merge. Looking at French constitutional law, for example, involves an examination of the contents of the 1789 Declaration of the Rights of Man and of the Citizen.Footnote 12 If you happened to be looking at the law of San Marino you would be, as respects civil law and procedure, largely looking at Roman law, the work of Justinian with the addition of medieval commentary and some canon law too.Footnote 13
We live, it seems to me, in a society which is becoming less interested in the past other than as a source of entertainment. This seems particularly true for lawyers and my impression based on conversations with younger lawyers – and it's no more than an impression – is that there is much less of an historical sense than among the generation of lawyers who are now retiring.
There is so much material coming at us that we can often be forgiven for not looking backwards but it's a mistake not to. A legal historical perspective is not necessary for every case – I can't see, for example, its obvious usefulness in a speeding plea – but for some cases the right outcome depends on it.
There is also the broader context which was referred by Lord Roskill in CCSU v Minister for the Civil Service Footnote 14 when he said this about the role of legal history:
“It is, I hope, not out of place in this connection to quote a letter written in 1896 by the great legal historian F. W. Maitland to Dicey himself: "the only direct utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each generation has an enormous power of shaping its own law": see Richard A. Cosgrove, The Rule of Law; Albert Venn Dicey; Victorian Jurist(1980), p.177. Maitland was in so stating, a greater prophet than even he could have foreseen, for it is our legal history which has enabled the present generation to shape the development of our administrative law by building upon but unhampered by our legal history.”
In fact that passage, as well as paying a graceful compliment to FW Maitland, offers two justifications for legal history; the first (Maitland's) is the lesson that each generation has power to shape its own law; the second (Lord Roskill's) is that legal history is, in itself, a tool for that shaping. I respectfully agree with both of them.
For us in our respective jurisdictions there are two great legal historical streams that have to be considered. The first is Roman Law and the second is the legal history of our own jurisdiction. For all of us, but perhaps especially for Scotland, these streams will at times fuse and run together.
Some branches of law bear the stamp of Roman law very clearly. So, for example, the law of unjust enrichment is at its core, concerned with the restoration of benefits which a defendant cannot in law retain against the plaintiff. The clear justice of the principle is recognised in all modern legal systems and has a Roman law origin. As Pomponius says: Nam hoc natura aequum est neminem cum alterius detrimento fieri locupletiorem. (For it is by nature fair that nobody should enrich himself at the expense of another). D. 12.6.14.Footnote 15
The great French legal theorist Michel Villey wrote a book for the famous Que Sais-Je series on Roman Law with the possibly defiant (and certainly provocative) sub-title “son actualité”. Villey undertook to show to his readers how Roman law was not alien to contemporary concerns and in large measure remained relevant.Footnote 16 He pointed out that Roman jurists had discerned the principles of the art of what is just, its method and especially its language. The fundamental terms which legal science uses today – property, succession, wills, obligations, mandate, society – are the invention of Roman jurists, he said, and this language has not fallen into abeyance.Footnote 17
For a similar view closer to home, I turn to the greatly lamented Lord Rodger of Earlsferry who had a hugely distinguished career as a Roman law scholar before taking up practice. In his Jean Clark Memorial Lectures published in 2008,Footnote 18 Lord Rodger observed “Even today, some of us believe that the Roman jurists have never been equalled, far less surpassed, in their skill in handling complex legal questions”.
Although in the case of R v Bentham Footnote 19 Lord Rodger could have given his conclusion on other grounds, Roman law furnished a neat solution. Bentham raised the question of whether a person who has his hand inside a zipped-up jacket, forcing the material out so as to give the impression that he has a gun, has in his possession an imitation firearm within the meaning of section 17(2) of the Firearms Act 1968, Lord Rodger at paragraph 14 dealt with the matter thus:
“Dominus membrorum suorum nemo videtur: no-one is to be regarded as the owner of his own limbs, says Ulpian in D.9.2.13. pr. Equally, we may be sure, no-one is to be regarded as being in possession of his own limbs.Footnote 20 The Crown argument, however, depends on the contrary, untenable, proposition that, when carrying out the robbery, the appellant had his own fingers in his possession in terms of section 17(2) of the Firearms Act 1968. I agree with my noble and learned friend, Lord Bingham of Cornhill, that for this reason the appeal should be allowed.”
As for Strasbourg and Roman law in the Grand Chamber, joint dissenting opinion of Judges Costa, Ress, Türmen, Zupancic, and Steiner in Hatton v United Kingdom Footnote 21 (8 July 2003 – the Heathrow night flights case) the judges present environmental concerns as presenting no new legal phenomenon when they say:
“Historically, however, environmental considerations are by no means unknown to our unbroken and common legal tradition. For example, the extraordinarily sensitive doctrine concerning environmental nuisances goes back to Roman law. Roman law classified these nuisances as immissiones in alienum. Dig.8.5.8.5 Ulpianus 17 ad ed”
Turning now to the second historical stream, I hope I will be forgiven for, again, giving an example from my own experience.
Recently the High Court in Belfast heard an application by the Northern Ireland Courts and Tribunals Service seeking a determination on whether deduction by the Court Funds Office of management fees from court funds in respect of payment for professional investment advice relating to those funds, was lawful.
I intervened in the case submitting that these payments to stockbrokers from the funds of children and patients were not lawful. It struck me as necessary to examine the origins of the office of Accountant General. This office was created as the Accountant General of the Irish Court of Chancery in 1783 after a scandal in which one of the Chancery Masters (the Masters were responsible for suitors' funds) had been unable to meet his obligations.
As many of you will know, at that time throughout England, Ireland and Scotland a good deal of the remuneration of judges and court officials was by fees paid for particular transactions or services. A list of these was published in Ireland in 1734.
In the early nineteenth century, urged on by concern that unauthorised fees were being charged, a series of commissions of inquiry were established to look at the Courts of England, Ireland and Scotland. These reports make fascinating reading and usefully many of them have, I understand, been digitised by the University of Southampton Library.
When the Commissioners looked at the Accountant General in 1817 they found that the work had often been carried out by deputy and that the deputy charged fees for which no statutory warrant existed.Footnote 22
On an examination of the long repealed 1783 statute and the 1817 report it became clear, I think, that the principal purpose of lodging funds in court was, and is, to keep them safe. As McCloskey J observed at paragraph 3 of his judgment of April 19, “… the duty and function of the Accountant General was the simple uncomplicated one of lodging the monies in question in the bank subject to express order of the court. Based on my analysis of the current statutory regime … the core of this model is readily identifiable in its contemporary successor, over two centuries later.”Footnote 23
My own view is that the pure issue of statutory interpretation which faced the judge in that case was much more open when the historical context was left out of account. With the inclusion of the historical context, what I have no hesitation in calling the right result, was more easily ascertained.
To conclude this section by adverting again to what Lord Roskill and FW Maitland said about the power of each generation to shape its own law, I was struck when reviewing the 19th century materials for the Court Funds case how the opinion of the then Irish Attorney General had been sought on an issue of statutory construction and then reproduced in the Report by the Commissioners. As you know there are very strong contemporary conventions in these islands that the advice of law officers is not normally disclosed, nor is the fact that it has been sought or obtained. Plainly in early 19th century Ireland this was not the position. Nor is it the position today in some US jurisdictions (South Carolina is one example) where the opinions of the Attorney General are often made public, and in South Carolina are accessible though the Attorney's website.
THE THIRD FRONTIER
Lawyers and law librarians tend to be busy people. We have a lot of material to read, a good deal of it difficult. We are often – and rightly – encouraged to prioritise, to focus on what is said to be essential.
More than for the other two frontiers, reflection on the third is a reflection on what it means to be a lawyer. It is possible for a very good living to be earned by doing a lot of lucrative work which, if was ever difficult or challenging, ceased to be so by the combined effects of experience and routine. It is also true, sadly it is increasingly true, that there are talented lawyers, especially young lawyers who cannot find employment as lawyers or who at the Bar never obtain sufficient work to earn a living.
For many lawyers this discussion about legal research and legal excellence will lack immediacy and perhaps also a sense of reality.
I've referred earlier to having a ‘high’ view of the nature and purpose of a lawyer. I combine that with having, I hope, a realistic view about what role the law can be expected to play in contemporary society. Rather like Michel Villey, I want law to have its full place but I think that law can't solve all our problems that while the law is clearly indispensible, it often has a subordinate place in human conduct.Footnote 24
Since discovering the Pierre Seguier quotation, I've since then become an admirer of the book in whose catalogue entry I first read it – although not, sadly, through owning the splendid copy that entry describes. Vizzani's book De Mandatis Principum is a commentary on parts of Justinians Code and Novels dealing with public law and specifically the duties of officials sent out to govern provinces. It ranges from textual commentary to the drawing of large conclusions about civil government such as how it is better to have tribunals consisting of a plurality of judges rather than a single judgeFootnote 25, how the selling of justice is the greatest injusticeFootnote 26, the duties of judges and lawyers towards the poorFootnote 27 (a well explored theme in the ius commune of early modern EuropeFootnote 28), and the importance of proportionality in sentencing.Footnote 29 These themes are no less important now then they were in the seventeenth century.
I think I can begin to see why a French Chancellor owned a book by an Italian lawyer published in Amsterdam. Vizzani's book is not merely a scholarly reflection on ancient texts; it brings that scholarship to the present and deploys it for the wider public good.
Pierre Seguier as well as being a great lawyer was also a great patron of the arts. One can see the great portrait of him by Le Brun (whose first patron he was) at the Louvre and he has been described as the second protector of the Academie Francaise.Footnote 30 More importantly perhaps, for librarians he was in the universal opinion of his contemporaries, the possessor of the largest private library in France, a library where in the words of a contemporary poet ‘rich and poor go to study’.Footnote 31
Seguier's library contained much more than works on law; in its scale and comprehensiveness it rivalled the French royal collections. We are now accustomed to see something fashionable in multi-disciplinary work and research but the libraries of lawyers like Pierre Seguier were and are the starting points for making the connections that have to be made between law and the rest of existence, between law and the humanities, and between law and the sciences.
These connections and the space – the mental and physical space – to think about them are part of the third frontier in legal research. Most of the time when we practice law we exercise a trade; when we pass the third frontier we move from the realm of trade to that of art. Most of us can hope to pass that frontier only occasionally if at all but when we do our crossing, the journey will most often have taken place in a library and our travel guides, of course, are librarians.
Seguier would not have been Seguier without his library. Lawyers can (just about) be lawyers without law librarians but it is only in partnership with librarians that excellence in lawyering is ever possible. For my part I am grateful for the wonderful possibilities law librarians bring into being and nurture every day.
