Towards the end of his leading speech in the House of Lords in Spiliada Maritime Corp v Cansulex Ltd,Footnote 1 Lord Goff explained how useful he had found the work of academics in deciding that case (which was about forum non conveniens in private international law). He concluded with these wonderful words:Footnote 2
For jurists are pilgrims with us on the endless road to unattainable perfection; and we have it on the excellent authority of Geoffrey Chaucer that conversations among pilgrims can be most rewarding.
In this lecture I want to explore three main themes within an overall examination of the relationship between judges and academics.Footnote 3
First, I want to outline the change that took place towards the end of the last century in relation to the influence of academics on judges in England and Wales.
Secondly, I want to examine how the work of academics can help appellate judges; and here I will be putting forward a plea for the importance of what I have termed ‘practical legal scholarship’.
Thirdly, drawing on my own recent experience, I would like to consider how being a judge of the UK Supreme Court differs from being an academic.
1. The Increased Influence of Academics on Judges towards the End of the Twentieth Century
For much of the twentieth century legal academics in England and Wales had a low status and a correspondingly limited influence on judges. Until the late 1960s there were relatively few university law courses and relatively few legal academics. The majority of the legal profession, especially the Bar and hence the judiciary, had not studied law at university. Moreover, while there were some exceptions (for example, the writings of Sir Frederick Pollock and Arthur Goodhart were influential in the judicial development of tort law),Footnote 4 the general convention among judges and practitioners was that the work of academics was ‘better read when dead’.Footnote 5 As Peter Birks explained of his time as a law student in the 1960s: ‘[W]e still took in the message that it was only exceptionally that a living author might be cited in court, something which I accepted without question as part of the natural order’.Footnote 6
Jack Beatson summed up the position as follows: ‘Although a few individuals had some influence, in general until the mid-1960s British academic lawyers lacked status and prestige [compared] with practitioners and judges and with academics in other disciplines’.Footnote 7
As a clear illustration of this, Neil Duxbury in his short book, Jurists and Judges: An Essay on Influence,Footnote 8 sets out in some detail the various views expressed by Sir Robert Megarry. Those views carry particular weight because Megarry was not only an excellent judge but also an impressive author and, indeed, he was the President in 1965 to 1966 of the Society of Public Teachers of Law (now known as the Society of Legal Scholars). Duxbury suggests that, looking at several instances of Megarry's writings on academic lawyers, the impression conveyed by Megarry (and others like him) of academic lawyers (although one may have doubts whether this was really Megarry's intention) was as follows:Footnote 9
[T]hat they are, variously, delicate plants, loose cannons, an uncharismatic and whimsical bunch, unable to be trusted not to change their minds on points of law and unlikely to be able to perform the role of a judge; that they are sometimes too ponderous, at other times too expeditious, in articulating legal opinions; that they have the easy life of the armchair critic, under no pressure to provide solutions quickly and accountable to no-one should their solutions prove wrongheaded; that their work ideally ought not to be treated as secondary authority, or, if it is to be treated thus, must be used with circumspection; and their influence on counsel, should they ever have any, ought to be deemed undeserving of acknowledgement.
As Duxbury concludes, at the end of that section of his book: ‘Small wonder that English academic lawyers in the past have, with regard to the courts, seemed somewhat attention-starved and blighted by a sense of inferiority’.Footnote 10
The position appears to have long been different elsewhere. For example, as I have often heard it said, ‘[i]n Germany, the professor is God: in England, the judge is God’.Footnote 11
Over the last five decades, however, the position in England and Wales has changed dramatically. The biggest single driver of change was the expansion of universities, and hence law schools, in the 1960s. This produced a corresponding increase in the number of law degrees and law students and, along with the acceptance of the Ormrod Committee's 1971 recommendationFootnote 12 that law should be a graduate career, this has meant that it has become the norm, with some notable exceptions, for judges to have law degrees and sometimes postgraduate law degrees.
Another influential factor was the creation of the Law Commission in 1965. This successful and highly respected body advises the government on legislative law reform and is made up of five Law Commissioners, supported by government lawyers. Significantly, those five commissioners have almost invariably comprised a judge as Chair, one barrister, one solicitor and two legal academics.
A high-profile and major academic triumph came in the mid-1980s when, following stinging criticism by Glanville WilliamsFootnote 13 of the House of Lords’ decision in Anderton v Ryan,Footnote 14 on attempting the impossible in criminal law, the House of Lords quickly reversed that decision in R v Shivpuri,Footnote 15 relying on that article by Williams despite what Lord Bridge referred to as ‘language … that is not conspicuous for its moderation’.Footnote 16 By the late 1980s academic work was regularly being cited in the House of Lords and, according to research recently carried out at my request, the number of citations increased steadily throughout the 1990s and the first few years of the 2000s before levelling off at roughly the present citation level.Footnote 17
In addition, judges and academics now commonly share platforms at legal conferences and seminars; judges often contribute, alongside academics, to published collections of essays; and academics, judges and practitioners have occasionally worked together on projects and working groups.
Two individuals, in particular, may be singled out as propelling this move towards a closer working relationship between academics and judges.
The first was Lord Goff. His career took him from being a law don at Lincoln College Oxford to the commercial Bar, and then up the various rungs of the judicial ladder before he became senior Law Lord (the equivalent of the President of the Supreme Court) in 1996. Famously, he was the joint author, with Gareth Jones, of the wonderful and innovative The Law of Restitution, the first edition of which was published in 1966. However, particularly important for my theme this evening is the Maccabean Lecture in Jurisprudence he gave in 1983 entitled The Search for Principle in which he set out, with characteristic clarity, the different but complementary roles that judge and jurist play. As he explained:Footnote 18
Judge and jurist adopt a very different attitude to their work. For the [judge], the overwhelming influence is the facts of the particular case; for the [jurist], it is the idea … [But] different though judge and jurist may be, their work is complementary; and … today it is the fusion of their work which begets the tough, adaptable system which is called the common law.
The other particularly influential figure, this time from academia, was Peter Birks. His brand of scholarship – in which he presented rational and clear pictures of the law – appealed greatly to many judges. Equally important were his many years of service as Honorary Secretary of the Society of Legal Scholars. Birks used this role to push forward the view that legal academia was a third branch of the legal profession alongside solicitors and barristers, and his brilliant mind, charismatic personality and infectious enthusiasm for all matters legal helped significantly to raise the status and profile of the legal academic in the UK.
Several other senior judges in the 1990s and early 2000s made clear their respect for the work of academic lawyers, among them Lord Steyn, Lord Nicholls, Lord Bingham and Lord Millett. Indeed it was Steyn LJ, as he then was, in the Court of Appeal in White v Jones,Footnote 19 a case on solicitor's negligence following the earlier similar case of Ross v Caunters,Footnote 20 who made clear that he wanted counsel, in their submissions, to refer him to relevant academic material. He said this:
The question decided in Ross v Caunters was a difficult one. … It is therefore not altogether surprising that the appeal in the present case lasted three days, and that we were referred to about 40 decisions of English and foreign courts. Pages and pages were read from some of the judgments. But we were not referred to a single piece of academic writing on Ross v Caunters. … [T]raditionally counsel make very little use of academic materials other than standard textbooks. In a difficult case it is helpful to consider academic comment on the point … [I]t is arguments that influence decisions rather than the reading of pages upon pages from judgments. … [Academic] material, properly used, can sometimes help to give one a better insight into the substantive arguments. I acknowledge that in preparing this short judgment the arguments for and against the ruling in Ross v Caunters were clarified for me by academic writings.
It is perhaps also of relevance to the change in the influence of academics on judges in the UK that several judges of the modern era had themselves been academics. In addition to Lord Goff one thinks of, for example, Lord Hoffmann, Lord Rodger, Lord Justice Kay, Lord Justice Beatson, Sir Ross Cranston and – especially influential, not least given her ultimate position as President of the Supreme Court – Lady Hale who, like Jack Beatson and Ross Cranston, had been a full-time academic for decades before becoming a High Court judge.
My own perception is that, over my 40 years as an academic lawyer, any inferiority that academics once felt in relation to judges has largely disappeared. Similarly, I believe that, at least in general, judges no longer look down on the work of academics. Rather, on both sides there is a healthy respect for the work of the other.
As Lord Neuberger elegantly expressed it in a lecture in 2012:Footnote 21
I believe that we English judges have come a long way from the rather sterile state of affairs where judges and professors were ships which passed each other in the night. It seems to me that we now find ourselves in a position where – to swap Longfellow for Shakespeare – there is perhaps between the two professions a marriage of true minds.
This leads on to my second theme.
2. How Can Academic Work Help Judges?
In understanding the complementary role that academics and judges play, it is clear that, crucially, the writings of academics can help to place a particular dispute into a larger context and can thereby assist the proper judicial development of principle. Practitioners and judges, by training, have had to deal with cases by spending a great deal of time focusing on the facts. In contrast, academics generally take the facts as a given and are primarily interested in the law and its application to the given facts. The academic therefore approaches a case not bottom-up from the facts but top-down from the law. In simple terms, what the academic can bring to the appellate judge is the big picture of the law. He or she can provide the judge with how it is that the particular case fits or may fit within the larger coherent whole that comprises the common law. The academic is also well placed to explain relevant policiesFootnote 22 and to offer critiques of past decisions.
Lord Goff in his Maccabean lecture explained the complementary roles in this way:Footnote 23
Jurists … do not share the fragmented approach of the judges. They adopt a much broader approach, concerned not so much with the decision of a particular case, but rather with the place of each decision in the law as a whole.
However, at this point I need immediately to ring alarm bells. The sad truth is that the sort of practical legal scholarship that I am describing – which can directly help a judge in deciding a case – is now regarded by many in academia as old-fashioned and dull. The trend is towards providing deeper theories of the law, whether based on economic analysis, sociology or philosophy. Plainly, deep theory has a part to play in understanding the law, but it is a long way from what courts find helpful in deciding cases. It follows that, in my view, the pursuit of theory should not be at the expense of traditional doctrinal scholarship which can assist the law in action in its most direct form in the courts.Footnote 24 The courts want the academic analysis of the law in language and at a level which they can understand and use in their judgments. They want legal reasoning – designed to produce practical justice – and not reasoning from another discipline.
As Lord Rodger wrote: ‘[O]ne has to wonder whether it is altogether satisfactory for academic writers to go direct to the more theoretical aspects of a subject without ever really engaging with the nitty-gritty of how it actually operates in practice’.Footnote 25
In other words, studying law first and foremost requires that one truly knows and understands the details of the law; and one acquires that knowledge and understanding by doctrinal analysis and practical legal reasoning. As Lady Hale has said: ‘[T]raditional doctrinal scholarship … is the proper basis of all legal scholarship. It is that sort of scholarship which leads to meaningful dialogue with the judges’.Footnote 26
Harry T Edwards, an American appellate judge, famously denounced the disjunction between some United States law schools and practice in the courts, and called for a return to practical legal scholarship that was comprehensible by, and useful to, judges and practitioners.Footnote 27 Certainly, it is disappointing to find that, from the 1970s onwards, the number of articles in the top US law journals that would excite an English doctrinal lawyer can be counted on the fingers of two hands.
Unfortunately, the disjunction that Edwards described in the United States is in danger of also becoming an accurate description of the relationship between law schools and the courts in England and Wales. We are hovering on the brink. From what I have already said, it can be seen that this turnabout has been remarkably swift. From having had relatively little influence on the courts until the late 1960s, legal academia appears to have enjoyed a golden age of influence for some 40 years, but now looks as if it may be intent on throwing away the baby with the bathwater by giving the impression that what goes on in the courts, as a matter of legal reasoning and argument, is rather too dull and straightforward for high academic minds.
Admittedly, important figures have recently stood up for practical legal scholarship. I shall refer to just two. Professor Jane Stapleton, in her Clarendon Law Lectures at Oxford in 2018, made a plea for young legal scholars not to reject what she termed ‘reflexive tort scholarship’. In her words:Footnote 28
A core feature of this type of scholarship is that it takes the judicial role very seriously. It places at centre stage what judges do, how they understand their role, the reasons they give in justification of their decisions, and the vital constitutional responsibility they bear to identify and articulate developments in the common law. … It is because of its tight focus on judicial reasoning that reflexive tort scholarship is so well placed to assist judges, and indeed to collaborate with them in the process of the identification and articulation of the common law …. [T]his is at least as thrilling a prospect for a young legal scholar as any offered by grand … theories.
Similarly, the Hon Chief Justice Susan Kiefel AC of the High Court of Australia, in a recent article, said this:Footnote 29
Today, there are pressures on the academy which may have the effect of limiting the kind of research and writing which is useful to judges and professional lawyers. Funding may divert academic resources away from doctrinal law. It would be a great pity if judge-directed academic writing were substantially to decline. I say that not only from the point of view of judges, but also from that of the academy, and in particular young academics who may never experience what can be a kind of collaboration with the courts. It is my purpose here to encourage the continuance of that collaboration.
In my relatively short time as a Supreme Court judge, it has been abundantly clear to me how useful practical legal scholarship can be in helping to decide a case. So, for example, I drew heavily on the work of academic lawyers in drafting my judgment in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb Footnote 30 on the question of the proper law of an arbitration agreement. Similarly, I gained very significant help from the work of academic lawyers in my judgments in Manchester Building Society v Grant Thornton UK LLP Footnote 31 and Khan v Meadows,Footnote 32 concerned with what English lawyers refer to as the scope of the duty of care, or the SAAMCO issue, in the tort of negligence.
My colleagues, Lords Reed and Hodge, giving the leading judgment in Test Claimants in the FII Group Litigation v HMRC (No 2),Footnote 33 have recently recognised the important contribution of academics to the development of the law when they said as follows: ‘Developments in judicial thinking … do not take place in a vacuum. Judgments are the culmination of an evolution of opinion within a wider legal community, to which practitioners, universities, legal journals and the judiciary all contribute’.Footnote 34
However, there is here an important point that I would like to make to judges in all appellate courts. Some judges appear reluctant to cite academic work even if they have relied on it or found it helpful. This is unfortunate. Not only is it unfair to individual academics whose work is not being acknowledged – as judicial citations of their work can help with promotion and, more generally, with a whole law faculty's research assessment rating – but, perhaps more importantly, it merely serves to undermine the importance of practical legal scholarship. In the modern era, a sure way for judges to kill off the practical legal scholarship that they find helpful is for them not to acknowledge properly the help that they receive from it. In a sense, the trade-off for the help given by practical legal scholars is the judicial public acknowledgement of that help.
Of course, I am not suggesting that judges should cite academic work just for the sake of it, perhaps to make them appear more learned than they are – that is, as Lord Rodger put it, to demonstrate that he or she ‘has got the academic tee-shirt’.Footnote 35 All I am saying is that, just as a judge will happily cite a past judgment where it is helpful and relevant to his or her reasoning, a judge should be willing to cite academic work which has assisted in the formulation of his or her reasoning in deciding a case.
As Chief Justice Kiefel put it in her recent article:Footnote 36
[I]t has been said that judges have often written by reference to legal academic material, but without acknowledgement. This has been referred to in the United Kingdom as the ‘well-established tradition of ‘licensed plagiarism’ by both Bar and Bench’.Footnote 37 I would like to think that this is a practice of the past and that these days acknowledgement is given where it is due.
I turn now to the third and final of my themes.
3. How Does Being a Judge of the UK Supreme Court Differ from Being an Academic?
Given my unusual career (as the first person to be appointed to the highest court in the UK straight from academia), it may be thought that I am in an especially good position to offer insights on the answer to this question.
Of course, there are some very obvious differences between being a judge and being an academic. On the Supreme Court, one is concerned principally with sitting as one of a panel, normally of five, to hear disputes between parties in which each side's lawyers present oral arguments in addition to their written submissions. Having sat through and taken part in the often highly interactive hearing, which normally lasts for one day but can extend over several days, a Supreme Court judge must decide the dispute by the application of the law and must write a judgment, jointly or alone, or, at the very least, must make comments agreeing with a judgment written by one or more colleagues. Deciding cases by legal reasoning set out in a judgment after oral argument is the central role of a Supreme Court judge. In contrast, an academic lawyer spends his or her time researching the law, writing about the law and teaching the law.
However, behind those obvious differences in role, there are a number of perhaps less obvious but important contrasts. I would like to highlight seven of these.
3.1. Academic Freedom
As an academic one is free to say what one likes about the law and one is also free to decide which areas of the law one wishes to research. On the Supreme Court, one cannot simply choose to sit in cases in which one may be said to have expertise or that one finds particularly interesting. Rather, one has to become a generalist, which includes in my case sitting in public law cases even though my academic expertise was almost entirely in private law. Indeed, it is precisely the wide variety of legal problems that one faces in the Supreme Court that makes the job both fascinating and demanding in equal measure. Another aspect of the contrast in freedom is that, if giving a public lecture or talking to students about the law, a Supreme Court judge cannot just say whatever he or she likes about a decided case. For example, it would be regarded as inappropriate to criticise, by going beyond what one has said in a judgment, the views of colleagues whose reasoning has differed from one's own in deciding a case. So, for example, in the recent case of Pakistan International Airlines v Times Travel (on lawful act economic duress) I wrote a separate judgment from the lead judgment of Lord Hodge agreeing with the result but not with some of Lord Hodge's reasoning. I do not think it would be appropriate for me now to go beyond what I said in my judgment to comment publicly on why I consider my own view to be preferable to that of the majority. There is also a convention that, at least in general, one should not seek to reply to academic criticism of one's judgment. In addition, one clearly cannot disclose what went on behind the scenes in deciding the case, such as who said what in post-hearing deliberations. So, as a Supreme Court judge, and even though in an extra-judicial capacity, I have lost some of the previous freedom I enjoyed as an academic in talking about and writing about the law.
3.2. Working Collegiately
While some academics choose to do so, there is no requirement for an academic to act in a collegiate way when writing about the law; that is, one does not have to take into account the views of others. One can write as an individual, expressing purely one's own views and expressed in the way one thinks best. Although I did occasionally co-write, almost all of my academic books and articles were written alone.
Writing individual (substantial) judgments used to be the predominant position in the House of Lords (although there were periods when this was the exception). The disadvantage of multiple judgments, although fun for academics to analyse, is that it is sometimes difficult to work out the ratio of a decision where there are, let us say, five judgments reaching the same decision for different reasons. Not surprisingly, such uncertainty in what has been laid down by the highest court does not appeal to practitioners. The difficulties were brought home to me when hearing the case and writing the joint judgment (with Lord Sales) in TW Logistics Ltd v Essex County Council,Footnote 38 which was concerned with the law on town and village greens. In so doing, it was of some importance to be clear as to the ratio of the Supreme Court decision in R (Lewis) v Redcar and Cleveland BC (No 2).Footnote 39 However, that was extremely difficult to work out because of the number of different judgments and views expressed even though all the justices came to the same conclusion. In any event, it is time-consuming and off-putting for a reader to have to wade through several judgments instead of a single definitive judgment.
On the Supreme Court, the present approach therefore is one of trying, if possible, to achieve a single judgment (whether written by one judge or, as is increasingly common, by two or more). Although dissenting judgments are permitted and are not discouraged in so far as a justice feels duty-bound to dissent, the overall effect of the trend towards single judgments is that, if asked to write or contribute to the single judgment, one has a keen eye on gaining the agreement of colleagues.
3.3. The Pressure to be Correct
While as an academic I was always concerned to present as accurate a view of the law as possible, and I did have sleepless nights thinking that I may have failed in that respect in an article or textbook exposition, the consequences of my being wrong about the law were not as significant as the consequences of taking the law in the wrong direction on the Supreme Court. On the Supreme Court one is very conscious of the possible detrimental consequences for people of making mistakes in laying down the law, and this adds a particular pressure that I never felt as an academic. Having said that, there is the huge comfort in the Supreme Court that one is not making the decision alone, and that one's draft judgment will be read and commented on by the other justices on the panel.
3.4. Analysing One's Own Methodology
Lord Goff made clear in his Maccabean lecture that, in deciding a case, he felt driven by the imperative of reaching the correct legal result in the instant case. That is not something that acts as a constraint on an academic who is free to express his or her view of the law without any focus on the result in any particular case. In other words, in the formulation of legal principle the academic does not have to accommodate the decision in the instant case. Lord Goff expressed the point in the following way:Footnote 40
If I were asked what is the most potent influence upon a court in formulating a statement of legal principle, I would answer that in the generality of instances it is the desired result in the particular case before the court. But … when we talk about the desired result … we can do so at more than one level. … At [one] level, there is the gut reaction, often most influential. But there is a more sophisticated, lawyerly level, which consists of the perception of the just solution in legal terms, satisfying both the gut and the intellect. It is in the formulation, if necessary the adaptation, of legal principle to embrace that just solution that we can see not only the beneficial influence of facts upon the law, but also the useful impact of practical experience upon the work of practising lawyers in the development of legal principles.
This great passage from Lord Goff is a relatively rare example of a judge in this jurisdiction articulating how it is that they decide cases. In general, judges do not articulate and, it may be, do not seriously think about their own methodology. In contrast, academics are increasingly conscious of the need to articulate the methodology that they are adopting. While, plainly, an academic is not concerned at all with reaching a decision in a particular case, there are several different types of methodology that may be employed in analysing the law. For example, practical legal scholarship tends to employ what is generally referred to as an ‘interpretative’ methodology, which seeks to provide the best interpretation of the content of the law applying criteria such as fitness, coherence, accessibility, practical workability and normative validity.Footnote 41
3.5. The Scope of the Enquiry: The Issues in the Case and the Parties’ Submissions
A further contrast between my role as a Supreme Court judge and my previous role as an academic concerns the scope of the enquiry in which one is engaged. An academic can range as far and wide as he or she likes in looking at a particular legal problem, whereas a Supreme Court judge not only has to decide the instant case but is also, to some extent, limited by the issues raised by the parties.Footnote 42 If a judge were to rely on a particular issue in deciding a case, that issue had not been raised by the parties, and the parties had not been given the opportunity to make submissions on it, the decision would be regarded as procedurally irregular and unfair.Footnote 43
In the Supreme Court, the best-known controversy over this was in relation to Assange v Swedish Prosecution Authority,Footnote 44 and the ultimately unsuccessful submission by Dinah Rose QC that the Supreme Court had decided the case on an issue that she had had no opportunity to address.
Therefore, in so far as an issue arises after (or during) the hearing, which is regarded as important for the decision in the case and which the parties have not addressed, the normal practice is to ask the parties to make further submissions in writing (or orally) after the hearing. As regards asking for additional written submissions, this occurs quite frequently.Footnote 45
In one case,Footnote 46 we had a striking variation of this situation where, on one of the central issues, counsel did not run what, at least at first sight, appeared to be a clear winning point. At the end of the hearing, the parties were asked by the court to make written submissions on that point but the counsel who, at first sight, would stand to benefit chose not to do so (and counsel on the other side therefore had nothing to respond to). Although this was commented on in the judgment, it was felt to be inappropriate to decide the case on an issue that neither party had chosen to address. This shows starkly that, in a rare case, the Supreme Court is not deciding the case according to the correct law as it sees it, but is rather constrained by the submissions of counsel.
3.6. The Relevant Range of Materials and Information
Clearly an academic can take any material into account and is free to talk to anyone about his or her research. What about a Supreme Court judge? As I understand it, we too are entitled to take into account material that we consider helpful and there is no bar on us conducting our own research provided that, as has just been explained, if we are moving outside the issues raised by the parties, we give the parties the opportunity to deal with the new issue. Note also that, at least in general, there is no requirement to go back to the parties just because one has discovered a new and helpful case or article provided it falls within the issues raised by the parties.
Is it acceptable for Supreme Court justices to talk to academic experts on the questions of law arising in a case?Footnote 47 Wearing my academic hat, I can confirm that this interchange has happened in the past. I can see no objection to it provided the judge avoids the specifics of the case or asking the academic for his or her view on what the correct decision should be. After all, what the judge is in effect doing is seeking the oral analysis of an academic on the law rather than reading their written analysis of the law.
3.7. Written Style and Content
I have elsewhere compared and contrasted the styles of writing as between a law journal article and a judgmentFootnote 48 and I will not now repeat all that I have said on that topic. However, in very general terms, one can say that the modern trend has been for the style of Supreme Court judgments to have moved some way towards the style of academic articles, in particular, by the use of headings and subheadings. It seems surprising now that, as recently as 25 years ago, the use of headings and subheadings in a House of Lords speech (that is, the judgment) was rare.
However, there are two central features of judgment writing, in contrast to the writing of a law article, which make judgment writing distinctive and particularly demanding.
First, a judgment has to be decisive. Depending on the level of court, a judgment has to make findings of fact, it has to decide what the relevant principles of law are, and it has to apply those legal principles to the facts as found. Unlike a law article, a judgment cannot, on the central questions, sit on the fence.
Secondly, there is the view that a judgment that is unclear or not concise may contradict the rule of law. The great Lord Bingham suggested this in his book, The Rule of Law.Footnote 49 Having laid down as his first concretised element of the rule of law that ‘the law must be accessible’, he went on as follows:Footnote 50
The judges are quite ready to criticise the obscurity and complexity of legislation. But those who live in glass houses are ill-advised to throw stones. The length, elaboration and prolixity of some common law judgments … can in themselves have the effect of making the law to some extent inaccessible.
In contrast, however obfuscating an academic article is, no-one would ever suggest that the author is undermining the rule of law.
4. Conclusion
That legal academics and judges should each respect and appreciate the work of the other is of great benefit for the understanding and development of the law. In this sense, the present relationship between academics and judges in England and Wales is in a healthy state. Not least through the work of great figures, such as Lord Goff and Peter Birks, we have come a very long way from the bad old days of ‘better read when dead’. It is incumbent on all of us in the universities and in the courts to ensure that the close working relationship, founded on practical legal scholarship, continues to thrive.
