Lord Reed gives the Scrymgeour Lecture, University of Dundee

Triremes and Steamships: Scholars, Judges, and the Use of the Past

The Scrymgeour Lecture, University of Dundee

Lord Reed

30 October 2015

When I was appointed to the Supreme Court, I commented to my colleague Lord Brown that the

library seemed to me to be rather weak in some areas.

He asked me if I knew what Lord Diplock had said

when the newly appointed Lord Brandon made a similar comment:

‘Books? You don’t need books. All you need is the Appeal Cases and your own intelligence.’

Certainly, the set of Appeal Cases with which each of the justices is provided tends to be used much more

than any other resource. But the attitude exemplified by Lord Diplock’s remark no longer prevails. It

changed particularly during the time of Lord Goff, who was a former teacher of law and an author of

academic writings, as many other members of the final court in recent times have also been to a greater or,

as in my case, a lesser extent. Lord Goff insisted on being referred by counsel to the relevant academic

literature, and that practice is now firmly established.

Judges at the highest level appreciate the help that they can derive from academic scholarship,

particularly doctrinal scholarship. I am afraid we do not often acknowledge it in our judgments, essentially

because we are trying (or perhaps I should say struggling) to keep our judgments as short as we can –

believe it or not – and are more concerned to set out our analysis of the issues than to explain the process

of research and thought which led us to it. Nevertheless, we do read academic work, and are influenced by

some of it.

A matter which has since been addressed.

Reading a great deal of academic writing during the process of writing judgments has led me to

think about the ways in which my approach to the problem in hand may differ from that of the academic

writers. It occurred to me, in relation to this lecture, that it might be of some interest if I were to share with

you some thoughts about the approach to the law required by the judicial enterprise, as I see it, and about

how it differs from the approach adopted in some (but, I should emphasise, by no means all) academic

scholarship. This is terrain which has been traversed by a number of academic writers,

but less so by

judges.

I should make it clear at the outset that I am expressing a purely personal view. I should also make it

clear that I am concerned only with academic work concerned with legal doctrine. A great deal of the work

done in university law departments is of course of a different character. Much of it is of a socio-legal

character. Such work can be very useful to judges when considering how the law ought to develop. For

example, in the case of Osborn v Parole Board,

concerned with the circumstances in which the Parole Board

should allow prisoners to have an oral hearing, I cited criminological research carried out at Cambridge

which was directly relevant to my thinking. Social or economic research is often drawn to our attention by

interest groups, professional bodies and representative organisations which have been allowed to intervene

in the proceedings.

Work which makes us aware of sociological or other non-legal aspects of our own

activities can also be valuable to us: as a Canadian judge once remarked to me, fish don’t know that water is

wet.

See, for example, Duxbury, Jurists and Judges: An Essay on Influence (2001); and Stanton, ‘Use of Scholarship by the House of Lords

in Tort cases’, in Lee (ed), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (2010).

Two exceptions are Lord Goff and Lord Rodger of Earlsferry: see, for example, the former’s Maccabean Lecture, ‘In Search of

Principle’, (1983) 69 Proc Brit Acad 169, 186, and the latter’s John Kelly Memorial Lecture, ‘Savigny in the Strand’, (1993-1995)

28-30 Irish Jurist 1. Another is Sir Jack Beatson: see ‘Legal Academics: Forgotten Players or Interlopers?’, in Burrows, Johnston

and Zimmermann (eds), Judge and Jurist (2013).

[2013] UKSC 61; [2014] AC 1115.

Such interventions are common in the Supreme Court, but much less common in the Court of Session.

Another field of academic work which I find useful, but which I am not going to discuss, is legal

philosophy. Obviously some theory underpins any coherent judicial work, whether the judges are conscious

of it or not. It is unusual for jurisprudence to be cited to judges, and I am afraid there may be some who

take the view that having undergone the ordeal of studying it at university, they are excused from

considering it for the remainder of their lives. But there are also some who are sufficiently interested in the

intellectual foundations of what they do to read it for themselves. The case of Osborn is again an example:

when discussing procedural fairness, and rejecting the utilitarian rationale adopted by the Court of Appeal, I

cited the work of Jeremy Waldron. In this lecture, however, I will focus on black letter doctrinal scholarship,

since it is the type of academic work which in general is most relevant to the work of the courts.

One of the strengths of common law reasoning – an expression I am going to use to describe the

methodological approach, and conception of the judicial role in legal development, shared by most English-

speaking jurisdictions - is derived from its casuistic nature, and the consequent scope which it allows to

appellate courts, especially at the highest level, to develop the law incrementally, so that it adapts to the

current needs of society as they see them. This judicial role in the development of the law operates within

limits, and is very much secondary to the role of the legislature, assisted by the law commissions, but it is

nonetheless important. Judicial decisions developing the law reflect both the influence of an inherited

tradition, in which such developments have to find a foundation, and also the judges’ conception at a

particular point in history of how the law ought to regulate relationships and behaviour here and now.

Judges’ conceptions of how relationships and behaviour should be regulated can of course vary

from one area of life to another, and to some extent from one judge to another.

They are constantly

evolving. The way judges approach issues can depend on the specific context, and the potential

consequences of their decisions. As it seems to me, the living connection between the common law and life

Hence the importance of having final appeals decided by a relatively large panel.

as it is lived here and now therefore depends on the willingness of judges to particularise, and to accept the

contingency of their and their predecessors’ convictions. It has to be acknowledged that there are

consequent uncertainties and tensions, which it may be impossible to resolve.

Some academic work brings out these aspects of the common law. When I was at Oxford, I was

greatly impressed by the lectures on ‘Recent Cases in Contract and Tort’ given each year by John Davies. He

might devote a lecture to a single recent decision of the House of Lords. He explained the legal background

to the case, and how the authorities were marshalled by each side in support of their competing analyses of

the law. He made clear a fact which is all too often overlooked when cases are read with the benefit of

hindsight: that the losing side had at least a reasonable argument, which might have been accepted – and

often had been accepted - by other judges, in lower courts or at another time. He then examined the judges’

speeches, and brought out the differences between them, explaining the implications which the adoption of

the approach of one judge, or that of another, might have for the future development of the law.

This is a model which I have sometimes adopted when speaking to students. I particularly like to

discuss with them cases in which judgment has not yet been given. A discussion of that kind should make

clear to them that legal thinking in a common law system builds on a tradition, but is nevertheless dynamic;

that the derivation of answers to difficult legal problems from the existing law is often not a matter of

logical deduction from legal premises but can call for imagination and creativity as well as strong analytical

skills; and that it requires judgment as to the approach which is likely to work best. The law is therefore not

to be understood as being fixed, or even as a set of clearly defined rules which undergo revision from time

to time, like the successive editions of a textbook, but is in some ways better understood, at least from the

perspective of a lawyer or a judge engaged in litigation, as a range of possibilities, constantly rolling forward.

That sort of lecture may lead the best students to question whether the conceptual structures and principles

taught to them by their teachers are as definitive as they might have appeared. They may begin to

understand that some problems are incapable of definitive solution, that there are no demonstrably right

answers to the most difficult questions, and that in an important way the answers to legal questions are

often time-bound and contextual.

Although John Davies’s lectures taught his students how to deconstruct appellate decision-making

and analyse it critically, it is relatively unusual in my experience for doctrinal scholarship to focus so

explicitly on the dynamic and creative aspects of the common law, or on what I have described as the

contingent nature of judicial decision-making. And I would certainly not underestimate the importance of

academic work which simply tries to explain what the law seems to be at a given moment. Legal textbooks

which order and analyse a mass of case law so as to identify the principles which the cases are thought to

establish, the points of divergence between them, and perhaps their strengths and weaknesses, are vital to

any understanding of the law in a casuistic system. At the same time, there is a tension between a focus on

taxonomy and a recognition of the dynamic and contingent nature of judicial decision-making. A static

analysis will struggle to capture the characteristics of the law which I have described. It is easier to dissect a

corpse than a living body.

For the reasons I have explained, I do not believe that a descriptive account of the common law, or

indeed of the interpretation of legislation, can be definitive. The less interesting reason for this is that the

law is constantly being developed by the courts, so that textbooks require to be updated from time to time

as superseded decisions are weeded out and new decisions take their place. But courts operating within a

common law system apply a doctrine of precedent, and are respectful of the tradition handed down to

them. That is true even of the Supreme Court, although it treats precedent differently from lower courts. So

the development of the law by the courts is incremental, even if some increments may be larger than others;

and the current edition of a standard textbook will normally be recognisably the same vessel as the previous

edition, even if some of the old timbers have been replaced. Nevertheless, one can be reasonably certain

that some of the current timbers will themselves have been replaced by the time of the next edition, and an

account of the law which identifies the most likely candidates for replacement, and explains why, provides a

more realistic and useful description of the law than one which does not.

The more interesting reason why a descriptive account cannot be definitive is more fundamental. It

is, as I have explained, because uncertainty is an inherent consequence of the methodology of the common

law: the obverse of its flexibility and adaptability. Tensions and conflicts between the ideas it espouses are

an unavoidable aspect of its nature as an evolving response by particular judges to particular problems

thrown up by life at particular times and places. This aspect of the law may not be considered in a

descriptive and high-level account, but it often emerges from academic work which undertakes a more

detailed analysis of specific legal problems or a historical analysis of a particular area of the law. Some of the

most useful discussions of this kind, for the purposes of courts considering the development of the law, are

to be found in the reports and consultation papers published by the law commissions, which are mostly

written by academic lawyers.

Generally, for the reasons I have explained, academic scholarship which adopts an abstract and

universalising approach to legal problems, without much evident sense of social or historical context, seems

to me to be less realistic than scholarship which demonstrates an awareness that difficult legal problems, as

encountered in practice, are situated at a particular time and place, and require an approach to their

resolution which is concrete and particular, and often innovative to some degree. Some scholars write as if

legal questions have – indeed, have always had - a correct solution, which can be reached by applying

principles that are open to inspection by anyone with a clear mind, even if they remain obscure to everyone

else. The implicit message of writing of that kind appears to be that legal truths are not discovered without

mental effort, but that once the necessary thinking has been done, the legal principles emerge from their

hiding places and hand themselves in. My own view is that one needs to look out of the study window and

think about how life is actually lived, and the implications of that for the law. I will give some examples

later.

Equally, it seems to me that scholarship which expects the law to be characterised by lucid

rationality and consistency is liable to be less realistic than scholarship which accepts that life sometimes

requires the adoption of conflicting ideas, held simultaneously in tension with each other. Courts of course

consider the likely implications of their decisions for the coherence and clarity of the law, as well as

considering their other implications. The judges attempt to write lucid judgments, and to state legal

principles as clearly as they feel they can. Their function, however, is primarily to decide particular disputes,

rather than to formulate general principles of the kind one might find in the American Restatement or in a

civilian code. Other things being equal, clarity and coherence are of course preferable to obscurity and

inconsistency. But a degree of vagueness, and occasionally even inconsistency, may be unavoidable in

practice.

A legal proposition formulated by a court is often best expressed with a degree of indeterminacy so

as to be sufficiently flexible to be workable in practice or over the longer term, given the wide and

unpredictable range of circumstances in which it may have to be applied. In much the same way, the

provisions of civilian codes of law are often expressed in relatively broad and general language, which the

judge then has to apply creatively to the facts of the particular case before him. In addition, we all as

individuals simultaneously hold conflicting ideas and values, and can reach different views as to how they

should be balanced or compromised in different situations. Judges are no different. For example, they attach

great importance to the rule of law, and to human rights; but they also attach great importance to public

safety, to national security, and to respect for democracy. The ways in which they deal with a range of

problems concerning such matters as surveillance, or the disclosure of evidence, or the use of police powers

of questioning and search, may not reflect a clearly articulated or entirely consistent balancing of those

values even on the part of a single judge, let alone different panels of judges. If it is left to lower courts to

find an acceptable way of resolving the indeterminacies and inconsistencies in later cases, in reaction to the

problems thrown up by their particular circumstances, that is not always or necessarily a bad thing.

The law is not always, or even generally, a logical body of rules deducible from general principles,

but an untidy and historically situated body of judicial decisions, statutes and other materials, which were

often designed to resolve particular problems at a particular time and place, and whose interpretation is

often difficult and uncertain. As Oliver Wendell Holmes remarked, the law embodies the story of a nation's

development through many centuries, and it cannot be dealt with as if it contained only the axioms and

corollaries of a book of mathematics.

The scholar who devises a logical analysis of the law may respond

that he is not attempting to reflect the thinking of the judges who decided the cases, but to show the way to

a clearer and more coherent future. That is of course a valuable aspect of the work done by legal academics.

Valuable as it is, however, there are limits to the extent to which the courts may be able to follow the

scholar down that path. As Lord Walker observed in the case of Deutsche Morgan Grenfell, concerned with

unjust enrichment: “It is of the nature of the common law to develop slowly, and attempts at dramatic

simplification may turn out to have been premature and indeed mistaken”.

On a related point, elegance – by which I mean a structure which is simple, logical and economical –

is another quality which has been viewed since William of Ockham as generally desirable in an explanatory

theory, but I am inclined to doubt whether it is universally possible, or even desirable, in explanations of the

law. Other things being equal, a simple explanatory account of the law, rather than a more complex one, is

of course preferable. But the most adequate explanation of the law is not always the simplest; and a legal

system whose structure is more complex is not necessarily worse in its practical operation than one whose

structure is simpler, or whose leading principles can be formulated at a higher level of generality. The law

exists to meets the needs of society; and the standards by which its performance of that function should be

assessed are not aesthetic. Unless society’s needs are simple, logical and economical, it is unlikely that a legal

system which meets its needs satisfactorily will exhibit those characteristics.

The Common Law (1881), p 1.

Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49; [2007] 1 AC 558, para 156.

By way of illustration, the practical problems which resulted from the adoption of Lord

Wilberforce’s abstract formulation of the duty of care, in Anns v Merton LBC,

led to its abandonment only

13 years later,

and to the adoption in Caparo

of an approach which is less abstract, less clear and less

elegant: an approach which is dependent on pragmatic judgments of what is ‘fair, just and reasonable’ in

particular factual situations, but which has nevertheless been found to work better in practice, and is better

adapted to the needs of employers, insurers and others who need to know where they stand.

The point is also illustrated, in a different way, by Scottish private law. In some areas, at least, it

might reasonably be said to be relatively clear and less complex than English or American law. As I have

explained, however, it would be a mistake to assume that that is necessarily an advantage. For example, one

of its clearer principles is that a security over moveable property cannot be created without a transfer of

possession. It follows that the creation of a floating charge is impossible. Parliament eventually intervened,

in order to enable businesses in Scotland to borrow as easily as those elsewhere in the United Kingdom.

That intervention continues to be lamented by some academic lawyers, as disrupting the elegance and logic

of the legal system, and introducing an element which is alien to its tradition; but it was a boon for the

section of society whose needs had been ill-served by that system.

Analogous problems continue to arise today, as English and American lawyers devise new forms of

security or trust which Scots law lacks the flexibility to accommodate. This was discovered for example by

persons who had paid Rangers Football Club £25 million for a beneficial interest in the proceeds of future

season ticket sales, under an agreement governed by English law, when the agreement was held to be

ineffective under Scots law.

Some Scots lawyers found it difficult to sympathise with a business which had

seemingly failed to consider the possibility that Scots law might be different. Another reaction, however,

[1978] AC 728.

Murphy v Brentwood London Borough Council [1991] 1 AC 398.

Caparo Industries plc v Dickman [1990] 2 AC 605.

Joint Administrators of Rangers Football Club plc, Noters, 2012 SLT 599.

might be to consider whether Scottish football and rugby clubs endeavouring to compete with clubs outside

Scotland are well served by legal rules which make it more difficult for them to raise finance. The same kind

of point could also be made about other types of business of even greater importance to the Scottish

economy, such as the financial institutions and the oil industry, which unsurprisingly tend to prefer to use a

system which can accommodate modern types of security, and may offer other advantages, such as clearer

rules in relation to third party rights under contract.

I mentioned earlier the importance of bearing in mind the historical context of sources of law and

being prepared to innovate in order to establish appropriate legal solutions for society in the present day.

This is something which needs to be borne in mind in Scots law, as in other systems. When writers such as

Stair set out their analyses of private law in the seventeenth and eighteenth centuries, they adopted an

approach, modelled on classical precedents, which reflected the intellectual climate of the period – the

period of Descartes and Locke. So it was an approach rooted in theory and logic rather than in a sense of

historical development. That is not a criticism: Stair’s Institutions is an impressive product of the intellectual

culture of that time. But to treat an analysis of that kind not merely as an authoritative account of the law of

that period, but as the definitive source of ideas about how Scots law should respond to the problems of

modern life, would restrict the flexibility necessary for the law to respond to changes in society.

Some scholars continue to go back to sources from the distant past to find solutions to

contemporary problems. I sometimes go back to them myself. But one has to bear in mind that there are

inherent limitations to the amount of help that may be obtained. They are illustrated by a remark made by

the philosopher and ancient historian R G Collingwood, when he described reading some modern

philosophers, who argued that the ancient Greeks had an inadequate understanding of moral obligations, as

being like a nightmare in which a man insists on translating the Greek word for a trireme as ‘steamship’, and

then complains that Greek theories about steamships were all wrong.

To look for solutions to today’s

problems about the design of steamships in Greek writings about triremes would be equally misguided. Of

course, Collingwood understood perfectly well that modern philosophers are working in a tradition which

originated with the ancient Greeks. His point was that today’s society and culture are so different from

those of ancient Greece that the views of the Greek philosophers about the issues which confronted them

in their own time are unlikely to assist contemporary philosophers in addressing the issues which confront

us in ours.

Part of the reason why Scots lawyers look to the past is the limited amount of significant modern

case law on the civil side, whether in the field of private or public law. In the absence of modern case law,

both academic authors and practitioners often rely on such Scottish authorities as exist, even if they may be

somewhat antiquated. There is a risk that this can lead to ossification if the old authorities are not

understood in their context, and if there is not an awareness of the need to consider whether the present

context is materially different.

I could give many illustrations of this point. An example in the field of private law that I came

across recently concerned the circumstances in which there may be a presumption of gift when a payment is

made by a parent to a child. The only authorities which are referred to in a modern Scottish textbook, and

were cited by counsel and the judge in the case concerned, are Scottish cases of the period between 1804

and 1889. The facts of those cases, and the attitudes and assumptions underlying the decisions, belong, as

one might expect, to the society depicted by Jane Austen, in the earlier part of the period, and Anthony

Trollope, in the later part: a society in which young women of good family can expect to receive dowries so

that they can make a suitable marriage, while their brothers can expect their father to purchase for them a

commission in the army or a partnership in business. The judgments have to be understood in that context.

An Autobiography (Oxford, 1978), p 64.

Relying on them now, without taking account of their historical context and the ways in which society has

changed, would be another example of equating triremes and steamships.

Another example I have recently encountered is the citation in Scottish textbooks and judgments

alike of a dictum of Lord Dunedin in 1909 that an employer is liable to an employee for an omission to take

a precaution to protect his safety only where the precaution was so obviously necessary that it would be

folly in anyone to fail to provide it.

Lord Dunedin was a very good judge, but one has to bear in mind that

employers today are not living in the world of 1909. They live in a world in which employers have to

exercise reasonable care, not merely to refrain from obvious folly, and in which they have to carry out risk

assessments, the purpose of which is to reveal risks which may not be obvious. The common law duty of

employers has not been transmitted to us in a time capsule from 1909.

In short, a legal system is not like the ship of Theseus, in which every part was replaced with an

identical timber, so that it was both new and the same. Developments in society give rise to new problems

which have to be considered, and require old problems to be thought through in a new context. Addressing

these issues is the function primarily of the legislatures, assisted by the law commissions, but what they can

achieve is naturally limited in practice by their resources and by governmental priorities. So they

understandably focus on projects which can be accommodated within the available resources and which are

likely to lead to proposals which will be implemented. Where modernising legislation is absent, the

development of the law becomes an important responsibility of the courts, within the limits of their

constitutional and institutional competence.

Morton v William Dixon Ltd 1909 SC 807.

The point is illustrated by the recent judgment in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11; 2015 SC

(UKSC) 63; [2015] AC 1430, concerned with informed consent to medical treatment.

That brings me to my final general point. While both academics and the courts risk temporal

parochialism if they fail to grasp that a current or past account of the law may be more ephemeral than its

methodology might suggest, they risk a different sort of parochialism if they fail to consider the approaches

currently adopted in other comparable jurisdictions. Especially where modern authority is lacking, we

should be prepared to consider the case law of other jurisdictions more comparable with our society. For

example, the question of presumptions of gift between parents and children has recently been considered by

the Supreme Court of Canada, and the English courts have considered the employer’s duty to take

reasonable precautions in the context of modern employment practices. I do not mean that we should reach

for off-the-shelf solutions from elsewhere without considering whether they actually provide the best way

forward. But we should be willing to consider the possibility that we might learn from the experience of

other jurisdictions.

Of course, the value of comparative law has its limits. Depending on the subject, other courts’

thinking may have a different conceptual framework from ours, and each judiciary also has to operate

within a specific constitutional framework. There are also, of course, some differences between society here

and, for example, in Canada. There is however also a good deal that is shared, in terms of the problems that

judges face, and often in terms of the legal culture and values which frame their consideration of those

problems. And the nature of some of the most important legal problems in the modern world compels us

to take account of the judgments of foreign courts in those areas: we cannot, for example, successfully

address the legal issues arising in relation to the internet, or the gathering and sharing of intelligence across

the world, or military operations undertaken with our allies, without taking account of the approaches

followed in other jurisdictions.

Drawing these remarks to a close, I will finish with an observation made by Benjamin Kaplan, an

American judge and professor at Harvard, which encapsulates much of what I have been saying, and also

provides a partial explanation of why the work of judges and legal scholars alike is so difficult and so

compelling. A legal rule, he said, cannot be expected “to solve its problems fully and forever. Indeed, if the

problems are real ones, they can never be solved. We are merely under the duty of trying continually to

solve them.”

“A Prefatory Note”, (1969) 10 Boston College Law Review 497, 500.