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The SLS Centenary Lecture: Punching our weight? Legal scholarship and public understanding

Published online by Cambridge University Press:  02 January 2018

William Twining
William Twining*
Affiliation:
Jurisprudence Emeritus, University College London
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Abstract

Law has the potential to be one of the humanistic disciplines that is an integral part of general culture. But it is not usually perceived in that way by non-lawyers. As the Society of Legal Scholars celebrates its Centenary, its members are under pressure to broaden the audiences of legal scholarship. Setting this expectation in the context of the movement to encourage all academic disciplines to place greater emphasis on ‘public understanding’ and ‘public engagement’, this lecture considers the what, why and how of confronting this challenge, recognises some obstacles and constraints, and suggests how the Society, law schools and law publishers might contribute to this enterprise.

Type
Research Article
Information
Legal Studies , Volume 29 , Issue 4 , December 2009 , pp. 519 - 533
Copyright
Copyright © Society of Legal Scholars 2009

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References

1 Cocks, R and Cownie, F ‘A Great and Noble Occupation’: The History of the Society of Legal Scholars (Oxford: Hart, 2009).Google Scholar

2 See the website available at http://www.sra.org.uk/students/academic-stage.page.

3 MacCormick, Eg N Legal Right and Social Democracy: Essays in Legal and Political Philosophy (Oxford: Clarendon Press, 1982);Google Scholar Neil MacCormick MEP A Union of its own kind? Reflections on the European Convention and the Proposed Constitution of the European Union (2004) (political pamphlet). The Society's website and the inside cover of the SLS Directory of Members contain a statement of its ethos and objectives formulated by MacCormick in 1993.

4 MacCormick, N Institutions of Law: An Essay in Legal Theory (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar, discussed in Del Mar, M and Bankowski, Z (eds) Law as Institutional Normative Order (London: Ashgate, forthcoming).Google Scholar

5 One result was the submission to the Chairman of the University Grants Committee (Swynnerton-Dwyer) about the future of higher education: Committee of Heads of University Law Schools Law as an Academic Discipline (London: Committee of Heads of University Law Schools, 1984)Google Scholar, which was endorsed by the SPTL and by the Heads of Polytechnic Law Schools and the Heads of Scottish Law Schools at a joint meeting.

6 No figures are available concerning the percentage of eligible persons who are in fact members of SLS. However, the most recent figures show that the Society has 3031 members, 2568 of whom are ‘ordinary’ (as opposed to overseas, non-teaching or honorary) members. As explained above (text to n 2), there are now over 100 institutions in the UK teaching undergraduate law.

7 Behind the government's ‘science in society’ strategy is a feeling that British science has been good at innovation and less good at communication, application and exploitation of scientific findings. Henceforth, there will be a greater emphasis on ‘impact’, including in the successor to the Research Assessment Exercise (RAE) (see below).

8 ‘Public’ can refer just to the ordinary citizens, to ‘lay people’ or to the whole range of participants in public debate and decision making (the sense intended here). ‘Understanding’ can refer to practical information (as in ‘know your rights’) or to ‘general knowledge’ or to in-depth theoretical grasp or to sympathy or empathy.

9 Thomas and Durant outline nine standard arguments for promoting the public understanding of science: benefits to science; benefits to national economics; benefits to national power and influence; benefits to individuals; benefits to democratic government; benefits to society as a whole; intellectual benefits; aesthetic benefits; moral benefits. With only minor adjustments, all of these could be advanced as rationales for promoting public understanding of law (G Thomas and J Durant ‘Why should we promote the public understanding of science?’ (1987)) Summer, Scientific Literary Papers: A Journal of Research in Science, Education and Research 1 at 2. The Royal Society emphasised promoting national prosperity, raising the quality of public and private decision making and in enriching the life of the individual ( Royal Society The Public Understanding of Science Report of an ad hoc group, Chairman Dr WF Bodmer FRS (London: The Royal Society, 1985)Google Scholar).

10 The Royal Society Report on The Public Understanding of Science‘considered five overlapping functional categories: (i) private individuals for their personal satisfaction and well being; (ii) individual citizens for participation in civic responsibilities as members of a democratic society; (iii) people employed in skilled and semi-skilled occupations, the large majority of which now have some scientific content; (iv) people employed in the middle ranks of management and in professional and trade union associations; (v) people responsible for major decision making in society, particularly those in industry and government’. These are very close to the main target audiences assumed in this lecture. I might add a few categories, such as activists involved in certain voluntary organisations and non-governmental organisations, certain categories of teachers, and, above all, social scientists. The issue of who constitutes the public is much discussed in the literature, but is not pursued here. For an important recent study in relation to the physical sciences, see Research Councils UK Public Attitudes to Science 2008: A Guide (Swindon: Research Councils UK, 2008).Google Scholar

11 In the UK ‘street law’ usually refers to detailed practical knowledge and advice about such matters as housing, employment, welfare benefits and immigration. This is an important aspect of public engagement. This lecture is more concerned with general knowledge and understanding.

12 This is a central theme in my Hamlyn Lectures of 1994: Blackstone's Tower: The English Law School (London: Sweet and Maxwell, 1994).Google Scholar

13 The British Academy Punching our Weight: The Humanities and Social Sciences in Public Policy Making. A British Academy Report Chair Sir Alan Wilson FBA (September 2008) (the Wilson Report).

14 Ibid, Preface.

15 Sarat, A and Silbey, S ‘The pull of the policy audience’ (1988) 10 Law and Policy 97 CrossRefGoogle Scholar. On the general issue, see (GJP) at pp ix–x, 239 n 67 and 260 n 157.

16 Royal Society, above n 9. This is often quoted as the starting point of modern interest in public understanding of science. However, the subject has a much longer history, both nationally and internationally.

17 See TwinIng, W Law in Context: Enlarging a Discipline (Oxford: Oxford University Press, 1997) ch 14.CrossRefGoogle Scholar

18 This lecture is mainly concerned with legal scholarship. However, mention should be made of The Constitution Unit in the School of Public Policy at University College London, a multidisciplinary institution, which is headed by a lawyer, Professor Robert Hazell. It is explicitly devoted to public engagement. Its use of press releases to attract attention to the products of its research is especially noteworthy.

19 See further Twining, W et al The role of academics in the legal system’ in Cane, P and Tushnet, M (eds) The Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003) ch 41.Google Scholar

20 Paragraphs 2.6–2.36 of the Wilson Report, above n 13, surveys the range of issues in regard to which scholarly research in the humanities and social sciences are potentially relevant. Nearly all of these have a legal dimension.

21 Jenny Steele has pointed out to me that this adage is now out of date, as downloading has largely superceded xeroxing.

22 In the 1970s there was some empirical research into law publishing and the information needs and practices of participants in the legal system (eg Society of Public Teachers of Law Final Report on Law Publishing and Legal Scholarship (SPTL, 1977) and W Twining and J Uglow (eds) Law Publishing and Legal Information: Small Jurisdictions of the British Isles (London: Sweet and Maxwell, 1981). One study produced such gems as that Glasgow solicitors spent less than 15 minutes per week reading or consulting legal publications – apparently they got much of their information about law by phone from non-lawyers, the District Valuer, the local planning department, the Revenue and so on (DJ Kidd The Information Needs of Scottish Solicitors (PhD thesis, University of Edinburgh, 1979). Out of this research grew the excellent Servicing the Legal System Programme in Northern Ireland. This was based on a relatively systematic analysis of legal information needs. It is still housed at Queen's, but it is largely operated by salaried staff outside the RAE. This provides one model of a healthy relationship between legal scholarship and legal practice (see Annual Reports of SLS, Belfast). This kind of research ought to be revived and extended. Such research is needed not least to stave off the threat of simplistic forms of metrics. If they are applied to law, this would tend to consolidate the internalisation and isolation of academic law, rather than encourage better communication between the academy and legal practice and beyond. On metrics, see Peer Review: The Challenges for the Humanities and Social Science (The British Academy, 2007).

23 There are, of course, legal journalists, (such as Clare Dyer, Joshua Rosenberg and Marcel Berlins) and practising lawyers with a foot in academia (such as (Lord) David Pannick and Geoffrey Robertson), along with academics such as Gary Slapper and Jeffrey Jowell, who regularly contribute to the press on legal matters. In recent years, senior judges, for example Lord Woolf, Lord Bingham of Cornhill and Lord Steyn, have also made significant contributions. In short, academic lawyers have many potential allies in the cause of public engagement and understanding.

24 So far I have not been able to track down the origin of this remark. Michael Zander himself claims not to have heard it. Some other colleagues remember the joke but not the source. During 25 years as legal correspondent of The Guardian, Zander contributed over 2000 items, in addition to numerous radio and broadcasts.

25 Sands, P Lawless World: America and the Making and Breaking of Global Rules (London: Allen Lane, 2005)Google Scholar;

26 Tamanaha, B On the Rule of Law: History, Politics, Theory (New York: Cambridge University Press, 2004).CrossRefGoogle Scholar The author tells me he wrote it for his father, a schoolteacher, who had complained about the accessibility of his earlier works. Since then Tamanaha's writings have increasingly been directed to broader audiences, including over 20 contributions to ‘Balkinization’ (see below). Although On the Rule of Law has been adopted in some politics courses and the sales figures so far are high by the standards of academic law publishing, there are unanswered questions about its broader market potential (communication from author).

27 This is not to suggest that nothing is going on; some under other labels: see, for example, entries under street law, legal awareness, law in schools, human rights education and Law Days.

28 The incumbent is Professor Kathy Sykes winner of Kohn Award of the Royal Society in 2006 for promoting public dialogue on science.

29 See, for example, the websites of the American Bar Association, Division for Public Education; and the Illinois Institute for Public Understanding of Law.

30 ‘Intellectuals – the results’ (2008) 148 Prospect (report on a poll of over half a million people).

31 ‘The object of the charity is the furtherance by lectures or otherwise among the Common People of the United Kingdom of great Britain and Northern Ireland of the knowledge of Comparative Jurisprudence and Ethnology of the Chief European countries, including the United Kingdom, and the circumstances of the growth of such jurisprudence to the Intent that the Common People of the United Kingdom may realise the privileges which in law and custom they enjoy in comparison with other European Peoples and realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them.’: Scheme for the Administration of the Hamlyn Trust, para 3. On the context and wording of the bequest, see C Stebbings The Hamlyn Legacy, available at http://law.exeter.ac.uk/hamlyn/hamlynlegacy.html.

32 Lacey, N The Prisoners' Dilemma: Political Economy, Penal Prejudice and Contemporary Democracies The Hamlyn Lectures 2007 (Cambridge: Cambridge University Press, 2008);CrossRefGoogle Scholar;

33 Recently, seminars discussing the year's lectures are organised annually and are open to the public. Earlier volumes of the lectures are now available free online as e-books. How far this increased accessibility will attract non-lawyers remains to be seen. One possibility that has been mooted is that there should be an annual TV or radio lecture or debate, perhaps modelled on the Royal Institution Christmas Lectures or the Reith Lectures.

34 Genn, H etal Law in the Real World: Improving our Understanding of How Law Works (London: The Nuffield Foundation, 2006).Google Scholar

35 GJP above n 15, pp 238–242 and 264.

36 See above n 17.

37 Two of America's most intellectual judges, both former law teachers, lambasted academic lawyers for abandoning ‘practical doctrinal scholarship’: Richard Posner's article was entitled ‘The decline of law as an autonomous discipline, 1962–87’ (1987) 100 Harvard Law Review 76 Google Scholar and Judge Harry Edwards wrote of . This was followed by a Symposium in 1993 ((1993) 91(8) Michigan Law Review). SLS held a panel on the impact of legal scholarship within the legal profession at its conference in 2008. For the UK, see further Duxbury, N Jurists and Judges: An Essay on Influence (Oxford: Hart, 2001)Google Scholar, Twining et al, above n 19.

38 Law and Learning Report to the Social Sciences and Humanities Research Council of Canada by the Consultative Group on Research and Education in Law (Chair: Professor Harry Arthurs) (Ottawa, 1983) p 75.

39 The Oxford University Catalogue for Trade Books (July–December 2009) does not treat law as a category and includes only one book by a lawyer ( Sachs, Albie The Strange Alchemy of Life and Law (Oxford: Oxford University Press, 2009)Google Scholar).

40 There are fortunately many exceptions to this, for example: The Criminal Law Review, The Journal of Business Law, Chitty on Contract, Emmet on Title, and high level symposia and public lectures. These are, of course, mainly directed to legal audiences.

41 The RAE encourages publication of scholarly monographs and substantial scholarly articles in peer-reviewed journals. It is true that the published definition of ‘research’ specifically mentions direct relevance to the needs of commerce, industry and to the public and voluntary sectors – but in my experience this lacks credibility. However, it should not be an insuperable obstacle to adjust the criteria for promotion and research evaluation to give more emphasis to contributions to public understanding. ‘Public engagement’ will be even harder to evaluate.

42 One colleague who has successfully attracted general audiences advises: ‘Never put law in the title’.

43 There has been some research on public attitudes to law, pioneered by Adam Podgorecki and others ( Podgorecki, A et al Knowledge and Opinion about Law (London: Martin Robertson, 1973)Google Scholar), but this has not caught on in UK. The Royal Society report, above n 9, stressed that there had been a great deal of research into attitudes to science, much less into understanding of scientific concepts and methods.

44 Swift, G Ever After (London: Picador, 1992) p 42.Google Scholar

45 One context in which this has been explicitly and repetitiously debated is law and development. Different answers are given to the question ‘What is the role of law in economic development?’ This has not only divided academic opinion, but has resulted in substantial fluctuations in the policies of international agencies and foreign donors. At one extreme, there are those who assume that law is no more than a necessary element of social order, which is a precondition for development; at the other end, law – especially the Rule of Law and human rights, and the mechanisms of implementation – has been given a high profile and modest funding as is illustrated by the recent World Bank Rule of Law projects and programmes. See McAuslan, P Bringing the Law Back In (Aldershot: Ashgate, 2003)Google Scholar and GJP, above n 15 ch 11 (entitled ‘Is law important?’).

46 It is also interesting that the report devotes a substantial chapter to the topic ‘Why this [ie promotion of understanding] matters’. Of course, the case for law and for public understanding of law are not the same as for science, not least because of the differences in scale and financing of their respective scholarly enterprises.

47 Developed in Blackstone's Tower, above n 12, pp 58–65 and 196–197.

48 The Wilson Report, above n 13, has a number of suggestions with regard to policy making: a better appreciation of what policy makers need, better communication of what scholarship/the academy has to offer; better incentives for the relevant stakeholders; more peer review and openness in respect of government research; more sophisticated and sensitive measures of research performance and impact; more events – workshops, debates and so on. These and other measures would be welcome, but a more fundamental analysis is needed in the broader context of concerns about the place of law in ‘general culture’. Cf the Mission Statement of the National Institute of Science Communication and Information Resources (NISCAIR), New Delhi, which reads: ‘To become the prime custodian of all information resources on current and traditional knowledge systems in science and technology in the country, and to promote communication in science to diverse constituents at all levels, using the most appropriate technologies’.

49 Yale Daily News 1 February 2008. Other law-related blogs with a substantial intellectual content include ‘The Volokh conspiracy’ (run by a Law Professor at UCLA) and Commoncause (a political blog with significant legal inputs). See the websites available at http://www.volokh.com and http://www.commoncause.org, respectively.

50 Attributed to Dean Harold Koh (Yale Law School) in the Yale Daily News 1 February 2008. Another scholar commented: ‘Balkinization and its peer blogs provide an intermediate stage between a newspaper and a law review and they make legal analysis widely accessible and more immediate.’ (attributed to Professor Glen Reynolds (University of Tennessee) in Yale Daily News 1 February 2008).

51 Jenny Steele tells me that some publishers maintain figures of the number of downloads of particular articles and that these suggest that the figures in the text may be too small. However, if downloading is often a substitute for reading (see above) and citation indexes are no better as indicators of careful reading, we can only speculate about numbers.