Lord Rodger of Earlsferry: 1944 – 2011
28 Tuesday Jun 2011
If you speak to anyone who met or appeared before Alan Rodger, Lord Rodger of Earlsferry, in a professional capacity, the quality people immediately speak of is his kindness. He was a man who took a lively interest and delight in other people, who encouraged them in their struggles, who applauded them in their success, and who showed compassion in the face of their setbacks. He embodied that quintessentially human virtue of sympathy. He delighted in the company of others. He had a keen eye for everyone’s potential – at times, indeed, keener than their own – and took delight in the flourishing of all those whom he knew, particularly of the young. He was a man without enemies. Yet for all his gregariousness and ready sociability, he was also an intensely private man; one whose underlying shyness and tendency toward self-effacement evoked all the more affection of those who were privileged to get to know him. He was also the finest lawyer of his generation, and one of the cleverest men ever to have graced the bench – first of Scotland; and latterly – as a Law Lord and then Justice of the Supreme Court – of the United Kingdom.
Alan Rodger was born in Glasgow on 18 September 1944, the son of Jean Margaret Smith Chalmers and of Professor Thomas Ferguson Rodger, Professor of Psychological Medicine at the University of Glasgow. He was educated in Glasgow, his schooldays being spent at Kelvinside Academy. His first degree was at the University of Glasgow, where he studied modern languages, becoming fluent in both French and German. He then undertook the accelerated LL.B., again at the University of Glasgow. He excelled in the study of the law and won a place at Oxford University where he studied for a D. Phil in Roman Law under the supervision of David Daube, Regius Professor of Civil Law. His thesis was subsequently published as Owners and Neighbours in Roman Law (1972). He was Dyke Junior Research Fellow at Balliol College, Oxford from 1969 to 1970 and a Fellow of New College from 1970 to 1972.
He was destined for a glittering academic career at Oxford, but took the decision in 1972 that he would prefer to practice law rather than simply to teach it. So, aged 28, he returned to Scotland, undertook a legal apprenticeship in an Edinburgh law firm, and was called to the Scottish bar in 1974, where he quickly developed a lucrative civil commercial practice. He was elected by his peers to be Clerk of the Faculty of Advocates, a position he held from 1976 to 1979. He took silk in 1985, but then chose to devote his career at the senior Bar to one of public service, working as a criminal prosecutor. He was Advocate-Depute in the Crown Office from 1985 to 1988 – holding the promoted post of Home Advocate Depute between 1986 and 1988 – when he was appointed Solicitor-General for Scotland, a position he held until 1992 when he became Lord Advocate. He therefore had unrivalled experience in the practice of the criminal law and in the inner workings of government. In 1995 he was appointed to the bench of the Court of Session, sitting as an Outer House judge for only one year until 1996 when he was elevated to the leadership of the Scottish judiciary as Lord Justice General and Lord President of the Court of Session. In 2001 he moved to the House of Lords as a Lord of Appeal in Ordinary, becoming a Justice of the Supreme Court in 2009. Throughout his time in legal practice, both at the Bar and on the Bench, he found time to continue to write both witty and learned legal articles. His learning was lightly worn but it attracted numerous academic honours, notably his appointment in 1991 as a Fellow of the British Academy.
It was a pleasure and a privilege to appear before him as a judge. He could spot a weak argument at a hundred paces. But his questioning and testing of counsel’s submissions were at all times courteously done, and always got straight to the heart of the issue. If he had a weakness as a judge it was that in his judgments he would often find on a precedent or a point that had not been raised by either side in argument. But he was almost invariably right on these points, even if reached without the benefit of counsel’s submissions. His judgments were always tightly, and utterly persuasively, reasoned; and were often leavened with an impish humour. There was a certain humility in his vision of the judicial office, as being the servant of reason. This meant that it not for him to take a view on a case, and then find reasons to support it. Rather, he would follow through the argument to discover the result that his impeccable reasoning had led to, and then stick with that as the conclusion required by law, whatever the consequences.
His untimely death robs us of a great jurist, and of a good man. His passing diminishes all of us who had the privilege to know him and to work with him. Our deepest sympathy goes out to his family.