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Lady_Hale_300x0In a lecture at the Socio-Legal Studies Association 2013 Conference last week, Lady Hale explored the difficult issue of the extent to which social research has a place in the courtroom.

The use of academic writings in common law systems

The citation of academic writings alongside established legal precedents has, as Lady Hale acknowledged in her lecture, become increasingly common in court, “not usually as works of authority, but rather as lending weight to the argument“. Interestingly, civil law jurisdictions have always afforded more weight to academic commentary than judicial precedent, the opposite hierarchy to that which is applied in the courts of England and Wales. Lord Neuberger explained the difference as follows: the “life-blood of the civil law is principle and logic, whereas the driving force of the common law is experience and common sense“.

In the context of a common law system driven by “experience and common sense“, the question posed by Lady Hale is whether it is possible to “imagine a brave new world in which socio-legal scholarship enjoys the same dialogue with the judges as doctrinal legal scholarship now does“?  

Lady Hale observes that judges do refer to socio-legal or social research in their judgments.  She notes that such research has been referred to in the following instances:

  1. Where social science is used to inform the evidence of an expert witness (for example, social and psychological research drawn on by medical and scientific expert witnesses);
  2. Where the judge takes into account material which is not adduced in evidence but is nevertheless helpful in informing the court about the ‘real world’ and which may be cited by counsel with the aim of influencing the outcome of the case (“If the life-blood of the common law is experience and common sense, then whose experience and common sense are we talking about? Surely it cannot be the experience and common sense of the judges, many of whom have led such sheltered lives?“);
  3. Where socio-legal research is used to help to persuade the court not just of the merits of the particular case, but also to effect change to the law more widely (for example, Hazel Genn’s research for the Law Commission, Personal Injuries Compensation: How Much is Enough?, which was cited in two significant cases in which a change to the law was made); and
  4. In assessing the justifications for interfering with qualified convention rights (for example, analysing research to assist the assessment of the proportionality of such interference).

Socio-legal research: to be treated with caution?

Notwithstanding this use of social research by judges, Lady Hale’s lecture then proceeds to explore some of the reasons why the courts are (rightly, in her opinion) wary of placing too much weight on socio-legal research.  For example, she highlights the difficulty of assessing its validity and the “tendency to vehement disagreement” in doctrinal legal scholarship.  

She then raises the contentious question of why the courts tend to “regard the opinions and assertions of other lawyers and judges as more authoritative than the opinions and attitudes of ordinary people as revealed in a well-designed research study?”  She concludes that this is because the responses to Law Commission and other consultations are almost always “better informed” than the “opinions and attitudes of ordinary people” even if they are less representative.  Furthermore, Lady Hale acknowledges that the judicial respect for authority and hierarchy is such that it is “natural for [judges] to defer to the extra-judicial views of those whom they respect judicially“.

The cautionary tales drawn from Lady Hale’s “brief canter” through the experience of trying to handle social research from a judicial perspective can be briefly summarised as follows:

  1. “The activity of judging is indeed very different from the activity of authorship“: “authors do not have to decide real cases, with real people in front of them, who stand to lose their lives, their liberty, their health, their livelihood or a great deal of money if the judge gets the answer wrong” and the courtroom is no place for tentative conclusions or “the better view“; and
  2. “Just as ‘argued law is tough law’, argued – or contested – empirical evidence is tough empirical evidence“. Unfortunately, as Lady Hale concludes, it is uncommon for socio-legal scholars to have their work subjected to the same level of intensely critical analysis as that which is applied to legal scholarship in a courtroom.

Comment

It seems, therefore, that for the time being, socio-legal research will take a back seat (if it has a place at all) in the judgments of the UK Supreme Court.  Although judges need not, and arguably should not, be ‘socio-legal scholars’ and that the judiciary are wise in treating socio-legal research with caution, Lady Hale does comment that “judges ignore the wider context in which they do their work at their peril“. 

If the life-blood of the common law is indeed experience and common sense, then it seems only right that the judiciary should be drawing from as wide a pool of opinion and experience as possible. It is of critical importance that the study, practice and development of law each has regard at all times to the “wider context” in which the law operates. Therefore the importance of socio-legal scholarship in the courtroom, as with in all other walks of life, should not be overlooked.