An Introduction To Legal Research

An Introduction to Legal Research Roger Brownsword*

*

Professor of Law, King’s College London, and Honorary Professor in Law at the University of Sheffield.

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CONTENTS I Introduction II Doctrinal exposition and analysis III Critical evaluation of doctrine, institutional design, and practice IV Researching the dynamics of law V Focal questions for researchers

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I Introduction Laws of one kind or anothernatural and human, explanatory and prescriptive, covering and coerciveare the business of both scientists and lawyers. Not only that: the laws that are of interest to each group exert a degree of regulative pressure on the other. Yet, these worlds, each highly specialised, relatively closed, and inaccessible to outsiders, are very different. Even if lawyers have a general sense of what it is that scientific researchers seek to achieve, they have little chance of understanding heavyduty science. As for the scientists, they probably find it difficult to imagine what kind of questions might attract the attention of legal researchers, let alone have any interest in heavy-duty law (whatever that might be). Lawyers, the scientific community might reflect, seem to have an unhealthy zeal for regulation. Occasionally, they can be of some practical assistance (for example, in advising on a patent application or some such matter). But, what on earth occupies legal researchers? What precisely do academic lawyers do? If this question had been posed thirty or forty years ago, it would have been a relatively easy one to answer. For, although academic lawyers in England and Wales (unlike in many other jurisdictions) do not have a tradition of working closely with legal practitioners, most of their research and writing at that time was directed at a practitioner readership. The stuff of such researchso-called “black-letter” legal scholarshipwas, and continues to be, the exposition and analysis of legislation and case-law, the integration of statutory provisions and judicial pronouncements into a coherent and workable body of doctrine. However, over the last 30-40 years, academic lawyers have increasingly researched in a way that is less focused on the day-to-day needs of legal practitionersor, at any rate, on the practical needs of barristers and solicitors. Academic lawyers have become more fully integrated into the university community, developing lines of inquiryphilosophical, sociological, economic, historical, and so onthat focus on the practice of law (in a broad sense) but without treating their writing as primarily a service for barristers and solicitors who need to check out and advise on the legal position. To be sure, academic lawyers continue to produce works that are designed for practitioner reference, but legal research nowadays has a much broader compass. In her recent ethnography of the modern legal academy, Fiona Cownie observes this transition, remarking on the relative reluctance of her academic lawyer interviewees to identify themselves with a “black-letter” approach to the subjectindeed, half the respondents describe themselves as adopting a socio-legal or critical legal approach, with feminist approaches also being routinely used.1 The interests of the legal academy are both more catholic and less parochial than they once were. In this short introduction to the shifting scene of legal research, we can start with some examples of doctrinal analysis, before considering some approaches to critical evaluation (of doctrine, institutional design, and practice), which leads to a few

1

Fiona Cownie, Legal Academics (Oxford: Hart, 2004).

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comments about research concerning the dynamics of law. Finally, in order not to lose sight of the wood for the trees, I will suggest that the two focal questions for progressive legal research concern (i) regulatory effectiveness and (ii) regulatory legitimacy; and that these questions must be placed in a context of local, regional, and international governance. To avoid any misunderstanding, I should say that, although this introduction is a lightly revised version of a paper prepared for a Wellcome summer school on neuroethics,2 it is not specifically tailored to the lines of inquiry that might be pursued by researchers who pause to wonder how developments in the new brain sciences might be of relevance to law. I mention this in passing a couple of times, but that is all. So far as the community of legal researchers is concerned, some inquiries will be prompted reactively as scientific developments impact (in a happenstance way) on particular areas of lawin the way, for example, that modern genetics first impacted on questions of patentability in intellectual property law3 or modern information and communication technologies raised e-commerce issues to be dealt with by contract lawyers.4 Other inquiries will be of a more anticipatory nature as lawyers reflect, for instance, on the way in which new scientific understandings might destabilise the predicates of legal responsibility, or the way in which interventions and applications that are discernible on the scientific horizon might invite protective legal responses as they cut across commitments to human rights and human dignity, and so on.5 II Doctrinal exposition and analysis So-called “black-letter” lawyers stick pretty close to the primary source materials, to the Constitution (where legal systems have one), to legislation (statutes, statutory instruments, and so on) and to the leading case decisions (the precedents). Distinctively, there is a reluctance to move far beyond these mainstream materials (for example, to consider “soft law” regulations such as that found in codes of practice). However, there is material aplenty to keep doctrinal researchers busy. For, even if the vast majority of court cases proceed only to trial and raise no novel questions of law, there is no shortage of nice points raised on appeal not to mention the burgeoning production of legislation at Westminster and in Brussels. Like the Forth Bridge, the doctrinal body is in constant need of attention; the work of a black-letter lawyer is never done.

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Held at St Anne’s College Oxford, in September 2005.

3

For discussion of the famous Harvard Onco-mouse case at the European Patent Office, see Deryck Beyleveld and Roger Brownsword, Mice, Morality, and Patents (London: Common Law Institute of Intellectual Property, 1993).

4

See, e.g., Roger Brownsword and Geraint Howells, “When Surfers Start to Shop: Internet Commerce and Contract Law” (1999) 19 Legal Studies 287.

5

Compare (in the case of human genetics), Roger Brownsword, W.R. Cornish, and Margaret Llewelyn (eds), Law and Human Genetics: Regulating a Revolution (Oxford: Hart, 1998); and, in the case of neuroscience, see the chapters in Part III of Dai Rees and Steven Rose (eds), The New Brain Sciences: Perils and Prospects (Cambridge: Cambridge University Press, 2004).

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If the constant stream of legislation and judicial decisions sets an ongoing agenda for doctrinal lawyers, it is nonetheless the case that, relatively speaking, law operates in the slow lane. By contrast, much science and technology seems to be in the fast lane. One of the problems thrown up by fast-moving technology is that it soon outstrips covering legislative frameworks. The Human Fertilisation and Embryology Act, 1990, is a very obvious case in point. At the time of the Act, it was assumed that a human embryo would necessarily be the product of a process of fertilisation; that any “cloning” would involve an operation on an embryo (rather than the engineering of an egg); and that IVF clinics would be assisting women who could not have children rather than devising procedures that might assist women to have children for particular third-party therapeutic purposes. Moreover, the use of human embryos for stem cell research was not explicitly countenanced in the list of approved research purposes enumerated in the Act. We can speak briefly to each of these three assumptions and the interpretive questions to which they have given rise before presenting an extended illustration of legal commentary on one of the key recent judicial decisions. (i) What counts as an “embryo”? According to section 1(1) of the Human Fertilisation and Embryology Act: “In this Act, except where otherwise stated— (a) embryo means a live human embryo where fertilisation is complete, and (b) references to an embryo include an egg in the process of fertilisation, and, for this purpose, fertilisation is not complete until the appearance of a two cell zygote.” In the Pro-Life Alliance case, the question was whether the functional equivalent of a human embryo, albeit not produced by fertilisation but by CNR and stimulation, counted as an “embryo” within the terms of section 1(1). The High Court judge, taking a literal approach, ruled that it did not (that such functional equivalents fell beyond the scope of the Act); but the Court of Appeal and the House of Lords, taking a more purposive approach, ruled that such functional equivalents were still “embryos” within the meaning of the Act. Since the Law Lords handed down their judgments in the Pro-Life Alliance case, another point of interpretation has arisen. In Pro-Life Alliance, the assumption was that enucleated human eggs would be used as the hosts for therapeutic cloning purposes. However, what would be the legal position if non-human animal eggs were to be used for such research purposes? Provided that the nuclear content is human, would this still qualify as an embryo within the meaning of section 1(1)? It is a nice point. (ii) May the Authority license PGD for tissue-matching? According to section 11(1) of the Act, the regulatory Authority may grant three kinds of licence as follows:

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“(a) licences under paragraph 1 of Schedule 2 to this Act authorising activities in the course of providing treatment services, (b) licences under that Schedule authorising the storage of gametes and embryos, and (c) licences under paragraph 3 of that Schedule authorising activities for the purposes of a project of research.” Schedule 2, paragraph 1, then goes on to provide that a licence (relating to section 11(1)(a) may authorise any of the following in the course of providing treatment services, namely: (a) bringing about the creation of embryos in vitro, (b) keeping embryos, (c) using gametes, (d) practices designed to secure that embryos are in a suitable condition to be placed in a woman or to determine whether embryos are suitable for that purpose, (e) placing any embryo in a woman, (f) mixing sperm with the egg of a hamster, or other animal specified in directions, for the purpose of testing the fertility or normality of the sperm, but only where anything which forms is destroyed when the test is complete and, in any event, not later than the two cell stage, and (g) such other practices as may be specified in, or determined in accordance with, regulations.” In Comment on Reproductive Ethics (Quintavalle), the question was whether the licence issued to enable the Hashmi family to screen their embryos with a view to implanting a would-be saviour sibling was within the powers of the regulatory Authority. In particular, the issue was whether such a procedure fell within the meaning of clause (d) in Schedule 2, paragraph 1. As in the Pro-Life Alliance case, the High Court judge (taking a cautious approach) ruled that the Authority had not been given such a licensing power; but this decision was reversed by both the Court of Appeal and the House of Lords. In this light, the black-letter commentators will note that clause (d) in Schedule 2, paragraph 1 was given a broad interpretation, going beyond the general purpose of assisting women (who otherwise would not be able to have children) to have children. However, as we shall see shortly, there is a lot more that might, and should, be said about this. (iii) May the Authority license the use of human embryos for stem cell research purposes? Controversially, the 1990 Act permits licences to be granted under which human embryos (typically supernumerary embryos) may be used for research. However, a licence may only be issued where the research is judged to be necessary or desirable in relation to one of the approved statutory purposes. The five original purposes are: (a) promoting advances in the treatment of infertility, (b) increasing knowledge about the causes of congenital disease,

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(c) increasing knowledge about the causes of miscarriages, (d) developing more effective techniques for contraception, [or] (e) developing methods for detecting the presence of gene or chromosome abnormalities in embryos before implantation. Following a review of inter alia the scope of these purposes, the Government decided that stem cell research was not covered. To extend the purposes so that human embryonic stem cell research would be covered, the Human Fertilisation and Embryology (Research Purposes) Regulations 2001 were taken through Parliament. These Regulations did not explicitly authorise stem cell research; instead, they made use of enabling powers in the 1990 Act to add three further purposes as follows: (a) increasing knowledge about the development of embryos, (b) increasing knowledge about serious disease, or (c) enabling any such knowledge to be applied in developing treatments for serious disease. The drafting of these Regulations is hardly watertight. In particular, it is not altogether clear how very basic researchfor instance, research directed at extracting and purifying human embryonic stem cellsmight be covered by these new Regulations. Would such research fall within the ambit of new purpose (a), (b), or (c)? To date, though, no awkward legal questions have been asked; and, given the approach of the Court of Appeal and the House of Lords in both Pro-Life Alliance and Comment on Reproductive Ethics (Quintavalle), a “technical” challenge (based on a literal reading of the Regulations) seems unlikely to succeed. (d) An example of legal writing The developments sketched above invite legal commentary of various kinds. A blackletter commentary would note the problems with the 1990 provisions and describe how they have been covered, whether by judicial interpretation or by legislative amendment. In the case of the problem arising from the association of cloning with embryo manipulation, the Government responded by enacting a bespoke criminal prohibition against human reproductive cloning in the Human Reproductive Cloning Act 2001. However, as I have already hinted, there is so much going on in and around these developments that one might expect something more than a bare black-letter exposition of the current legal position. Immediately below, there is an extract from a much longer paper on saviour siblings and sex selection, in this part of which I gather together a few reflections on the House of Lords’ decision in Comment on Reproductive Ethics (Quintavalle).6 6

This is from Roger Brownsword, “Happy Families, Consenting Couples, and Children with Dignity: Sex Selection and Saviour Siblings” (2005) 17 Child and Family Law Quarterly 435, 460-464. For two further examples, one dealing with the new Regulations and the other with Comment on Reproductive Ethics when it was in the Court of Appeal, see Roger Brownsword, “Stem Cells, Superman, and the Report of the Select Committee” (2002) 65 Modern Law

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“The House of Lords in Quintavalle The background to Quintavalle7 can be stated shortly. In February 2002, the Human Fertilisation and Embryology Authority granted a licence that would permit both PGD [pre-implantation genetic diagnosis] and PTT [pre-implantation tissue typing] in relation to Mr and Mrs Hashmis’ embryos. The purpose of such dual screening was to identify an embryo that would be suitable for implantation, being free of the beta thalassaemia gene that runs in the family as well as being a tissue match with young Zain Hashmi who suffers from the disease. All being well, Mrs Hashmi would carry one such embryo through to term and the newly born child would be fit to serve as a (cord blood or bone marrow) donor for the benefit of Zain. However, the Hashmis’ project was stopped in its tracks when legal proceedings were brought by Comment on Reproductive Ethics challenging the power of the Authority to grant such a licence. At first instance, Maurice Kay J ruled that the Authority had acted beyond its licensing powers;8 but his decision was reversed by a unanimous Court of Appeal9 and the latter decision was confirmed by a unanimous House of Lords. With the legal position thus clarified, the way is clear for the Hashmis to continue with their attempts to create a saviour sibling for Zain; and, as we shall see, the way is also clear for the Authority to license PGD and PTT for a much broader range of purposes (including simple sex selection) if, in its discretion, it judges that this is appropriate. However, this should not be read as a direct endorsement by the House of particular permissive licensing decisions that have already been made or that might be made by the Authority. For, the House is emphatic that the question to be determined in the appeal is not whether the Law Lords favour a conservative or a liberal approach to such questions as sex selection and saviour siblings but whether the allocation of responsibility set up by the 1990 legislation envisaged that the Authority should be empowered to deal with such matters or whether it put them off limits. In other words, it is to settling matters of institutional design rather than the merits of designer children, or the like, that the interpretive efforts of the House are largely directed. With the general issue very clearly in focus, the House also has the gist of the challengers’ claim clearly in focus. It is put very crisply by Lord Brown in the following terms: [T]he appellant’s argument [is] that PGD screening is one thing, and properly licensable under the 1990 Act, tissue typing a completely different concept and impermissible. It is one thing to enable a woman to conceive and bear a child which will itself be free of genetic abnormality; quite another to bear a Review 568 and “Reproductive Opportunities and Regulatory Challenges” (2004) 67 Modern Law Review 304. 7

[2005] UKHL 28.

8

R (Quintavalle on behalf of Comment on Reproductive Ethics) v Human Fertilisation and Embryology Authority [2002] EWHC 2785 (Admin).

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[2003] EWCA Civ 667 (Lord Phillips MR, Schiemann and Mance LJJ).

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child specifically selected for the purpose of treating someone else. One can read into the statutory purpose…, that of “assisting women to carry children”, the notion of healthy childrenonly a genetically healthy embryo being “suitable”….To read into [that statutory purpose], however, the notion that the child will be a suitable future donor for the health of another would be to stretch the statutory language too far.10 Notwithstanding such clarity of focus in relation to both the general question and the challengers’ contention, it is arguable that the House gets things badly out of focus when it seeks to interpret the said statutory language. To cut the interpretive story short, the principal question is what one makes of Schedule 2, paragraph 1 of the 1990 Act when it provides that, in the course of providing treatment services (treatment services being equated, broadly speaking, with medical services that are designed to assist women to carry children),11 the Authority may license “(d) practices designed to secure that embryos are in a suitable condition to be placed in a woman or to determine whether embryos are suitable for that purpose.” This opaque drafting invites the following two questions: (i) in what sense might reproductive service providers be checking to ensure that an embryo is “in a suitable condition” for implantation; and (ii) in what sense might reproductive service providers be checking to determine whether an embryo is, in the statutory language, “suitable for that purpose”? The answer to the first question is tolerably clear. Or, at any rate, it is not difficult to think of activities that fit the statutory description for example, checking the condition of an embryo that, having been frozen and stored, is now unfrozen with a view to implantation. However, the answer to the second question is much less clear. Assuming that the activity is not concerned with checking the condition of the embryo, it seems that the check here is, as it were, for fitness for purpose rather than as to basic implantable quality. But, this begs the fundamental question: relative to which or whose purposes is an embryo to be judged fitor, to which or whose purpose does the phrase “that purpose” refer? At first instance, Maurice Kay J read the relevant provisions as limiting the licensable activities to the overarching statutory purpose of assisting women to have children. Whatever particular activities are licensed they must occur in the course of providing treatment serviceswhich is to say, they must be related to assisting women to have children. However, in the Court of Appeal, Lord Phillips MR devoted a great deal of his judgment to defending the proposition that the governing purpose was not simply assisting women to have children but assisting women to have healthy children (that is, children free of serious and detectable genetic disorders). By the time that the appeal reached the House, it was conceded by the challengers that the broader reading defended by Lord Phillips must be correct. However, the view actually acted on by 10

[2005] UKHL 28, at para 51.

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Section 2(1) of the HFE Act.

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the Court of Appeal and confirmed by the House of Lords was far broader than that and quite differently focused, taking the particular reproductive purposes of the particular client woman as the governing reference point.12 On this view, the range of licensable activities covers checking the suitability of the embryo relative to the particular purposes of the particular woman in question: in other words, “suitable for that purpose” means “suitable for whatever purposes the particular woman specifies.” How did the House account for this quite extraordinary reading of the legislation? The central feature of Lord Hoffmann’s leading speech (supported by Lord Brown) is to make and to reiterate the point that the word “suitable” is an adjective that is context-sensitive, that it “is an empty vessel which is filled with meaning by context and background.”13 So, for instance, as Lord Scott apparently put it in argument, “a suitable hat for Royal Ascot is different from a suitable hat for the Banbury cattle market.”14 No doubt, this is the case. However, it is not the word “suitable” that is the key to cracking the legislative code; and to keep drawing attention to it is akin to an exercise in misdirection. Rather, the key is the phrase “that purpose”. If “that purpose” translates as “whatever reproductive purpose the particular woman specifies” then suitability is indeed an empty vessel waiting to be filled by the particular context and backgroundnamely, the particular context and background supplied by the particular reproductive purposes declared by the particular woman; and it might well be the case that the racing aristocracy at Ascot might have rather different criteria of suitability (both in relation to their hats and their offspring) from the country folk in Banbury let alone the Hashmis from Leeds. On the other hand, if “that purpose” refers generically to assisting women to have children (or healthy children), the context and background for suitability is already set; and for the women of Ascot, Banbury and Leeds alike, the criteria are the same. It follows that the judgment handed down by the House passes legal muster only if it convincingly explains why “that purpose” is to be read in the former (woman specific) rather than the latter (generic) way. Effectively, three arguments are directed against the latter interpretation. First, once it is conceded that the Authority may license PGD not only to check the viability of an embryo (as Maurice Kay J held) but also to check its health prospects (as the challengers eventually conceded), it would be difficult to draw a line between those serious conditions for which PGD may be authorised and those less serious conditions that would fall beyond the Authority’s licensing remit. Echoing Lord Hoffmann’s reservations,15 Lord Brown says: 12

See [2005] UKHL 28, at para 49 where Lord Brown neatly summarises the three interpretations. These are that embryonic screening is permitted: (i) solely in order to ensure that “the woman can carry the child successfully to full term”; (ii) not only in order to ensure that the woman can carry the child successfully to full term, but also “to eliminate gene and chromosome defects such as may affect that child”; or (iii) in order to provide “information about the characteristics of the embryo which is relevant to the woman’s decision whether or not to carry the child.”

13

Ibid., at para 33.

14

Ibid., at para 14.

15

Ibid., at para 27.

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The fact is that once the concession is made…that PGD itself is licensable to produce not just a viable foetus but a genetically healthy child, there can be no logical basis for construing the authority’s power to end at this point. PGD with a view to producing a healthy child assists a woman to carry a child only in the sense that it helps her decide whether the embryo is “suitable” and whether she will bear the child.16 But, to the contrary, once the concession is made, while there is a margin of interpretive doubt about the bounds of health (as in a healthy child), this does not entail that a generic reading of “that purpose” must be abandoned. What this concession signifies is simply that the terms of the generic reading must be qualified so that the purpose in question is not simply to help women to have children but to do so in a way that avoids implanting an embryo that carries a serious disease. As Lord Brown said when rehearsing the gist of the challenge, “[i]t is one thing to enable a woman to conceive and bear a child which will itself be free of genetic abnormality; quite another to bear a child specifically selected for the purpose of treating someone else.”17 And, similarly, it is one thing to modify the generic purpose as indicated and quite another to claim that this entails accepting that the governing purpose is supplied by whatever particular purpose the particular woman specifies. Secondly, if the only purpose for which embryos may be screened is to avoid an implantation that cannot result in the birth of a genetically healthy child, then this would seem to mean that it would not be lawful for the Authority to license PGD to check an embryo where a mix up of some sort is suspecteda Leeds Teaching Hospitals type of case, for example.18 However, there is nothing in this point. If it is agreed that the legislation must allow for PGD to be used to confirm that the embryo to be implanted is that of the couple in question then it is easy enough to modify the generic purpose. To read “that purpose” as covering such cases in no way assists the argument that “that purpose” hinges on the particular reproductive purposes of the particular woman. Thirdly, Lord Hoffmann argues that the absence from the legislation of any reference to the use of PGD for sex selection is a telling indicator of the legislative intention to confer upon the Authority very broad licensing powers. Thus: [T]here was intense discussion, both in the [Warnock Report] and in Parliament, about selection for sex on social grounds. If ever there was a dog which did not bark in the night, this was it. It is hard to imagine that the reason why the Act said nothing on the subject was because Parliament thought it was clearly prohibited by the use of the word “suitable” or because it wanted to leave the question over for later primary legislation. In my opinion the only reasonable inference is that Parliament intended to leave the matter to the 16

Ibid., at para 62.

17

Ibid., at para 51.

18

The argument is considered by Lord Hoffmann at para 28. The test case is Leeds Teaching Hospitals NHS Trust v A [2003] 1 FLR 1091.

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authority to decide. And once one says that the concept of suitability can include gender selection on social grounds, it is impossible to say that selection on the grounds of any other characteristics which the mother might desire was positively excluded from the discretion of the authority, however unlikely it might be that the authority would actually allow selection on that ground.19 Once the persistent misdirection in this passage has been observed, however, it loses all persuasive force. The controlling phrase is “that purpose” not “suitable”. It is indeed implausible to suppose that Parliament thought that the word “suitable” would signal that PGD for sex selection was prohibited. However, it is entirely plausible to suppose that Parliament thought that “that purpose”, by referring back to the general generic objectives of the legislation, signalled that PGD for sex selection was off limits. On this analysis, the regulatory tilt20 is against conferring this discretion on the Authority; and, if PGD for sex selection is to be licensable, it needs to be explicitly so declared by Parliament. As for Lord Hoffmann’s closing remarks, it is again the reading of “that purpose” in a non-generic way, not the meaning of suitability as such, that extends the Authority’s licensing powers. Whatever we make of the merits of their Lordships’ reasoning, the upshot of their decision, as Lord Hoffmann freely admits, is that the legislative scheme is to be understood as conferring on the Authority a much wider licensing remit than previously appreciated. As the challengers put it, and as Lord Hoffmann accepted, “once one allowed the mother’s choice to be a legitimate ground for selection, one could not stop short of allowing it to be based upon such frivolous reasons as eye or hair colour as well as more sinister eugenic practices.”21 Yet, the House was not deterred. If particular women came along with preposterous reproductive purposes, the Authority would be expected not to license such activities; and, failing that, Parliament would intervene by exercising its reserve powers under section 3(3)(c) of the Act. What Quintavalle boils down to therefore is a choice between two institutional designs. One design is that favoured by the House, under which the Authority has a broad discretion to deal with a wide range of controversial reproductive choices subject to Parliamentary reserve powers; the other design is one that confers upon the Authority a limited licensing discretion with Parliament having to expressly authorise each significant extension of the Authority’s remit. The House does not take us into the kind of debate that might stake out the relevant considerations that bear on making a rational choice between these alternatives. However, the effect of their preference for the former design almost certainly presages a period during which the Authority will be invited to flex its full licensing powers.”

19

Ibid., at para 29.

20

Compare Roger Brownsword, “Regulating Human Genetics: New Dilemmas for a New Millennium” (2004) 12 Medical Law Review 14, at 17-18.

21

Ibid., at para 25.

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Now, at the time of writing this commentary on Quintavalle, my assumption was that I was writing for a legal readership and that what I wrote was subject to the usual conventions of legal scholarship. I did not pause to reflect on the nature of this intervention and what precisely I thought that I might be contributing to larger debates about law and regulation. However, if asked to be more explicit about the nature of the critique in this extract, I suppose that I would say that it has two elements. First, I am taking an insider perspective and arguing that, relative to the conventions of statutory interpretation, I am not persuaded by the Law Lords’ reading of the legislation. Lawyers argue endlessly about such matters, drawing on considerations pertaining to the particular language used by the drafters as well as the purposes that are assumed to drive the legislation. Secondly, however, I am making a more radical suggestion, namely that the real issue here is about getting the institutional design right. It is far from clear whether we do better leaving the ethical puzzles to the Regulatory authority (inviting the HFEA to address these puzzles on a case-by-case basis) or whether Parliament should try to write the ethical script for the authority. In favour of the latter approach, we can point to the accountability of legislators; but, in favour of the former approach, we can point to the relative independence of the authority and the distance between it and Westminster politics. Whatever we make of this design dilemma, my point is that it is a question that is not really addressed at all by the legal argumentation. If the first element of my commentary on Quintavalle is an exercise in black-letterism, the second (where I flag up the issue of institutional design) starts to head out beyond the standard black-letter boundary. III Critical evaluation of doctrine, institutional design, and practice In his influential discussion of the regulation of abortion and end-of-life issues, Ronald Dworkin distinguishes between critique that operates “inside out” as opposed to that which operates “outside in”.22 Dworkin has a preference for the former but, where legal research goes beyond black-letterism, we find both inside out and outside in strategies being employed. The idea of an inside out approach is to work with the values that are already recognised by a particular legal regime, organise those values in the most defensible way, and then assess whether some particular doctrine, design, or practice is consistent with the best interpretation of the legal system’s own values. In a sense, the purpose of such a critique is to evaluate how faithfully a legal regime is sticking to its own commitments. However, this is no mechanical exercise; for, in a mature legal system, there will be a great many values that are subject to competing interpretations not only in their own right but also with regard to their inter-relationship. For example, any legal regime that has a high-level commitment to a catalogue of human rights will give inside-outers a choice of critical pathwaysjust think about the contested interpretations of a right to privacy and, then, to disputes about the relationship between privacy and free expression or about the relationship between freedom of expression and respect for religious conviction. By contrast, an outside in approach adopts a critical vantage point outside the law. Bentham, for instance, having identified Utility as the master principle, then subjected 22

Ronald M Dworkin, Life’s Dominion (London: Harper Collins, 1993) 29.

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the operation of law to a utilitarian critique without assuming that the legal regime already recognised utility as one of its values. Famously, this resulted in a deterrencebased (and relatively humanitarian) approach to punishment. Kant, on the other hand, whose external viewpoint was rather different, developed a rival retributivist approach to punishment. Outside-in critique again presents a choice of critical pathways going right back to the selection of a defensible (external) starting point. Whether or not there is an Archimedean vantage point available to outside in theorists is, of course, the $1,000 question. (i) More about inside out critique The idea that the law bears no political imprint is hard to sustain where legislation is the product of a political institution that operates on party-political lines, or where the members of a court (such as the US Supreme Court) are political appointees. If an inside-outer were to suggest that, in such circumstances, the law has a pattern of value commitments that are broadly in line with the prevailing political ideology, this would be no more than one might expect. However, in English law, there has been a huge resistance to any suggestion that our judges (and their decisions) are in any sense politicalwitness the outcry when John Griffith published his book The Politics of the Judiciary.23 Griffith argued that, even if judges are not quite politicians, they are a relatively homogeneous group for whom being conservative with a small “c” is the natural default position. To some extent, this would be welcome. For, it would mean that judges would tend towards consistency in their decision-making, enhancing calculability and treating like cases alike, and that they would act incrementally and cautiously when making changes to the law (after all, judges do not have either the mandate or the resources that support the work of the political branch). Moreover, if the legal culture tends towards a conservative approach of this kind, then litigants are given some insurance against judicial idiosyncrasy. However, Griffith went on to suggest that, in many areas, there is an underlying pattern in the case-law that indicates a disposition to favour the interests of certain sectors, notoriously the interests of established authority (the police and security services) and organised capital. Following Griffith’s lead, inside-outers might try to identify the underlying ideological patterns of different fields of law as a basis for developing a critical perspective. However, they might try to take such an exercise forward in two rather different ways. One way, as indicated already, is for the sake of consistency, internal coherence, and fidelity. The other way, highlighted by the work of the so-called Critical Legal Studies Movement is to expose and exploit tensions within the patterns of the law. The “crits” tend to operate with a leftish political agenda, a common strategy being to identify traces of radical thinking (“dangerous supplements”) in the law which can then be exploited to reverse the dominant (rightish politics) trend.24

23

J.A.G. Griffith, The Politics of the Judiciary 4th ed (London: Fontana Press, 1991).

24

For an overview, see, David Kairys (ed), The Politics of Law (London: Pantheon Books, 1982).

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In Understanding Law, John Adams and I try to refine Griffith’s insights by distinguishing between the culture, or ideology, of adjudication itself and the ideological pattern of substantive doctrine in a particular field of law.25 As a matter of general adjudicative ideology, the fundamental distinction is between a culture of fidelity to settled law (giving statutes their standard interpretation, applying the case-law as usually understood, sticking with the prevailing jurisprudence, and so on) and a culture of result-orientation (ensuring that cases come out the “right way”). The former reflects a “formalist” ideology, the latter “realism”. Where realism is practised in a weak form, judges will apply result-oriented thinking to the various options that doctrine presents; where it is practised in a strong form, realism implies that the result comes first and then the law is fixed as required. In this light, it is arguable that, whereas the High Court decisions handed down in both the Pro-Life Alliance and Comment on Reproductive Ethics cases reflect a formalist approach (reading the legislation in the way that its language invites), the Appeal Court decisions represent a more result-orientated approach. Of course, once realism is detected in adjudication, it becomes apparent that there is no mechanical sense in which “the law” dictates the results and researchers are led to inquire into the underlying or background values that might account for the pattern of decisions actually handed down. Cutting across these general adjudicative ideologies, we find that particular fields of law have their own ideological characteristics. Given that the law is increasingly produced by political bodies, it is not surprising that it has (in an episodic way) politico-ideological features. For instance, the law that regulates the criminal justice system strikes a balance of some kind between the ideology of crime control and that of due process; each political party tries to strike the balance in its own way; but no political party is likely to re-write the entire criminal justice code. To map the law in this area, to understand how the regulatory field is constituted, and to get a fix on particular decisions, these interacting general and specific ideological currents need to be taken into account.26 (ii) More about outside in critique An outside in critique views the operation of law through a critical lens that adopts a particular (external) theoretical perspective. As I have said, Kant would view the law through the lens of Kantian moral and political theory, and Bentham would view it as a utilitarian. If one’s external perspective were Marxist, one might relate Griffith’s observations to a more general theory of economy, law and society in which the interests of capital and property necessarily would be privileged. Or, again, to take the particular case of neuroscience, one might develop a particular view of the mind/body question or of agency and voluntariness that is then deployed to critique the assumptions that underpin a legal finding of responsibility (in both the criminal law and the civil law). 25

See John N Adams and Roger Brownsword, Understanding Law 3rd ed (London: Sweet and Maxwell, 1993) esp Chs 4 and 5.

26

For a full-scale exercise of this kind, see John N Adams and Roger Brownsword, Understanding Contract Law 4th ed (London: Sweet and Maxwell, 2003).

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In addition to philosophical and sociological takes on the law, one might adopt any number of other external critical vantage pointsfor instance, a feminist might critique the gendered nature of law (its disposition towards the logic, vocabulary, and interests of the male members of the community); and, in some places (especially the US) an economic critique of law is widely adopted. (iii) The case of “informed consent” One of the key regulatory ideas in the area of medical and scientific practice is that of “informed consent”. Accordingly, it is widely accepted that no research trial should be conducted, or clinical treatment adopted, without the person’s informed consent. In a seminal study, Ruth Faden and Tom Beauchamp reconstruct the development of this doctrinal requirement.27 However, this doctrinal idea is ripe for both inside out and outside in assessment. As a matter of inside out evaluation, we would identify the ingredients of informed consent (the ideas of unforced choice and informed choice) and then review how they are interpreted as well as how they are applied in different areas of the law. For example, in the context of medical practice, is the benchmark for informed consent set by the views of medical practitioners or by the informational needs of a prudent patient? Even if medical law is internally consistent on this matter, does the informational requirement mean the same thing in consumer markets and medical contexts, or, say, the context of plea-bargaining and settlement in respectively the criminal and civil justice systems? And, if not, what do we make of it? Can we find a coherent pattern in all this? Just as we can unpack the law’s own internal perspective on informed consent, we might conduct a similar exercise in relation to unforced choice. What sort of pressure does the law treat as incompatible with an unforced choice being made? How does the law deal with the standard philosophical distinction between threats (coercion and duress) and offers (incentives)? What does the law make of relational pressure (consider, for example, the influence of Jehovah’s Witness parents over their children or the background pressure in a culture of arranged marriages) and situational pressurefor example, can a patient or a suspect ever make an unforced choice? What do the new brain sciences tell us about such matters? By contrast, if we approach the concept outside in, what we have to say will depend on the nature of our external vantage point. In the following short extract,28 I sketch the approach that would be taken to consent if our external vantage point is (i) utilitarian, or (ii) based on respect for human rights, or (iii) premised on the fundamental duty not to compromise human dignity.

27

Ruth Faden and Tom Beauchamp, A History and Theory of Informed Consent (New York: Oxford University Press, 1986).

28

Roger Brownsword, “The Cult of Consent: Fixation and Fallacy” (2004) 15 King’s College Law Journal 223, 227-229.

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“In A Theory of Justice, 29 John Rawls famously proclaimed that, in advancing his rights-driven account of justice, the utilitarians were his principal rivals. Three decades later, little seems to have changed. Broadly speaking, although the cultural bandwidth allows for a range of views to be broadcast, it is still utilitarian and human rights thinking that dominate. To this, let me add one major caveat. In the case of bioethics, we now have a distinctive third channel, that of the dignitarian alliance30…. For utilitarians, utility and disutility is all that counts. As such, there is nothing special about consent or the lack of it. In general, it is easy to see the negatives in relation to consent collection. Obtaining consent might not always be practicable; where it is, it nevertheless incurs transaction costs; and, on some occasions, it might be downright distressful. Waiting for consents to be cleared might involve opportunity costs. Moreover, policies might be frustrated if, instead of saying “yes”, those who are asked to consent say “no”. On the other hand, dealing on the basis of consent might ease matters ex ante, it might allay concern and weaken opposition, and it might be a convenient justificatory response ex post. Thus, there is no golden rule requiring that the consent of those upon whom an action or decision impacts should be obtained. For example, requiring researchers or doctors to deal on an informed consent basis with research participants or others is not necessarily an improvement on compulsion, ignorance, or paternalism. The calculation always depends on context, convenience, contingency and circumstance. Having said this, in a culture where preferences strongly favour the currency of consent, even if there is no golden rule requiring consent, utilitarians might well accept the sense of a general rule to this effect.31 Against the utilitarians, human rights theorists hold that what counts is respect for individual autonomy, entailing recognition of the right of individuals to make their own choices, to exercise control over their own person, property, and privacy, and to say “yes” or to say “no”. Taking individuals seriously, taking rights seriously, means taking consents and refusals seriously. Viewed from a human rights perspective, consent by A might signal either a change of position or the creation of a new relationship. There is a tendency to focus more on the former than the latter, that is, on consent signalling A’s willingness to modify his or her position in relation to the particular background scheme of rights and duties, permissions and immunities, and the like, that regulates his or her relationship with B (the recipient of the consent). As George Fletcher puts it: 29

John Rawls, A Theory of Justice (London: Oxford University Press, 1972).

30

Roger Brownsword, “Bioethics Today, Bioethics Tomorrow: Stem Cell Research and the ‘Dignitarian Alliance’” (2003) 17 Notre Dame Journal of Law, Ethics and Public Policy 15.

31

House of Commons Research Paper 04/04 on the Human Tissue Bill implicitly views the thinking underlying the consent provisions in the Bill in a utilitarian way. It says that the Government believes that the effect of the consent provisions will be to “prevent a recurrence of the distress caused by retention of tissue and organs without proper consent”, to “help improve public confidence so that people will be more willing to agree to valuable uses of tissue and organs” (such as for research and transplantation purposes), and to “improve professional confidence so that properly authorised supplies of tissue for research, education and transplantation can be maintained and improved” (p 4). Quite probably, this is enlightened utilitarian thinking; but the point is that it is a utilitarian approach to consent.

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When individuals consent to undergo medical operations, to engage in sexual intercourse, to open their homes to police searches, or to testify against themselves in court, they convert what otherwise would be an invasion of their person or their rights into a harmless or justified activity.32 The latter function (the creation of a new relationship), however, should not be ignored. Where A signals consent to the creation of a new relationship with B, this might be by virtue of some simple dynamic (such as the giving of a promise or agreement to an exchange of goods) or it might be by virtue of some more complex institutional set (as is the case, for example, if A invokes the law of contract or the law of marriage) or regulated scheme (such as one licensing assisted conception or physician assisted suicide). Where A thus signals consent, then other things being equal A is precluded from asserting that B may not justifiably rely on, or hold A to, the agreed change of position or the terms of the new relationship. Whether A signals a change of position or agreement to the creation of a new relationship, consent functions as a procedural justification (for the benefit of the recipient, B) rather than as a full substantive justification of the kind that would be appropriate if one were arguing for a particular human right itself. This leaves the dignitarian alliance, whose fundamental axiom is that human dignity must not be compromised. It is an “alliance” because there is more than one pathway to this ethicKantian and communitarian as well as religious. So, for example, if we were to express the dignitarian perspective in communitarian terms, we would say that human dignity is a good which must not be compromised by our actions or practices and that any action or practice that compromises this good is unethical irrespective of welfare-maximising consequences and regardless of the informed consent of the participants. For the dignitarians, it is human dignity, not consent, that counts; and it is the interests of all members of the community that count, not merely those of the consenting community.” Following the analysis in this extract, if our external vantage point is utilitarian, we will specify the requirements of informed consent in whatever way promises to maximise utility; if it is human rights, we will set the threshold for both free and informed consent relatively high (almost all the pressure for more patient information comes from this quarter); and, if it is dignitarian, we will believe that it is duty that sets the standard not consentquite simply, the duty not to compromise human dignity is one that is not to be switched on and off as the duty-bearer elects to consent or to refuse.33 IV Researching the dynamics of law Much of what I have said about going beyond black-letterism implies a philosophical approach to law but there are hints in what I have said about the possibility of a more 32

George P. Fletcher, Basic Concepts of Legal Thought (Oxford: Oxford University Press, 1996), 109.

33

See further Roger Brownsword, “Stem Cells and Cloning: Where the Regulatory Consensus Fails” (2005) 39 New England Law Review 535, and “Making People Better and Making Better People: Bioethics and the Regulation of Stem Cell Research” (2005) 1 Journal of Academic Legal Studies (on line).

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sociological approach. In one branch of legal research, the sociology of law, big social theories are brought to bear on understanding and explaining the way that law functions; and in another, socio-legal studies, the emphasis tends to be on empirical inquiry into the operation of particular parts of the law. Once upon a time, there was a certain tension between the sociology of law (trumpeting the virtues of big social theory) and socio-legal studies (advocating empirical engagement with legal practice) but it is now accepted that theoretical work without any empirical content is hollow and that empirical work without supporting theory is shallow. Having said this, empirical studies (whether of a quantitative or a qualitative kind) represent only a small part of the totality of legal research and, within the community of legal researchers, it is the criminologists who primarily conduct such studies. In what follows, I can speak briefly to two types of inquiry that explore the dynamics of law, so-called “gap” studies and then “impact” studies. (i) Gap studies In general, gap studies focus on the ways in which the law-in-action deviates from the law-in-the-books (that is, from the image of law that is projected by the law-in-thebooks). Since no one thinks that there is anything approaching full compliance with the law-in-the-booksotherwise, there would be little or no crime committedthis might not seem like much of an insight. However, the major contributions made by gap studies have been to highlight the gap in relation to (a) the practice of officials, regulators, and the like (where one might expect there to be a culture of compliance) and (b) the under-use of the law by groups that the law aspires to assist. In relation to the practice of officials, we have already remarked that there are different cultures of adjudication. Whereas one might expect judges simply to state and apply the law, we know that, at any rate in the practice of the higher courts, there is a good deal of result orientationand, while a legal insider might accept this without batting an eyelid, the outside reception of such a revelation might be rather different. Similarly, we might study how far various law enforcement agencies operate in a way that conforms to the picture implied by the law-in-the-books. What gap theory alerts us to is that the de jure position is one thing, the de facto practice sometimes quite another story. Generalising from gap studies, we might hypothesise that there will be some disjunction between the law-in-the-books and the law-inaction where compliance cuts across the grain of professional culture (e.g., in policing or medicine or even lawyering) or where the costs of compliance are far greater than the costs of non-compliance so that the law can be viewed simply as a tax on business (e.g., Sunday trading before the law was relaxed). A recurrent theme that explains under-performance by regulatory agencies is that of “regulatory capture”. The idea is quite simple: a regulatory body that is set up to monitor and enforce standards in a particular sector fails to do so effectively because the relationship between the regulators and the regulatees is too cosythere are revolving doors and the like, the net effect of which is that the regulatees rather than

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the regulators wear the trousers. In Dispensing with the Truth,34 Alicia Mundy tells a much more complex story regarding regulatory capture and the failure of the US FDA to heed warnings concerning the adverse effects of the Fen-Phen diet drug. Here, it is not simply that the pharmaceutical companies have the regulatory agency directly under control but that there is a web of relationships between the pharmaceutical companies and the agency, the pharmaceutical companies and politicians, and the politicians and the agency which combine to generate a gap between the agency’s official mission (to protect the public against unsafe drugs) and its de facto culture of assisting the companies to bring their products to market. In relation to the under-use of the law, gap theory has uncovered a systematic shortfall where individual claimants are expected to activate a remedy. Whether these are consumers, tenants, employees, accident victims, or the like, they fail to take advantage of the rights that they have according to the law-in-the-books. Why is this? There are many reasons: studies have often shown that potential claimants are unaware that they might have some legal redress; or there are concerns about the costs of litigation; or there are fears about further victimisation if legal redress is pursued, and so on. One thing is clear: if the legal response is to grant a paper remedy to an individual, a remedy that will only be activated if it is personally cashed by the individual, then in many cases it will not be activated (and not because the individual has decided against activation as a matter of rational choice). Moreover, if the intention is to change the conduct of suppliers, employers, landlords, and the like, occasional remedial action taken by individuals is unlikely to have the desired effect. In the Fen-Phen story, individual claims are aggregated to form a number of class actions on behalf of the larger group. In Mundy’s account the class action lawyers do not escape criticism either; but at least mass tort claims of this kind can deliver major compensatory awards that not only correct the injustice but also give the defendant wrongdoers pause. (ii) Impact studies My remarks immediately above concerning the impact of class actions as against standard individualised private law claims leads into a very important field of legal research. Typically, legal interventions are designed to achieve some particular purpose. Sometimes, it is true, law might have a largely symbolic self-fulfilling (i.e., expressive) function; but, generally speaking, law is a means to an end. Accordingly, if law is to operate in an instrumentally rational way, interventions must be fit for the particular purpose. We need to know what kind of intervention works, when, why, and how; and conversely we need to know what does not work. Impact studies aim to help us to understand more about the effect of particular interventions, so that our capacity to bring about intended consequences and avoid unintended negative consequences is enhanced. Each particular impact study will highlight certain idiosyncratic aspects of the intervention in question. However, put somewhat crudely, the general lessons of such studies are that interventions are unlikely to be effective where there is a lack of consensus in support of the law and/or where the costs of compliance are higher than the costs of non-compliance. Of course, in a global economy, a legal intervention 34

New York: St Martin’s Press, 2001.

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might be effective in one place but local restrictions can be by-passed by regulatory touristsfor example, the Whitaker family, who were in much the same position as the Hashmi family, but who were refused a licence for tissue-typing by the Authority, went to the USA to have the procedure anyway.35 Even if the legal intervention is effective in bringing about the primary intended consequence, it might bring with it various unintended adverse effects. For example, the adoption of so-called strict liability regimes (where there is no requirement to prove “fault”) might operate, as intended, to ease the pathway to compensation for certain classes of complainants; however, this might also create a liability crisis that results in hard-hit businesses closing down and employees losing their jobs. Indeed, wherever there is a legal intervention in a regulatory space that has only a limited resource available and where the intervention requires some of that resource to be expended in a new direction, it is inevitable that compliance will result in a redistribution of the resource (possibly with negative consequences in the sector from which resource is now taken). Following on from impact studies, it is clear that we need to understand more about (i) the full repertoire of regulatory interventions and (ii) the several levels of regulatory failure and success. With regard to the repertoire of regulatory interventions, we need to think about not only traditional criminal law prohibitions or private law remedies, but also about the creation of social/peer pressure, the use of pricing or market mechanisms, and the possibilities for controlling conduct by “design” or “code”. This takes us into the realm of “smart regulation” which advocates mixing and matching available regulatory strategies (on the basis of what we know about what works).36 If recognising the limits of single instrument approaches is the first lesson for smart regulators, then the next lesson is to be aware of the range of regulatory instruments and the importance of putting in place an optimal mix. Hence, writing in relation to environmental protection, Gunningham and Grabosky37 argue that single instrument “approaches are misguided, because all instruments have strengths and weaknesses; and because none are sufficiently flexible and resilient to be able to successfully address all…problems in all contexts”.38 Instead, Gunningham and Grabosky advocate a regulatory strategy that seeks “to harness the strengths of individual mechanisms while compensating for their weaknesses by the use of additional and complementary instruments”.39 They continue: “Moreover, such a mix of instruments will work more effectively if a broader range of participants are capable of implementing them. This means the direct involvement not only of governments (first 35

See, further, Roger Brownsword, “Reproductive Opportunities and Regulatory Challenges” (2004) 67 Modern Law Review 304.

36

See, e.g., Neil Gunningham and Peter Grabosky, Smart Regulation (Oxford: Clarendon Press, 1998); and Roger Brownsword, “Code, Control and Choice: Why East is East and West is West” (2005) 25 Legal Studies 1.

37

Op cit, note 36 above.

38

Ibid., at 14.

39

Ibid., at 14-15.

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parties) but also of business and other ‘targets’ of regulation (second parties) and a range of other interested actors (third parties), both commercial and noncommercial.”40 In a similar vein, Stuart Biegel, writing about the regulation of the Internet, has argued for a combination of smart regulation and consensus cultivation.41 Successful regulators understand not only how to deal with closed doors but also that it is a whole lot easier when the law is pushing at an open door.42 With regard to the levels of regulatory failure, it is a mistake to think that everything hinges on whether there is resistance (or consensus) amongst regulatees. Formally, we might identify four key levels (or stages) that characterise the regulatory cycle and that provide check-points for regulatory failure or success. These stages are: •

(stage one) the identification of a recognised or authoritative regulator (particularly where new technologies emerge, or where there are cross-border disputes, it might not always be clear who has authority);43

•

(stage two) the issuing of “guidance” by a recognised regulator;

•

(stage three) the response of regulatees to the guidance issued (whether the guidance is in the nature of a requirement or prohibition, or a permissive facilitation); that is, whether or not regulatees act on, or comply with, the guidance; and

•

(stage four) the response made by regulatory agencies if and when regulatees do not act on or comply with the guidance; that is, whether or not remedial steps are taken (whether by way of enforcement or by making adjustments to the guidance).

So stated, these key stages leave a great deal to be unpacked. In particular, it is implicit in the second stage that the guidance issued (whatever its particular content) is at least clear and intelligible, that it coheres with other guidance that has been issued, and that it is properly communicated to regulatees; and, at the third stage, it is implicit that effective regulation presupposes an accurate monitoring of compliance. The simple point, though, is that regulatory action (or inaction) takes place at more than one level and, although the attitude and response of regulatees (at stage 3) is very important, it is not the whole story. 40

Ibid., at 15.

41

Stuart Biegel, Beyond Our Control? (Cambridge, Mass.: MIT Press, 2003).

42

There is also, of course, the important question of whether any fresh regulatory intervention is required. Where new technologies emerge, regulators will need to decide whether fresh bespoke regimes are required or whether existing laws have sufficient flexibility to be responsive. For a case in point, see Tanya Aplin, Copyright Law in the Digital Society: The Challenges of Multimedia (Oxford: Hart, 2005).

43

Compare, for example, the early experience with domain name disputes and a range of other cross-border Internet issues (e.g., LICRA v Yahoo! Inc., where it was claimed that internet auction sites, hosted by a US-based ISP, violated French law by offering Nazi memorabilia for sale).

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V Focal questions for researchers One of the striking things about a great deal of legal research is that it does not operate in a way that fits the standard research council model. Legal researchers rarely start with a sharply specified research question; they do not have some hypothesis to be tested; they do not have a clearly articulated methodology; and they do not have a clear sense of where their inquiry might lead. Much of the time they are reacting to a rapidly changing legal landscape and trying to say something helpful or interesting about what is going on; but they will often be able to put their research into some recognisable mould only when they have pretty much completed their inquiry. Paradoxically, one suspects that some of the most interesting legal research is produced by individuals or teams who are operating in intuitive and exploratory ways. Such work rarely gets external funding support because, understandably, the research council culture is set against bids that say, in effect, “Trust us, we will come up with something interesting on this topic.” If I were trying to direct legal researchers of this ilk, I would suggest that they should focus on two fundamental questionsone question concerning effectiveness and the other concerning legitimacyand that they should pursue these questions in the context of global governance. The first question, as I have said, concerns regulatory effectiveness. If the regulatory enterprise aspires to being an instrumentally rational enterprise, as it surely does, legal researchers should contribute to our understanding of what works and why. It is astounding that we understand so little about these matters and I cannot imagine that the scientific community would have a great deal of sympathy with the plea that, in the domain of law, we are dealing with matters of art rather than science. The second question concerns regulatory legitimacy. Here, the question is whether and how particular regulatory positions can be defended as legitimate. What are the criteria of regulatory legitimacy? In regulatory arenas where consensus is difficult to achieve and where moral foundationalism is viewed with suspicion and disbelief, how are regulators to defend the choices that they make?44 Finally, these questions of effectiveness and legitimacy (which are not necessarily entirely discrete questions)45 should be viewed in a global context. Nowadays, legal regimes overlap and interact at local, regional, and international level. There is plenty of work ahead for black-letter lawyers as they try to put the various legal materials into some kind of order; but the globalisation of law makes it all the more important for legal researchers to focus on the larger questions of regulatory effectiveness and regulatory legitimacy.46 If the Rule of Law is a social virtue, then we need to understand why this is soand, I suggest, it is an even more pressing matter for legal

44

For some possible responses to this question, see Roger Brownsword, “Regulating Human Genetics: New Dilemmas for a New Millennium” (2004) 12 Medical Law Review 14.

45

Compare, Karen Yeung, Securing Compliance: A Principled Approach (Oxford: Hart, 2004).

46

In “What the World Needs Now: Techno-Regulation, Human Rights and Human Dignity” in Roger Brownsword (ed) Human Rights (Vol IV of Global Governance and the Quest for Justice) (Oxford: Hart, 2004) 203, I begin to set an agenda for legal researchers.

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researchers in a century that is likely to see an acceleration in scientific and technological progress. © Roger Brownsword 2006

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