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Doctrinal Legal Research

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An Introduction to Legal Research
Roger Brownsword*
*
Professor of Law, King’s College London, and Honorary Professor in Law at the University
of Sheffield.
1
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
2
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).
3
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.
2
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).
4
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:
5
“(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,
6
(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
7
“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).
9
[2003] EWCA Civ 667 (Lord Phillips MR, Schiemann and Mance LJJ).
8
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.
11
Section 2(1) of the HFE Act.
9
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.
10
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.
11
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.
12
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.
13
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).
14
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).
15
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.
16
“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.
17
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).
18
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
19
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.
20
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.
21
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).
22
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.
23
researchers in a century that is likely to see an acceleration in scientific and
technological progress.
© Roger Brownsword 2006
24
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