1 This is a slightly modified text of the Clifford Chance Lecture delivered in the University of Leiden under the auspices of the Institute of Anglo-American Law on 3 December, 1993. I owe a debt of gratitude not only to Clifford Chance but also to Professor Basil Markesinis whose vision created that unique Institute and whose energy and optimism now sustain its important work.

2 Gaius Institutes 1.2 as translated in W. M. Gordon and O. F. Robinson The Institutes of Gaius (1988) pp 20–21.

3 A. W. B. Simpson ‘Innovation in Nineteenth Century Contract Law’ (1975) 91 LQR 247, esp 255 et seq.

4 (1814) 3 Dow 1, 15. Serjeant Williams (1757-1810) is best known for his notes on Saunders' Reports (Williams' Saunders).

5 A. G. Guest (General Editor), Benjamin's Sale of Goods (4th edn, 1993). This book is the successor of Judah Benjamin Treatise on the Law of Sale of Personal Property (London, 1868) which had eight editions between 1868 and 1950.

6 F. M. B. Reynolds Bowstead on Agency (15th edn. 1985).

7 A. G. Guest (General Editor), Chitty on Contracts (26th edn, 1985).

8 G. H. Treitel The Law of Contracts (8th edn, 1991).

9 M. P. Furmston Cheshire and Fifoot und Furmston's Law of Contract (12th edn, 1991).

10 A. G. Guest Anson's Law of Contract (26th edn, 1984).

11 P. S. Atiyah The Safe of Goods (8th edn, 1990).

12 G. H. Treitel Remedies for Breach of Contract (1988).

13 As, for example, H. G. Collins The Law of Contract (2nd edn, 1993).

14 Glanville Williams Criminal Law, The General Part (2nd edn, 1961); A Textbook of Criminal Law (2nd edn, 1983).

15 J. C. Smith and B. Hogan, Criminal Law (7th edn, 1992); J. C. Smith The Law of Theft (6th edn, 1989).

16 H. W. R. Wade, Administrative Law (6th edn, 1988).

17 S. A. de Smith Judicial Review of Administrative Action (4th edn, 1980).

18 B. L. Jones Garner's Administrative Law (7th edn, 1989).

19 P. Craig Administrative Law (2nd edn, 1989).

20 D. Galligan Discretionary Powers: A Legal Study of Official Discretion (revised edn, 1990).

21 A. V. Dicey The Conflict of Laws (1990).

22 Dr. Moms edited Dicey, see previous note, from the 6th edition (1949) to the 10th (1980).

23 G. C. Cheshire and P M North Private International Law (12th edn, 1992). Dr North has been editor since the 8th edition (1970). in conjunction with Professor J J Fawcett since the 11th edition (1987).

24 F. A. Mann The Legal Aspect of Money (5th edn, 1992).

25 Savigny was called to Berlin in 1810 and held his chair to 1842. Lord Eldon was Lord Chancellor from 1801-1806 and 1807-1827.

26 R. Van Caenegem Judges, Legislators and Professors (1987) p 65.

27 Ibid.

28 T. Wood An Institute of the Laws of England, or the Laws of England in their Natural Order (1720) p ii.

29 John Austin, 1790-1859, was the first professor of jurisprudence at University College London, 1826-1832, far ahead of his time in his pursuit of intellectual order in the law. Sir Henry Maine, 1822-1888, held chairs in both Oxford and Cambridge. His interests lay chiefly in historical jurisprudence and in explaining the development of law from its primitive beginnings. F. W. Maitland, 1850-1906, Downing Professor of Law at Cambridge. His prodigious output created the discipline of legal history as we know it. For the contributions earlier than Dicey, Pollock and Anson, see A. W. B. Simpson ‘The Rise and Fall of the Legal Treatise’ (1981) 48 U of Chicago LR 632, esp 651-474. Simpson notes that Plucknett took the treatise tradition as starting from Joseph Story's first treatise, on bailment, in 1832 (T. Plucknett Early English Legal Literature (1958) 19).

30 Sir William Anson's Principles of the Law of Contract was first published in 1879, his Law and Custom of the Constitution in 1886, with later parts in 1892 and 1908. He was Warden of All Souls from 1881 to 1898. thereafter sitting in Parliament.

31 A. V. Dicey ‘Can English Law be Taught at the Universities?’ (1883).

32 Ibid, p 8.

33 Ibid, p 11.

34 Ibid, p 15.

35 Ibid, p 13.

36 Ibid, pp 12–13.

37 Ibid, pp 12. 23–24.

38 Sir Frederick Pollock A First Book of Jurisprudence (1896) p 319.

39 Ibid, n 2.

40 (1888) 37 Ch D 51, 54.

41 Sir Edward Fry A Treatise on the Specific Performance of Contracts (2nd edn, 1881), preface.

42 Greenlands v Wilmshurst (1913) 29 TLR 685, 687.

43 ‘It was the first of its kind in England. It has remained in the forefront ever since. It has been followed all over the world by hundreds of other law reviews, Lord Denning MR, few lines later, ‘They are baskets full of the fruits of research. Some of the fruit is good and tit to pick. Some of it is full of maggots. It is only fit for the humus heap'.

44 Soon exceeded: Arthur Goodhart was editor of the LQR for fifty years, from 1925 to 1975.

45 (1937) 53 LQR 151.

46 Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343.

47 (1937) 53 LQR 151–2.

48 In 1920 Dicey's teaching on the royal prerogative was accepted in A-G v De Keyser's Royal Hotel [1920] AC 508, esp 526, where however Lord Dunedin withholds his name, preferring ‘a learned constitutional writer’. In the Court of Appeal, arguendo, the name had been mentioned: [1919] 2 Ch 197. 205. In 1934 Greer and Maugham, LJJ, though they had the excuse that they were considering a point of American law (foreign and out therefore a matter of fact), had relied on A. L. Goodhart, ‘Rescue and Voluntary Assumption of Risk,’ (1933-5) 5 CLJ 192: Huynes v Harwood [1935] 1 KB 146, 156, 162. Later, in Re Cleadon Trust [1939] Scott, LJ, discussing the nature of quasi-contract referred to the works of Winfield, Jackson and Allen. In the same volume, in Shenton v Tyler [1939] ch 620, 633–641, Sir Wilfrid Greene, MR, reviewed the doctrine of some ten works on evidence. In Re Ellenborough Park [1956] Ch 131, 163 et seq, a famous case raising the question whether a ius spatiandi could exist as an easement, the Court of Appeal, through Lord Evershed, MR, founded its judgment on G C Cheshire's exposition of the nature of an easement in Modern Real Property (7th edn, 1954).

49 (1947) 63 LQR 516.

50 Sir Robert Megarry seemed to express both the beliefs and practice of most judges when he vigorously opposed the notion that the old rule had been ‘exploded’: R E Megarry Miscellany at Law 1955) pp 325 ff. Cf by the same author Lawyer and Litigant in England (1962) p 119 ff. Despite being President of the Society of Public Teachers of Law in 1965-66, he continued to take a hard line against academic writing. Such authors were ‘exposed to the peril of yielding to preconceptions’ and obliged to form ideas ‘without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case. Argued law is tough law’: Cordell v Second Clarfield Properties [1969] 2 Ch D 9, 16. This outburst later led Professor Hein Kötz to observe with some justification that judges shared the peril of yielding to preconceptions and often could not see the woods of principle for the trees of precedent. Perhaps, he concluded, the best way to develop the law would be by a ‘joint effort of judges and academics acting in partnership’ (cf Lord Goff, immediately below): H. Kötz, ‘Scholarship and the Courts: a Comparative Survey,’ in D S Clark (ed) Essays in Honour of J. H. Merryman (Berlin, 1990) 183, 190.

51 The British Academy's Maccabaean Lecture in Jurisprudence is given at the Academy once every two years. It was endowed in 1956 by the Maccabaeans to mark the tercentenary of the Jewish resettlement in England, permitted by Oliver Cromwell in 1656.

52 Robert, Goff (Lord Goff of Chie veley) ‘In Search of Principle’ (1983) 69 Google Scholar Proceedings of the British Academy 169.

53 See above, text to n 37.

54 Op cit, n 52 above, 171.

55 Ibid, 186. At a recent seminar in Edinburgh (Parliament House, 23 October 1993) Lord Prosser made the same point, from a rather different perspective. Taxed with judicial failure to sort out problems in the Scots law of unjust enrichment, he turned the tables on the critics by observing that the judges could not discharge their interpretative function effectively if supplies of academic literature were not forthcoming.

56 Text from n 5 above.

57 Report of the Committee on Legal Education (Cmnd 4595, 1971).

58 Ibid, p 44.

59 Ibid, p 45.

60 Ibid, p 50.

61 Ibid, p 49.

62 [1993] AC 163.

63 Ibid, 163–4.

64 [1993] AC 789, 826 (where Hoffman, L.J., also acknowledged help received from the philosopher, Bernard Williams), 863, 866, 868 (Lord Goff of Chieveley), 822 (Lord Browne-Wilkinson), 895 (Lord Mustill). Cf also R v Shivpuri [1986] 2 All ER 334, where the law relating to impossible attempts was revised in the light of academic analysis and criticism; Rowling v Takaro [1988] AC 473, where note is taken of Craig's work on the liability of public authorities.

65 White v Jones [1993) 3 All ER 481. Cf, in the same volume, Re G (a minor) [1993] 3 All ER 657, in which Butler-Sloss, LJ, cites and relies, in relation to the Hague Convention on the Civil Aspects of International Child Abduction, 1980, on work by J Eekelaar and by Professor A E Anton.

66 [1980] Ch 297.

67 Ibid, at 502f, quoting from P. Cane, ‘Negligent Solicitors and Disappointed Beneficiaries,’ (1980) 96 LQR 184. The author is Law Fellow of Corpus Christi College, Oxford, and has written inter alia, a major treatise on economic torts: Tort Law and Economic Interests (Oxford, 1991).

68 Ibid, at 500.

69 For example, the preface to the 8th edition of Treitel on Contract (1991) observes with perfect restraint, at page v, that its pages take account of important changes entailed, in relation to consideration, by William v Roffey Bros [1991] 1 OB 1 and, in relation to contributory negligence, by Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852. What it does not say is that, though there is no citation of the source, counsel in those cases appear to have derived their arguments from the pages of the 7th edition, 74-5 and 759-761. Again, although Woolwich Equitable Building Society v IRC [1993] AC 70 contains, in the House of Lords, Lord Goff s generous acknowledgment of the role of academic literature, the majority judgments in the Court of Appeal, reported with the decision of the House of Lords, pioneering as they are, are typically English in making no mention at all of the copious literature on the point, even though the arguments are clearly derived from it. A rather different complaint might be made about the recent important appeal to the Privy Council from New Zealand, A-G for Hong Kong v Reid [1994] 1 All ER 1 (JCPC). The issue was whether the victim of bribery acquires a property in the bribe received by his agent and in assets bought with it. Lister v Stubbs (1890) 45 Ch D 1, in rather careful judgments of a strong court, said no. The JCPC treated Lister as wrong. It cited an important article by Sir Peter Millett, writing extrajudicially: ‘Bribes and Secret Commissions’ [1993] Restitution Law Review 7. It mentioned none of the other juristic support for that position and, more worryingly, apparently took no account of Professor Goode's support for Lister (R. M. Goode ‘Ownership and Obligation in Commercial Transactions’ (1987) 103 LQR 433,44145; ‘The Recovery of a Director's Improper Gains,’ in E. McKendrick (ed), Commercial Aspects of Trusts and Fiduciary Obligations (1992) pp 137, 14ff.) nor of the criminal consequences of overruling it: Powell v MacRae [1977] Crim LR 571; Tarling v Singapore Government (1979) 70 Cr App Rep 77 (HL); Attorney-General's Reference (No 1 of 1985) [1986] QB 491 (CA); J. C. Smith The Law of Theft (6th edn, 1989) 434; cf (1956) 19 MLR 39; see also A. T. H. Smith ‘Constructive Trusts in the Law of Theft’ [1977] Crim Law Rev 395. Nor was any attempt made to explain whether, and if so why, the profits of bribery were treated differently from the gains from other acquisitive wrongdoing, such as libel, passing off, and so on: Birks, ‘Personal Restitution in Equity’ [1988] LMCLQ 128, cf [1993] LMCLQ 30. In the law school these questions have been the stuff of the Lister v Stubbs debate for a decade and more. There cannot but be some regret that, when the right facts finally arrived in court, they were not addressed.

70 For an extreme example, see P. Birks (ed) Examining the Law Syllabus: Beyond the Core (1993) 3; cf (1993) 6 SPTL Reporter 3; John Mortimer, QC Law Student (October, 1993) 9.

71 The new proposals, superficially similar to the present regime, are in fact fundamentally different, in that the present regime stipulates core subjects within a law degree, what is necessary not what is sufficient. The present scheme is published at [1991] 3 SPTL Reporter 24; cf [1993] 7 SPTL Reporter pp 14–15.

72 Law Society's Academic Consultative Committee, Law Society's Hall, 113 Chancery Lane, 16 June 1992.

73 Mixed degrees including law have never hitherto involved large numbers. Modularization, which implies the possibility of many more ‘pick and mix’ degrees is likely to increase the numbers.

74 De Oratore, 1.27.169.

75 Ibid, 1.138.173–4.

76 Ibid, 1.38.175.

77 D 1.1 pr-1 (Ulpian, libro prirno institutionum).

78 Airedale NHS Trust v Bland [1993] 2 WLR 316.

79 Children Act, 1989, s 1 and ss 8–12. Cf Re R (a minor) (Residence: Religion); Re W (a minor) (Residence Order) [1993] 2 FLR 625.

80 Re F (Mental Patient: Sterilization) [1990] 2 AC 1.

81 Reg v R (Rape: Marital Exception) [1992] 1 AC 599.

82 Above, text to n 33.

83 Markesinis, B. S. and Deakin, S., ‘The Random Element in their Lordships' Infallible Judgement,’ (1992) 55 MLR 619Google Scholar, esp 620, 645. Cf also Markesinis, B. S., ‘Judge, Jurist and the Study and Use of Foreign Law,’ (1993) 109 LQR 622Google Scholar.

84 This curious blindness is discussed, too charitably perhaps, by Raoul van Caenegem, ‘Historical and Modem Confrontations between the Continental and Comparative Law,’ in B de Witte and C Forder (ed), The Common Law of Europe and the Future of Legal Education (Deventer, 1992) pp 621, 621–624.

85 H. Kötz, ‘The Role of the Judge in the Court-Room,’ (1987) Tydskrif v S-A Reg 35, 41–2.

86 W. Blackstone, ‘On the Study of the Law,’ 1 Commentaries on the Laws of England 32.

87 Ibid

88 Ibid, p 27

89 Lord Denning, cit n 43 above.