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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.

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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 anothernatural and human, explanatory and prescriptive,covering and coerciveare 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 theother. Yet, these worlds, each highly specialised, relatively closed, and inaccessible tooutsiders, are very different. Even if lawyers have a general sense of what it is thatscientific researchers seek to achieve, they have little chance of understanding heavy-duty science. As for the scientists, they probably find it difficult to imagine what kindof questions might attract the attention of legal researchers, let alone have any interestin heavy-duty law (whatever that might be). Lawyers, the scientific community mightreflect, seem to have an unhealthy zeal for regulation. Occasionally, they can be ofsome practical assistance (for example, in advising on a patent application or somesuch matter). But, what on earth occupies legal researchers? What precisely doacademic lawyers do?

If this question had been posed thirty or forty years ago, it would have been arelatively 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 withlegal practitioners, most of their research and writing at that time was directed at apractitioner readership. The stuff of such researchso-called “black-letter” legalscholarshipwas, and continues to be, the exposition and analysis of legislation andcase-law, the integration of statutory provisions and judicial pronouncements into acoherent and workable body of doctrine.

However, over the last 30-40 years, academic lawyers have increasingly researched ina way that is less focused on the day-to-day needs of legal practitionersor, at anyrate, on the practical needs of barristers and solicitors. Academic lawyers havebecome more fully integrated into the university community, developing lines ofinquiryphilosophical, sociological, economic, historical, and so onthat focus onthe practice of law (in a broad sense) but without treating their writing as primarily aservice for barristers and solicitors who need to check out and advise on the legalposition. To be sure, academic lawyers continue to produce works that are designedfor practitioner reference, but legal research nowadays has a much broader compass.

In her recent ethnography of the modern legal academy, Fiona Cownie observes thistransition, remarking on the relative reluctance of her academic lawyer intervieweesto identify themselves with a “black-letter” approach to the subjectindeed, half therespondents describe themselves as adopting a socio-legal or critical legal approach,with feminist approaches also being routinely used.1 The interests of the legalacademy 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 withsome examples of doctrinal analysis, before considering some approaches to criticalevaluation (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 losesight of the wood for the trees, I will suggest that the two focal questions forprogressive legal research concern (i) regulatory effectiveness and (ii) regulatorylegitimacy; and that these questions must be placed in a context of local, regional, andinternational governance.

To avoid any misunderstanding, I should say that, although this introduction is alightly revised version of a paper prepared for a Wellcome summer school onneuroethics,2 it is not specifically tailored to the lines of inquiry that might be pursuedby researchers who pause to wonder how developments in the new brain sciencesmight be of relevance to law. I mention this in passing a couple of times, but that isall. So far as the community of legal researchers is concerned, some inquiries will beprompted reactively as scientific developments impact (in a happenstance way) onparticular areas of lawin the way, for example, that modern genetics first impactedon questions of patentability in intellectual property law3 or modern information andcommunication technologies raised e-commerce issues to be dealt with by contractlawyers.4 Other inquiries will be of a more anticipatory nature as lawyers reflect, forinstance, on the way in which new scientific understandings might destabilise thepredicates of legal responsibility, or the way in which interventions and applicationsthat are discernible on the scientific horizon might invite protective legal responses asthey 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, tothe Constitution (where legal systems have one), to legislation (statutes, statutoryinstruments, and so on) and to the leading case decisions (the precedents).Distinctively, there is a reluctance to move far beyond these mainstream materials (forexample, 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 thevast 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 burgeoningproduction of legislation at Westminster and in Brussels. Like the Forth Bridge, thedoctrinal body is in constant need of attention; the work of a black-letter lawyer isnever 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, seeDeryck Beyleveld and Roger Brownsword, Mice, Morality, and Patents (London: CommonLaw Institute of Intellectual Property, 1993).

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

5 Compare (in the case of human genetics), Roger Brownsword, W.R. Cornish, and MargaretLlewelyn (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 UniversityPress, 2004).

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If the constant stream of legislation and judicial decisions sets an ongoing agenda fordoctrinal lawyers, it is nonetheless the case that, relatively speaking, law operates inthe 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 outstripscovering 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 humanembryo 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 anegg); and that IVF clinics would be assisting women who could not have childrenrather than devising procedures that might assist women to have children forparticular third-party therapeutic purposes. Moreover, the use of human embryos forstem cell research was not explicitly countenanced in the list of approved researchpurposes enumerated in the Act.

We can speak briefly to each of these three assumptions and the interpretive questionsto which they have given rise before presenting an extended illustration of legalcommentary 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 thispurpose, 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 ahuman 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 fellbeyond the scope of the Act); but the Court of Appeal and the House of Lords, takinga 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 wasthat enucleated human eggs would be used as the hosts for therapeutic cloningpurposes. However, what would be the legal position if non-human animal eggs wereto 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 nicepoint.

(ii) May the Authority license PGD for tissue-matching?

According to section 11(1) of the Act, the regulatory Authority may grant three kindsof licence as follows:

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“(a) licences under paragraph 1 of Schedule 2 to this Act authorising activitiesin the course of providing treatment services, (b) licences under that Schedule authorising the storage of gametes andembryos, and (c) licences under paragraph 3 of that Schedule authorising activities for thepurposes of a project of research.”

Schedule 2, paragraph 1, then goes on to provide that a licence (relating to section11(1)(a) may authorise any of the following in the course of providing treatmentservices, 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 beplaced in a woman or to determine whether embryos are suitable for thatpurpose, (e) placing any embryo in a woman, (f) mixing sperm with the egg of a hamster, or other animal specified indirections, for the purpose of testing the fertility or normality of the sperm, butonly 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 accordancewith, regulations.”

In Comment on Reproductive Ethics (Quintavalle), the question was whether thelicence issued to enable the Hashmi family to screen their embryos with a view toimplanting a would-be saviour sibling was within the powers of the regulatoryAuthority. In particular, the issue was whether such a procedure fell within themeaning 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 notbeen given such a licensing power; but this decision was reversed by both the Courtof Appeal and the House of Lords. In this light, the black-letter commentators willnote that clause (d) in Schedule 2, paragraph 1 was given a broad interpretation, goingbeyond the general purpose of assisting women (who otherwise would not be able tohave children) to have children. However, as we shall see shortly, there is a lot morethat might, and should, be said about this.

(iii) May the Authority license the use of human embryos for stem cell researchpurposes?

Controversially, the 1990 Act permits licences to be granted under which humanembryos (typically supernumerary embryos) may be used for research. However, alicence may only be issued where the research is judged to be necessary or desirablein 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 chromosomeabnormalities in embryos before implantation.

Following a review of inter alia the scope of these purposes, the Government decidedthat stem cell research was not covered. To extend the purposes so that humanembryonic stem cell research would be covered, the Human Fertilisation andEmbryology (Research Purposes) Regulations 2001 were taken through Parliament.These Regulations did not explicitly authorise stem cell research; instead, they madeuse 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 forserious disease.

The drafting of these Regulations is hardly watertight. In particular, it is not altogetherclear how very basic researchfor instance, research directed at extracting andpurifying human embryonic stem cellsmight 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 theCourt of Appeal and the House of Lords in both Pro-Life Alliance and Comment onReproductive Ethics (Quintavalle), a “technical” challenge (based on a literal readingof the Regulations) seems unlikely to succeed.

(d) An example of legal writing

The developments sketched above invite legal commentary of various kinds. A black-letter commentary would note the problems with the 1990 provisions and describehow they have been covered, whether by judicial interpretation or by legislativeamendment. In the case of the problem arising from the association of cloning withembryo manipulation, the Government responded by enacting a bespoke criminalprohibition against human reproductive cloning in the Human Reproductive CloningAct 2001. However, as I have already hinted, there is so much going on in and aroundthese developments that one might expect something more than a bare black-letterexposition of the current legal position.

Immediately below, there is an extract from a much longer paper on saviour siblingsand sex selection, in this part of which I gather together a few reflections on theHouse 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 withComment 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 HumanFertilisation and Embryology Authority granted a licence that would permit both PGD[pre-implantation genetic diagnosis] and PTT [pre-implantation tissue typing] inrelation to Mr and Mrs Hashmis’ embryos. The purpose of such dual screening was toidentify an embryo that would be suitable for implantation, being free of the betathalassaemia gene that runs in the family as well as being a tissue match with youngZain Hashmi who suffers from the disease. All being well, Mrs Hashmi would carryone 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 Commenton Reproductive Ethics challenging the power of the Authority to grant such alicence.

At first instance, Maurice Kay J ruled that the Authority had acted beyond itslicensing 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 legalposition thus clarified, the way is clear for the Hashmis to continue with their attemptsto create a saviour sibling for Zain; and, as we shall see, the way is also clear for theAuthority to license PGD and PTT for a much broader range of purposes (includingsimple 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 permissivelicensing decisions that have already been made or that might be made by theAuthority. For, the House is emphatic that the question to be determined in the appealis not whether the Law Lords favour a conservative or a liberal approach to suchquestions as sex selection and saviour siblings but whether the allocation ofresponsibility set up by the 1990 legislation envisaged that the Authority should beempowered 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 designerchildren, 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 thechallengers’ claim clearly in focus. It is put very crisply by Lord Brown in thefollowing terms:

[T]he appellant’s argument [is] that PGD screening is one thing, and properlylicensable under the 1990 Act, tissue typing a completely different conceptand impermissible. It is one thing to enable a woman to conceive and bear achild which will itself be free of genetic abnormality; quite another to bear a

Review 568 and “Reproductive Opportunities and Regulatory Challenges” (2004) 67 ModernLaw Review 304.

7 [2005] UKHL 28.

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

9 [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 canread into the statutory purpose…, that of “assisting women to carry children”,the notion of healthy childrenonly a genetically healthy embryo being“suitable”….To read into [that statutory purpose], however, the notion that thechild will be a suitable future donor for the health of another would be tostretch the statutory language too far.10

Notwithstanding such clarity of focus in relation to both the general question and thechallengers’ contention, it is arguable that the House gets things badly out of focuswhen it seeks to interpret the said statutory language.

To cut the interpretive story short, the principal question is what one makes ofSchedule 2, paragraph 1 of the 1990 Act when it provides that, in the course ofproviding treatment services (treatment services being equated, broadly speaking,with medical services that are designed to assist women to carry children),11 theAuthority may license “(d) practices designed to secure that embryos are in a suitablecondition to be placed in a woman or to determine whether embryos are suitable forthat purpose.” This opaque drafting invites the following two questions:

(i) in what sense might reproductive service providers be checking to ensure that anembryo is “in a suitable condition” for implantation; and

(ii) in what sense might reproductive service providers be checking to determinewhether 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 tothink of activities that fit the statutory description for example, checking thecondition of an embryo that, having been frozen and stored, is now unfrozen with aview 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 theembryo, it seems that the check here is, as it were, for fitness for purpose rather thanas to basic implantable quality. But, this begs the fundamental question: relative towhich or whose purposes is an embryo to be judged fitor, to which or whosepurpose does the phrase “that purpose” refer?

At first instance, Maurice Kay J read the relevant provisions as limiting the licensableactivities to the overarching statutory purpose of assisting women to have children.Whatever particular activities are licensed they must occur in the course of providingtreatment serviceswhich is to say, they must be related to assisting women to havechildren. However, in the Court of Appeal, Lord Phillips MR devoted a great deal ofhis judgment to defending the proposition that the governing purpose was not simplyassisting women to have children but assisting women to have healthy children (thatis, children free of serious and detectable genetic disorders). By the time that theappeal reached the House, it was conceded by the challengers that the broader readingdefended 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.

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the Court of Appeal and confirmed by the House of Lords was far broader than thatand quite differently focused, taking the particular reproductive purposes of theparticular client woman as the governing reference point.12 On this view, the range oflicensable activities covers checking the suitability of the embryo relative to theparticular purposes of the particular woman in question: in other words, “suitable forthat 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) isto make and to reiterate the point that the word “suitable” is an adjective that iscontext-sensitive, that it “is an empty vessel which is filled with meaning by contextand background.”13 So, for instance, as Lord Scott apparently put it in argument, “asuitable hat for Royal Ascot is different from a suitable hat for the Banbury cattlemarket.”14 No doubt, this is the case. However, it is not the word “suitable” that is thekey to cracking the legislative code; and to keep drawing attention to it is akin to anexercise in misdirection. Rather, the key is the phrase “that purpose”. If “thatpurpose” translates as “whatever reproductive purpose the particular womanspecifies” then suitability is indeed an empty vessel waiting to be filled by theparticular context and backgroundnamely, the particular context and backgroundsupplied 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 ratherdifferent criteria of suitability (both in relation to their hats and their offspring) fromthe 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 healthychildren), the context and background for suitability is already set; and for the womenof Ascot, Banbury and Leeds alike, the criteria are the same. It follows that thejudgment handed down by the House passes legal muster only if it convincinglyexplains why “that purpose” is to be read in the former (woman specific) rather thanthe latter (generic) way. Effectively, three arguments are directed against the latterinterpretation.

First, once it is conceded that the Authority may license PGD not only to check theviability 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 betweenthose serious conditions for which PGD may be authorised and those less seriousconditions that would fall beyond the Authority’s licensing remit. Echoing LordHoffmann’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 ensurethat “the woman can carry the child successfully to full term”; (ii) not only in order to ensurethat the woman can carry the child successfully to full term, but also “to eliminate gene andchromosome defects such as may affect that child”; or (iii) in order to provide “informationabout the characteristics of the embryo which is relevant to the woman’s decision whether ornot 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 toproduce not just a viable foetus but a genetically healthy child, there can be nological basis for construing the authority’s power to end at this point. PGDwith a view to producing a healthy child assists a woman to carry a child onlyin the sense that it helps her decide whether the embryo is “suitable” andwhether she will bear the child.16

But, to the contrary, once the concession is made, while there is a margin ofinterpretive doubt about the bounds of health (as in a healthy child), this does notentail that a generic reading of “that purpose” must be abandoned. What thisconcession signifies is simply that the terms of the generic reading must be qualifiedso that the purpose in question is not simply to help women to have children but to doso in a way that avoids implanting an embryo that carries a serious disease. As LordBrown said when rehearsing the gist of the challenge, “[i]t is one thing to enable awoman 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 someoneelse.”17 And, similarly, it is one thing to modify the generic purpose as indicated andquite another to claim that this entails accepting that the governing purpose issupplied by whatever particular purpose the particular woman specifies.

Secondly, if the only purpose for which embryos may be screened is to avoid animplantation that cannot result in the birth of a genetically healthy child, then thiswould seem to mean that it would not be lawful for the Authority to license PGD tocheck an embryo where a mix up of some sort is suspecteda Leeds TeachingHospitals type of case, for example.18 However, there is nothing in this point. If it isagreed that the legislation must allow for PGD to be used to confirm that the embryoto be implanted is that of the couple in question then it is easy enough to modify thegeneric purpose. To read “that purpose” as covering such cases in no way assists theargument that “that purpose” hinges on the particular reproductive purposes of theparticular woman.

Thirdly, Lord Hoffmann argues that the absence from the legislation of any referenceto the use of PGD for sex selection is a telling indicator of the legislative intention toconfer upon the Authority very broad licensing powers. Thus:

[T]here was intense discussion, both in the [Warnock Report] and inParliament, about selection for sex on social grounds. If ever there was a dogwhich did not bark in the night, this was it. It is hard to imagine that the reasonwhy the Act said nothing on the subject was because Parliament thought it wasclearly prohibited by the use of the word “suitable” or because it wanted toleave the question over for later primary legislation. In my opinion the onlyreasonable 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 TeachingHospitals NHS Trust v A [2003] 1 FLR 1091.

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authority to decide. And once one says that the concept of suitability caninclude gender selection on social grounds, it is impossible to say thatselection on the grounds of any other characteristics which the mother mightdesire was positively excluded from the discretion of the authority, howeverunlikely it might be that the authority would actually allow selection on thatground.19

Once the persistent misdirection in this passage has been observed, however, it losesall persuasive force. The controlling phrase is “that purpose” not “suitable”. It isindeed implausible to suppose that Parliament thought that the word “suitable” wouldsignal that PGD for sex selection was prohibited. However, it is entirely plausible tosuppose that Parliament thought that “that purpose”, by referring back to the generalgeneric objectives of the legislation, signalled that PGD for sex selection was offlimits. On this analysis, the regulatory tilt20 is against conferring this discretion on theAuthority; and, if PGD for sex selection is to be licensable, it needs to be explicitly sodeclared by Parliament. As for Lord Hoffmann’s closing remarks, it is again thereading 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 theirdecision, as Lord Hoffmann freely admits, is that the legislative scheme is to beunderstood as conferring on the Authority a much wider licensing remit thanpreviously 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, onecould not stop short of allowing it to be based upon such frivolous reasons as eye orhair colour as well as more sinister eugenic practices.”21 Yet, the House was notdeterred. 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) ofthe Act.

What Quintavalle boils down to therefore is a choice between two institutionaldesigns. One design is that favoured by the House, under which the Authority has abroad discretion to deal with a wide range of controversial reproductive choicessubject to Parliamentary reserve powers; the other design is one that confers upon theAuthority a limited licensing discretion with Parliament having to expressly authoriseeach significant extension of the Authority’s remit. The House does not take us intothe kind of debate that might stake out the relevant considerations that bear on makinga rational choice between these alternatives. However, the effect of their preferencefor the former design almost certainly presages a period during which the Authoritywill be invited to flex its full licensing powers.”

19 Ibid., at para 29.

20 Compare Roger Brownsword, “Regulating Human Genetics: New Dilemmas for a NewMillennium” (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 thatI was writing for a legal readership and that what I wrote was subject to the usualconventions of legal scholarship. I did not pause to reflect on the nature of thisintervention and what precisely I thought that I might be contributing to larger debatesabout law and regulation. However, if asked to be more explicit about the nature ofthe critique in this extract, I suppose that I would say that it has two elements. First, Iam taking an insider perspective and arguing that, relative to the conventions ofstatutory interpretation, I am not persuaded by the Law Lords’ reading of thelegislation. Lawyers argue endlessly about such matters, drawing on considerationspertaining to the particular language used by the drafters as well as the purposes thatare assumed to drive the legislation. Secondly, however, I am making a more radicalsuggestion, namely that the real issue here is about getting the institutional designright. It is far from clear whether we do better leaving the ethical puzzles to theRegulatory authority (inviting the HFEA to address these puzzles on a case-by-casebasis) or whether Parliament should try to write the ethical script for the authority. Infavour of the latter approach, we can point to the accountability of legislators; but, infavour of the former approach, we can point to the relative independence of theauthority and the distance between it and Westminster politics. Whatever we make ofthis design dilemma, my point is that it is a question that is not really addressed at allby the legal argumentation. If the first element of my commentary on Quintavalle isan exercise in black-letterism, the second (where I flag up the issue of institutionaldesign) 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 opposedto 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 outsidein strategies being employed.

The idea of an inside out approach is to work with the values that are alreadyrecognised by a particular legal regime, organise those values in the most defensibleway, and then assess whether some particular doctrine, design, or practice isconsistent with the best interpretation of the legal system’s own values. In a sense, thepurpose of such a critique is to evaluate how faithfully a legal regime is sticking to itsown commitments. However, this is no mechanical exercise; for, in a mature legalsystem, there will be a great many values that are subject to competing interpretationsnot only in their own right but also with regard to their inter-relationship. Forexample, any legal regime that has a high-level commitment to a catalogue of humanrights will give inside-outers a choice of critical pathways just think about thecontested interpretations of a right to privacy and, then, to disputes about therelationship between privacy and free expression or about the relationship betweenfreedom 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 regimealready recognised utility as one of its values. Famously, this resulted in a deterrence-based (and relatively humanitarian) approach to punishment. Kant, on the other hand,whose external viewpoint was rather different, developed a rival retributivist approachto punishment. Outside-in critique again presents a choice of critical pathways goingright back to the selection of a defensible (external) starting point. Whether or notthere 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 isthe product of a political institution that operates on party-political lines, or where themembers of a court (such as the US Supreme Court) are political appointees. If aninside-outer were to suggest that, in such circumstances, the law has a pattern of valuecommitments that are broadly in line with the prevailing political ideology, this wouldbe no more than one might expect. However, in English law, there has been a hugeresistance to any suggestion that our judges (and their decisions) are in any sensepoliticalwitness the outcry when John Griffith published his book The Politics ofthe Judiciary.23

Griffith argued that, even if judges are not quite politicians, they are a relativelyhomogeneous group for whom being conservative with a small “c” is the naturaldefault position. To some extent, this would be welcome. For, it would mean thatjudges would tend towards consistency in their decision-making, enhancingcalculability and treating like cases alike, and that they would act incrementally andcautiously when making changes to the law (after all, judges do not have either themandate or the resources that support the work of the political branch). Moreover, ifthe legal culture tends towards a conservative approach of this kind, then litigants aregiven some insurance against judicial idiosyncrasy. However, Griffith went on tosuggest that, in many areas, there is an underlying pattern in the case-law thatindicates a disposition to favour the interests of certain sectors, notoriously theinterests of established authority (the police and security services) and organisedcapital.

Following Griffith’s lead, inside-outers might try to identify the underlyingideological patterns of different fields of law as a basis for developing a criticalperspective. However, they might try to take such an exercise forward in two ratherdifferent ways. One way, as indicated already, is for the sake of consistency, internalcoherence, and fidelity. The other way, highlighted by the work of the so-calledCritical Legal Studies Movement is to expose and exploit tensions within the patternsof the law. The “crits” tend to operate with a leftish political agenda, a commonstrategy being to identify traces of radical thinking (“dangerous supplements”) in thelaw 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 bydistinguishing between the culture, or ideology, of adjudication itself and theideological pattern of substantive doctrine in a particular field of law.25

As a matter of general adjudicative ideology, the fundamental distinction is between aculture of fidelity to settled law (giving statutes their standard interpretation, applyingthe case-law as usually understood, sticking with the prevailing jurisprudence, and soon) 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 ispractised in a weak form, judges will apply result-oriented thinking to the variousoptions that doctrine presents; where it is practised in a strong form, realism impliesthat the result comes first and then the law is fixed as required. In this light, it isarguable that, whereas the High Court decisions handed down in both the Pro-LifeAlliance and Comment on Reproductive Ethics cases reflect a formalist approach(reading the legislation in the way that its language invites), the Appeal Courtdecisions represent a more result-orientated approach. Of course, once realism isdetected in adjudication, it becomes apparent that there is no mechanical sense inwhich “the law” dictates the results and researchers are led to inquire into theunderlying or background values that might account for the pattern of decisionsactually handed down.

Cutting across these general adjudicative ideologies, we find that particular fields oflaw have their own ideological characteristics. Given that the law is increasinglyproduced 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 justicesystem strikes a balance of some kind between the ideology of crime control and thatof due process; each political party tries to strike the balance in its own way; but nopolitical party is likely to re-write the entire criminal justice code. To map the law inthis area, to understand how the regulatory field is constituted, and to get a fix onparticular decisions, these interacting general and specific ideological currents need tobe 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 aparticular (external) theoretical perspective. As I have said, Kant would view the lawthrough the lens of Kantian moral and political theory, and Bentham would view it asa utilitarian. If one’s external perspective were Marxist, one might relate Griffith’sobservations to a more general theory of economy, law and society in which theinterests of capital and property necessarily would be privileged. Or, again, to take theparticular case of neuroscience, one might develop a particular view of the mind/bodyquestion or of agency and voluntariness that is then deployed to critique theassumptions that underpin a legal finding of responsibility (in both the criminal lawand 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 anynumber of other external critical vantage pointsfor instance, a feminist mightcritique the gendered nature of law (its disposition towards the logic, vocabulary, andinterests of the male members of the community); and, in some places (especially theUS) 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 beconducted, or clinical treatment adopted, without the person’s informed consent. In aseminal study, Ruth Faden and Tom Beauchamp reconstruct the development of thisdoctrinal requirement.27 However, this doctrinal idea is ripe for both inside out andoutside in assessment.

As a matter of inside out evaluation, we would identify the ingredients of informedconsent (the ideas of unforced choice and informed choice) and then review how theyare interpreted as well as how they are applied in different areas of the law. Forexample, in the context of medical practice, is the benchmark for informed consent setby the views of medical practitioners or by the informational needs of a prudentpatient? Even if medical law is internally consistent on this matter, does theinformational requirement mean the same thing in consumer markets and medicalcontexts, or, say, the context of plea-bargaining and settlement in respectively thecriminal and civil justice systems? And, if not, what do we make of it? Can we find acoherent pattern in all this?

Just as we can unpack the law’s own internal perspective on informed consent, wemight conduct a similar exercise in relation to unforced choice. What sort of pressuredoes the law treat as incompatible with an unforced choice being made? How does thelaw deal with the standard philosophical distinction between threats (coercion andduress) and offers (incentives)? What does the law make of relational pressure(consider, for example, the influence of Jehovah’s Witness parents over their childrenor the background pressure in a culture of arranged marriages) and situationalpressurefor 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 dependon the nature of our external vantage point. In the following short extract,28 I sketchthe 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 thefundamental 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 CollegeLaw Journal 223, 227-229.

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“In A Theory of Justice,29 John Rawls famously proclaimed that, in advancing hisrights-driven account of justice, the utilitarians were his principal rivals. Threedecades later, little seems to have changed. Broadly speaking, although the culturalbandwidth allows for a range of views to be broadcast, it is still utilitarian and humanrights thinking that dominate. To this, let me add one major caveat. In the case ofbioethics, 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 specialabout consent or the lack of it. In general, it is easy to see the negatives in relation toconsent collection. Obtaining consent might not always be practicable; where it is, itnevertheless incurs transaction costs; and, on some occasions, it might be downrightdistressful. Waiting for consents to be cleared might involve opportunity costs.Moreover, policies might be frustrated if, instead of saying “yes”, those who are askedto consent say “no”. On the other hand, dealing on the basis of consent might easematters ex ante, it might allay concern and weaken opposition, and it might be aconvenient justificatory response ex post. Thus, there is no golden rule requiring thatthe consent of those upon whom an action or decision impacts should be obtained. Forexample, requiring researchers or doctors to deal on an informed consent basis withresearch 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 preferencesstrongly favour the currency of consent, even if there is no golden rule requiringconsent, 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 forindividual autonomy, entailing recognition of the right of individuals to make theirown choices, to exercise control over their own person, property, and privacy, and tosay “yes” or to say “no”. Taking individuals seriously, taking rights seriously, meanstaking consents and refusals seriously.

Viewed from a human rights perspective, consent by A might signal either a changeof position or the creation of a new relationship. There is a tendency to focus more onthe former than the latter, that is, on consent signalling A’s willingness to modify hisor 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 thethinking underlying the consent provisions in the Bill in a utilitarian way. It says that theGovernment believes that the effect of the consent provisions will be to “prevent a recurrenceof the distress caused by retention of tissue and organs without proper consent”, to “helpimprove public confidence so that people will be more willing to agree to valuable uses oftissue and organs” (such as for research and transplantation purposes), and to “improveprofessional confidence so that properly authorised supplies of tissue for research, educationand transplantation can be maintained and improved” (p 4). Quite probably, this is enlightenedutilitarian 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 sexualintercourse, to open their homes to police searches, or to testify againstthemselves in court, they convert what otherwise would be an invasion of theirperson or their rights into a harmless or justified activity.32

The latter function (the creation of a new relationship), however, should not beignored. Where A signals consent to the creation of a new relationship with B, thismight be by virtue of some simple dynamic (such as the giving of a promise oragreement to an exchange of goods) or it might be by virtue of some more complexinstitutional set (as is the case, for example, if A invokes the law of contract or thelaw of marriage) or regulated scheme (such as one licensing assisted conception orphysician assisted suicide). Where A thus signals consent, then other things beingequal 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 signalsa change of position or agreement to the creation of a new relationship, consentfunctions as a procedural justification (for the benefit of the recipient, B) rather thanas a full substantive justification of the kind that would be appropriate if one werearguing for a particular human right itself.

This leaves the dignitarian alliance, whose fundamental axiom is that human dignitymust not be compromised. It is an “alliance” because there is more than one pathwayto this ethicKantian and communitarian as well as religious. So, for example, if wewere to express the dignitarian perspective in communitarian terms, we would saythat human dignity is a good which must not be compromised by our actions orpractices and that any action or practice that compromises this good is unethicalirrespective of welfare-maximising consequences and regardless of the informedconsent of the participants. For the dignitarians, it is human dignity, not consent, thatcounts; and it is the interests of all members of the community that count, not merelythose of the consenting community.”

Following the analysis in this extract, if our external vantage point is utilitarian, wewill specify the requirements of informed consent in whatever way promises tomaximise utility; if it is human rights, we will set the threshold for both free andinformed consent relatively high (almost all the pressure for more patient informationcomes from this quarter); and, if it is dignitarian, we will believe that it is duty thatsets the standard not consentquite simply, the duty not to compromise humandignity is one that is not to be switched on and off as the duty-bearer elects to consentor to refuse.33

IV Researching the dynamics of law

Much of what I have said about going beyond black-letterism implies a philosophicalapproach 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 ConsensusFails” (2005) 39 New England Law Review 535, and “Making People Better and MakingBetter People: Bioethics and the Regulation of Stem Cell Research” (2005) 1 Journal ofAcademic Legal Studies (on line).

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sociological approach. In one branch of legal research, the sociology of law, big socialtheories are brought to bear on understanding and explaining the way that lawfunctions; and in another, socio-legal studies, the emphasis tends to be on empiricalinquiry 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 (advocatingempirical engagement with legal practice) but it is now accepted that theoretical workwithout any empirical content is hollow and that empirical work without supportingtheory is shallow. Having said this, empirical studies (whether of a quantitative or aqualitative kind) represent only a small part of the totality of legal research and,within the community of legal researchers, it is the criminologists who primarilyconduct such studies.

In what follows, I can speak briefly to two types of inquiry that explore the dynamicsof 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 thelaw-in-the-books (that is, from the image of law that is projected by the law-in-the-books). Since no one thinks that there is anything approaching full compliance withthe law-in-the-booksotherwise, there would be little or no crime committedthismight not seem like much of an insight. However, the major contributions made bygap 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 aredifferent cultures of adjudication. Whereas one might expect judges simply to stateand apply the law, we know that, at any rate in the practice of the higher courts, thereis a good deal of result orientationand, while a legal insider might accept thiswithout batting an eyelid, the outside reception of such a revelation might be ratherdifferent. Similarly, we might study how far various law enforcement agenciesoperate in a way that conforms to the picture implied by the law-in-the-books. Whatgap theory alerts us to is that the de jure position is one thing, the de facto practicesometimes quite another story. Generalising from gap studies, we might hypothesisethat there will be some disjunction between the law-in-the-books and the law-in-action where compliance cuts across the grain of professional culture (e.g., in policingor medicine or even lawyering) or where the costs of compliance are far greater thanthe 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 tomonitor and enforce standards in a particular sector fails to do so effectively becausethe relationship between the regulators and the regulatees is too cosythere arerevolving 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 amuch more complex story regarding regulatory capture and the failure of the US FDAto heed warnings concerning the adverse effects of the Fen-Phen diet drug. Here, it isnot simply that the pharmaceutical companies have the regulatory agency directlyunder control but that there is a web of relationships between the pharmaceuticalcompanies and the agency, the pharmaceutical companies and politicians, and thepoliticians and the agency which combine to generate a gap between the agency’sofficial mission (to protect the public against unsafe drugs) and its de facto culture ofassisting the companies to bring their products to market.

In relation to the under-use of the law, gap theory has uncovered a systematic shortfallwhere individual claimants are expected to activate a remedy. Whether these areconsumers, tenants, employees, accident victims, or the like, they fail to takeadvantage 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 areunaware that they might have some legal redress; or there are concerns about the costsof 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 anindividual, a remedy that will only be activated if it is personally cashed by theindividual, then in many cases it will not be activated (and not because the individualhas decided against activation as a matter of rational choice). Moreover, if theintention 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 classactions on behalf of the larger group. In Mundy’s account the class action lawyers donot escape criticism either; but at least mass tort claims of this kind can deliver majorcompensatory awards that not only correct the injustice but also give the defendantwrongdoers pause.

(ii) Impact studies

My remarks immediately above concerning the impact of class actions as againststandard individualised private law claims leads into a very important field of legalresearch. Typically, legal interventions are designed to achieve some particularpurpose. 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 theparticular 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 tohelp us to understand more about the effect of particular interventions, so that ourcapacity to bring about intended consequences and avoid unintended negativeconsequences is enhanced.

Each particular impact study will highlight certain idiosyncratic aspects of theintervention in question. However, put somewhat crudely, the general lessons of suchstudies are that interventions are unlikely to be effective where there is a lack ofconsensus in support of the law and/or where the costs of compliance are higher thanthe 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 regulatorytouristsfor example, the Whitaker family, who were in much the same position asthe 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 intendedconsequence, it might bring with it various unintended adverse effects. For example,the adoption of so-called strict liability regimes (where there is no requirement toprove “fault”) might operate, as intended, to ease the pathway to compensation forcertain classes of complainants; however, this might also create a liability crisis thatresults 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 limitedresource available and where the intervention requires some of that resource to beexpended in a new direction, it is inevitable that compliance will result in aredistribution of the resource (possibly with negative consequences in the sector fromwhich 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 ofregulatory failure and success.

With regard to the repertoire of regulatory interventions, we need to think about notonly traditional criminal law prohibitions or private law remedies, but also about thecreation of social/peer pressure, the use of pricing or market mechanisms, and thepossibilities for controlling conduct by “design” or “code”. This takes us into therealm of “smart regulation” which advocates mixing and matching availableregulatory strategies (on the basis of what we know about what works).36 Ifrecognising the limits of single instrument approaches is the first lesson for smartregulators, then the next lesson is to be aware of the range of regulatory instrumentsand the importance of putting in place an optimal mix. Hence, writing in relation toenvironmental 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 successfullyaddress all…problems in all contexts”.38 Instead, Gunningham and Graboskyadvocate a regulatory strategy that seeks “to harness the strengths of individualmechanisms while compensating for their weaknesses by the use of additional andcomplementary instruments”.39 They continue: “Moreover, such a mix of instrumentswill work more effectively if a broader range of participants are capable ofimplementing 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 isWest” (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 arange of other interested actors (third parties), both commercial and non-commercial.”40 In a similar vein, Stuart Biegel, writing about the regulation of theInternet, 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 thatit 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 everythinghinges on whether there is resistance (or consensus) amongst regulatees. Formally, wemight identify four key levels (or stages) that characterise the regulatory cycle andthat 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-borderdisputes, 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 theguidance is in the nature of a requirement or prohibition, or a permissivefacilitation); that is, whether or not regulatees act on, or comply with, theguidance; and

• (stage four) the response made by regulatory agencies if and when regulateesdo not act on or comply with the guidance; that is, whether or not remedialsteps are taken (whether by way of enforcement or by making adjustments tothe guidance).

So stated, these key stages leave a great deal to be unpacked. In particular, it isimplicit 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 beenissued, and that it is properly communicated to regulatees; and, at the third stage, it isimplicit that effective regulation presupposes an accurate monitoring of compliance.The simple point, though, is that regulatory action (or inaction) takes place at morethan one level and, although the attitude and response of regulatees (at stage 3) is veryimportant, 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 isrequired. Where new technologies emerge, regulators will need to decide whether freshbespoke regimes are required or whether existing laws have sufficient flexibility to beresponsive. For a case in point, see Tanya Aplin, Copyright Law in the Digital Society: TheChallenges of Multimedia (Oxford: Hart, 2005).

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

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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 notoperate in a way that fits the standard research council model. Legal researchers rarelystart with a sharply specified research question; they do not have some hypothesis tobe tested; they do not have a clearly articulated methodology; and they do not have aclear sense of where their inquiry might lead. Much of the time they are reacting to arapidly changing legal landscape and trying to say something helpful or interestingabout what is going on; but they will often be able to put their research into somerecognisable mould only when they have pretty much completed their inquiry.

Paradoxically, one suspects that some of the most interesting legal research isproduced by individuals or teams who are operating in intuitive and exploratory ways.Such work rarely gets external funding support because, understandably, the researchcouncil culture is set against bids that say, in effect, “Trust us, we will come up withsomething interesting on this topic.” If I were trying to direct legal researchers of thisilk, I would suggest that they should focus on two fundamental questionsonequestion concerning effectiveness and the other concerning legitimacyand that theyshould pursue these questions in the context of global governance.

The first question, as I have said, concerns regulatory effectiveness. If the regulatoryenterprise aspires to being an instrumentally rational enterprise, as it surely does, legalresearchers should contribute to our understanding of what works and why. It isastounding that we understand so little about these matters and I cannot imagine thatthe scientific community would have a great deal of sympathy with the plea that, inthe domain of law, we are dealing with matters of art rather than science.

The second question concerns regulatory legitimacy. Here, the question is whetherand how particular regulatory positions can be defended as legitimate. What are thecriteria of regulatory legitimacy? In regulatory arenas where consensus is difficult toachieve and where moral foundationalism is viewed with suspicion and disbelief, howare regulators to defend the choices that they make?44

Finally, these questions of effectiveness and legitimacy (which are not necessarilyentirely discrete questions)45 should be viewed in a global context. Nowadays, legalregimes overlap and interact at local, regional, and international level. There is plentyof work ahead for black-letter lawyers as they try to put the various legal materialsinto some kind of order; but the globalisation of law makes it all the more importantfor legal researchers to focus on the larger questions of regulatory effectiveness andregulatory legitimacy.46 If the Rule of Law is a social virtue, then we need tounderstand why this is soand, 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” inRoger Brownsword (ed) Human Rights (Vol IV of Global Governance and the Quest forJustice) (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 andtechnological progress.

© Roger Brownsword 2006