Lord Rodger of Earlsferry, Justice of the Supreme Court of the United Kingdom, and Visitor of St Hugh’s College
Lord Rodger of Earlsferry, Justice of the Supreme Court of the United Kingdom, and Visitor of St Hugh’s College, died after a short illness on 26 June, 2011. He was 66. He was one of the greatest judges and jurists of our time, a stalwart supporter of the college and the university, and a warm and wise friend to fellows and students.
Alan Rodger’s connections to Oxford ran deep. He was a DPhil student at New College, studying with the renowned Roman law scholar David Daube. From Daube he learned the demanding palingenetic methods of Daube’s own teacher Otto Lenel, dismantling the accretions of later centuries to lay bare the original legal understandings of the great jurists of Rome. Alan applied these techniques with consummate skill to problems of property law and delict, leading to his great study of Owners and Neighbours in Roman Law (1972), and later to his insightful and precise analyses of delictual liability under the Lex Aquilia. He wrote beyond these topics over a very wide range, including brilliant work on slavery, on nineteenth-century commercial law in its European as well as British dimensions, and more latterly on Scottish church history.
Alan became a Junior Research Fellow at Balliol, and a Fellow of New College from 1970 to 1972. He then left his academic post for the Scottish Bar, but he never severed his links to Oxford. He served as High Steward of the University, and was Visitor of Balliol and Wolfson as well as St Hugh's. He taught advanced Roman Law in recent years in Oxford, and served on the Law Faculty's external advisory council. He was a fellow of the British Academy and of the Royal Society of Edinburgh. By itself his academic career as a scholar of the law, especially of Roman law and legal history, was unequalled. Yet Alan was also a brilliant advocate and judge, the equal of any of his generation which was not short of great figures. He was successively lord advocate, lord justice general of Scotland and lord president of the Court of Session, lord of appeal in ordinary, and justice of the new Supreme Court. Whether leading the majority of a court or in stark dissent, his judgments were always seized upon and studied for their unique blend of good sense, humanity, insight and scholarly imagination. His historical researches could be seen guiding his reasoning in some of the toughest cases in the House of Lords and the Supreme Court. In one leading case he grappled with multiple causations causing harm to a victim of asbestos where the precise source of contamination was unknown, drawing from Justinian’s passages in the Digest in which even older lawyers discussed cases in which more than one person had attacked a victim, but it was unclear whose blow had killed him. In another case concerning intimidation of witnesses Lord Rodger inaugurated his judgment citing Cicero’s great prosecution of the corrupt Sicilian governor Verres. Thus his classical legal learning added new dimensions of insight to the work of the court in doing justice. He was also a leading thinker in the application of human rights to private law, a particularly difficult intersection. As a judge of the United Kingdom’s highest court, his contributions, so marked by wisdom and humanity, and always expressed with elegance and lucidity, will be missed greatly.
On becoming Visitor of the College, Alan gave a talk to the St Hugh’s law students on “accidents in legal history”. He noted how it was the barest of chances that secured the transmission of the Roman Digest to medieval Europe through the survival of the single Pavia manuscript. Then turning to recent history he told how Lord Wilberforce was called away to a Privy Council committee deciding obscure colonial constitutional issues, and a different panel without him heard the important case of Junior Books v Veitchi, in which Alan represented the appellants as junior counsel. Alan was convinced that he would have won, and the Wilberforce theory of tort in Anns v Merton would early have been refined into a scope of duty model and so survived the tests of time. It was a very good reminder for us that for advocates and judges, law is lived forwards, with anxious awareness that any case can go one way or the other. Only with hindsight does the law begin to appear stable or pre-ordained.
Alan was entirely lacking in pretensions or hauteur, and met every person with unfailing warmth and courtesy, and when appropriate, with constructive bluntness. He worked with unsparing Calvinist devotion to the noble causes of law and legal scholarship, but he also understood that not everyone had his phenomenal focus and talent. One of his greatest gifts was to help and inspire students and younger scholars, and he took a strong interest in bringing on young talent and instilling self-confidence and direction in the younger persons he worked with. His mischievous sense of fun only buttressed the sense shared by friends and colleagues that Alan was on your side, and that time with him would help you take your own work and life more deeply and seriously. If only there had been more time.
Alan Ferguson Rodger, lawyer and scholar, born 18 September 1944, died 26 June 2011.
Joshua Getzler, Fellow in Law