Making scholarly connections: Q&A with Professor Catharine MacMillan, President of the Society of Legal Scholars

Stephen Matthews, Faculty Communications Manager, met with Catharine, to discuss her year as SLS President and reflect on the recent Annual Conference, hosted at King’s College London.

Professor Catharine MacMillan, President of the Society of Legal Scholars and Professor of Private Law at The Dickson Poon School of Law, King's College London, addresses the SLS Annual Supper.

Firstly, I’m interested in how you become President of a learned society like the SLS. How did your Presidency come about?

“Well, the President is elected by the membership, and the convention is that people are asked if they will stand.

“The Presidency is for a year, but you actually have a run up. You spend a year as Vice President-elect, then you are the Vice President and then you become President.

“Different people make different things of these roles. The President can largely choose his or her own course, but it's a very British institution in the sense that you're given all power, but only for one year!”

So, it’s worth explaining what your focus has been…

“Yes, what I have tried to do this year is to build connections with other learned societies in other countries. And the reason for doing that is that it helps facilitate the connections, formal or informal, between individual scholars.

“One of the things that I believe very firmly about law is that it is much better formed if you have an idea of what other people do. Human problems are remarkably similar.

“We have a common law system in England and Wales and, in Scotland, we have a mixed law jurisdiction - part civil law, part common law – but the Society also draw members from civil law jurisdictions.

“My two areas of specialty are contract law and modern British legal history. English contract law is often very different from the contract law in the civil law states. We generally have a much simpler solution to problems, but there will still be elements in other legal systems that might help us overcome a particular problem.

“It's always helpful to look and see what another legal system does. It helps you to identify the strengths and weaknesses of your own legal system. I think good scholarship recommends a solution, and I think we are better placed to offer a solution if we have connections to other scholars and other legal systems, and understand what they're doing.

“I've been working with a Society of German lawyers and at the Annual Conference we had a meeting between the officers of that society and some of ours to think about how do we go forward.

“I'm really concerned that British scholars have these different links. To some extent we've always had it within the common law, Commonwealth countries but less so with the European and the civil law countries.”

In UK law schools, we benefit from a very international group of scholars. In terms of what you have described, does that help?

“I would say ‘yes’ and ‘no’. One of the things that concerns me is the extent to which we will retain these scholars from other countries.

“In the UK, we’ve always been outward-looking, but what we've tended to do is to look outward into other common law jurisdictions, which are sort of allied jurisdictions. We have to look, I think, more broadly and look at civilian jurisdictions.

“In addition, the legal systems of common law, Commonwealth jurisdictions are actually very similar to that of England and Wales, and over time we have attracted a lot of scholars from those countries. And that has sort of stopped.

“We think of the (Brexit) referendum changing our relationship with Europe, but I think the bigger picture is it that it has recalibrated our relationship with other jurisdictions. For young scholars in Commonwealth countries, which are themselves very multicultural and multi-ethnic, one of the attractions of Britain was that it was a part of the European Union. And I don't think the impact of Brexit on this is something many people thought about.”

A live illustration produced to capture the key activities at the Society of Legal Scholars Annual Conference 2022.

So, in terms of the responsibilities of the presidency, obviously there are meetings to attend; we also know about the Annual Conference. What else have you been up to?

“Well, we have a recognition of legal scholarship. So, for example, at the conference, we award the Peter Birks Prizes for Outstanding Legal Scholarship. So, one of the things that the President does is chair the committee that reads all of these books and makes a decision about the winners.

“And then we interface. As a learned society, we’re in consultation with the professional bodies, for example, over the various requirements to become a solicitor or to become a barrister. There have been major changes, as you may know, about how a person becomes a solicitor and the SLS is involved in consultations like these.

“Sometimes the consultations are also about various government policies and directions. So, for example, things like the right of judicial review. The government has been interested in changing the process of judicial review. And so because we have experts in all these different fields, we will coordinate a response and a statement.

“As President, you become the person who interfaces with various government bodies when they have things that deal with law, or academic scholarship and law. So, for example, a body like the Judicial Appointments Commission, we would liaise with them about how a person might become a judge if they were a legal academic. How can we promote that amongst our membership? How

“It's a very sort outward-looking role as President, so when Ukraine was invaded by Russia, for example, we also looked at what we could we do to assist Ukrainians and also Russian dissidents.”

Going back to your theme of ‘connections’, you have identified a large number of groups that you might connect with there. Was there a kind of ‘guiding light’ in terms of what you were trying to achieve through these connections? Is the focus on developing legal scholarship? How would you characterise it?

“Well, I would say it is developing legal scholarship, which is both the teaching of law and also legal research. The Society is a charity and its purpose is the advancement of legal education.

“I'm particularly concerned for younger scholars, actually. I've had the advantage of working with the Erasmus programme and other systems for several decades and I have my own connections to other bodies, but younger people, of course, don't have that.”

So, for those young scholars who are looking for ways they could make connections, particularly internationally connections, what would you suggest?

“Well, what I'm hoping to do with the Society is to have events with other learned societies where we can bring people together, physically. We might invite them to our conference, go to their conferences, and have symposia on topics of mutual interest that we could explore from different perspectives.

“In other cases, where the societies are farther away, we can think of ways to meet online. We are also thinking of setting up a system where somebody can write in and say something like, ‘I'm interested in child custody issues in the case of divorce, how does your jurisdiction deal with this?’ We could match scholars up. In some instances, maybe nothing would come of it, but in some of them, it might lead to a rewarding and fruitful collaboration.

“But, going back to your question about young scholars, one thing we can all also do is contact people, you know, more or less out of the blue.

“I think the Internet can segregate us - you read something online and then an algorithm only sends you similar things – but the internet can also facilitate meetings. So I would encourage young scholars to reach out and make those connections.”

A panel at the Society of Legal Scholars Annual Conference 2022, held at King's College London.

That's really interesting, and it brings us nicely to the conference itself. In recent years, you had to find alternative solutions due to the pandemic. This year’s conference was in-person, with some sessions hybrid. I imagine that was quite an emotional experience for some. Was that sense of people coming together after a time apart tangible?

“I think that it was. I think people were delighted to be able to go places, to meet in person.

“It's the sort of informal contacts that are so important. So, coffee breaks are important; lunch is important; supper is important.

“I always tell young scholars who are trying to save their conference budget, ‘You will make far more rewarding contacts over supper than you ever do in a session on the formative elements of contract law!

“This year’s conference presented some interesting challenges because people came from around the world to this conference. And one of the fascinating things about COVID is it was the same disease but, of course, governments dealt with it in very different ways. So, some of the people, like the Australians, hadn't been able to leave their countries; others had been really locked down for months and months and months. Many people came from jurisdictions where they were still wearing masks, and so there was a bit of work involved to navigate those issues.

“But mostly what I liked about the conference - to me what was fantastic - was to bring all these different people together: those attending could meet old friends, make new ones, and see new directions.”

And as someone interested in British legal history and more contemporary issues like Brexit and the impact of COVID, I guess there was a particular interest in seeing some of the debates unfold?

“Well yes, what really interests me about legal history is that we can really only understand our law or legal institutions if we know how we got there.

“To be boring and technical here, with our common law system, in large areas of law, our law is actually established by the courts. So, you're reading judicial decisions, and then you’re trying to apply those decisions which were decided in the past to current circumstances. And I actually think that process - looking backward to go forward - is very similar to history. There are shared commonalities between these two disciplines.

“I think that when we look backward, what we can see is a particular case was decided not for the reasons we now use, but for completely different reasons, and I think that we have to recognise that and question whether or not that case is something we should apply going forward.

“Some lawyers have said to me, ‘Catharine, we're not going back to that’, to which I say, ‘I'm a woman professor. I don't want to go back one week, believe me!’ But what I do want to do is to take this law and say, ‘Well, we thought this case was really important but, actually, as we have examined it, we’ve realised it isn't as important as we thought.’

“Legal history, in many ways, is the study of legal change, and so you're trying to figure out how legal change happens. And, actually, one of the biggest drivers of legal change when you examine the scholarship tends to be individual lawyers. In history, the ‘Great Man’ theory of history has been discarded at the present time, and I think correctly so, but in law actually the ‘Great Man’ - or increasingly, I hope, the ‘Great Person’ - is still relevant because an individual judge or an individual legislator - and sometimes even an individual barrister - can have a great impact on the later direction of things.”

SLS members meet before the Society's Annual Supper, held at Lincoln's Inn.

Given the experience of the last couple of years, did you get a sense, through the conference, of a specific impact of COVID on the type of research or ideas being presented? People have been left alone with their ideas for a while and some have been left alone to focus on their chosen subject. Did you get a sense of a kind of ‘step forward’ in terms of the ideas that were coming out of it, or the way people were approaching things?

“That's a good question. I would say ‘yes’ and ‘no’. One of the things that became apparent through meeting legal scholars at the conference is that people had very different COVID experiences. So, for some people COVID really kind of exacerbated or extenuated existing situations, didn't it? And it accelerated certain changes. So, as an example, for legal academics who had a more student-facing role, the pressures really increased.

“I think there was a misperception, in the public mind, that because we were teaching our students online somehow it was a doddle. It was actually far more difficult. I mean, I've never done anything that was this time-consuming except for the very first year that I came to lecture and had to write all my lectures. We were reinventing the wheel, as it were, coming up with new things.

“So, some had only came back to legal scholarship as COVID abated. Others had very intense periods. I mean, I met some scholars that had written an entire monograph or two monographs during this time period because they basically couldn't get out and couldn't do anything.”

So, you are coming to the end of your time as President. You will still have responsibilities as Immediate Past President, but what comes next?

“Well, in terms of in terms of ongoing responsibilities, I have told the SLS Executive that if they are happy for me to do so, I would stay on in an ex-officio capacity and work to build the links I have mentioned.

“And then the other thing that I'm looking forward to is to focus more closely on my legal research. One of the things about legal history is that it's a very time-consuming discipline. You can sometimes spend days in the National Archives at Kew and then realise that, while it was all terribly interesting, you actually don't have anything that's going to go into the paper that you're working on or, in the worst case, your entire hypothesis isn't workable now that you've seen the documents.

“So in a way, I suppose I'm looking forward to retreating to the archives at Kew and focusing a bit more on legal scholarship.”