AN EMPIRICAL STUDY ON THE SINGAPORE COURT OF APPEAL'S CITATION OF ACADEMIC WORKS: REFLECTIONS ON THE RELATIONSHIP BETWEEN SINGAPORE'S JUDICIARY AND ACADEMIA

• Citation: (2017) 29 SAcLJ 75
• Published date: 01 December 2017
• Author: CHEAH W L LLB (Hons) (National University of Singapore), LLM (Harvard), DPhil (Oxon); Attorney and Counsellor at Law (New York State); Assistant Professor, Faculty of Law, National University of Singapore. GOH Yihan LLB (Hons) (National University of Singapore), LLM (Harvard); Advocate and Solicitor (Singapore); Associate Professor, School of Law, Singapore Management University.
• Date: 01 December 2017

In the light of Singapore's aspiration to be a centre of legal ideas in the region, it is opportune to examine the Singapore courts' use of legal scholarship. This article provides a preliminary map of the Singapore Court of Appeal's citation practices. It provides an overview of the Singapore Court of Appeal's use or citation of legal scholarship in its decisions over the past 50 years. It identifies and evaluates trends in the Singapore Court of Appeal's citations of academic material and the types of academic material cited.

I. Introduction

1 It is opportune, in the light of Singapore's aspiration to be a centre of legal ideas in the region, to examine the Singapore courts' use of legal academic works. By “legal academic works”, the authors have in mind various types of scholarly works. Thus, this article is not concerned with non-legal academic works that are sometimes referred to by the courts, such as factual information relating to the psychology of witnesses. The Singapore courts routinely refer to such academic works in their decisions, but the details of such use as well as its impact

is less understood.1 In the first product of a larger project, this article provides an overview of the Singapore Court of Appeal's use or citation of legal scholarship in its decisions over the period from 1970 to 2015. This article seeks to answer two broad questions: first, what are the long-term trends in the Court of Appeal's citation of academic works, and secondly, what are the wider implications of the court's citation of academic material for the legal community, in particular the relationship between the Judiciary and academia in Singapore?

2 By way of background, it is clear, even anecdotally, that there has been an increase in the Court of Appeal's citation of academic material in its decisions. Although judicial citations of academic works do not accurately or fully reflect the extent to which such works influence judicial decisions and outcomes, such works play some role in the court's construction and justification of its decisions. In other words, judicial citation of academic works, at the very least, shows that the court found the cited academic work useful when constructing and explaining its decisions to the legal community and wider public. By serving then as a one of the building blocks of judicial decisions, academic works contribute to the development of reasoned and quality case law. This recognition of the role played by academic works in the Judiciary's construction of decisions impacts the Judiciary, academia, and broader legal community. To further understand these implications, there is a need to ascertain more details about the Singapore judiciary's citation practices when it comes to academic material.

3 This article provides a preliminary map of the Court of Appeal's citation practices. There are two reasons for choosing to focus on the Court of Appeal. First, in Singapore, the Court of Appeal's judicial leadership and its role in resolving difficult legal questions within the Singapore court system is well recognised. The court's use of academic material sends an important message about how the Singapore judiciary views academic research and its relevance to the formulation of judicial decisions. Second, as this is one of the first focused empirical studies on judicial use of academic material, it was necessary in the interest of time and resources, to focus on one court as opposed to a broader selection of courts within Singapore's judiciary.

4 To answer the two broad questions posed earlier, this article will be structured as follows. Part II2 will briefly survey, from a comparative perspective, existing debates about the relationship between the

Judiciary and academia. Research and debate about this relationship is in its nascent stage in Singapore. Part III3 sets out and evaluates empirical data about trends in the Court of Appeal's citation of academic material and the types of academic material cited. Finally, Part IV4 draws out the implications of these findings and puts forward some suggestions on bringing the relationship between the Judiciary and academia forward in Singapore.

II. Developments and discussions in other jurisdictions

5 While judicial citation practices in Singapore will be shaped by socio-political, legal and cultural conditions in Singapore, it is useful to consider developments and debates occurring in other jurisdictions, particularly those with which Singapore's legal system maintains historical and contemporary ties. Indeed, Singapore is part of the wider common law world with which it shares similar judicial and legal education practices.

6 This part highlights developments and debates about the relationship between the Judiciary and academia in other jurisdictions that impact the judicial citation of academic work. It focuses on developments in the common law world due to Singapore's common law heritage but also refers to other jurisdictions. This part is structured around three questions. First, what do academics do and how has this changed? Secondly, what do judges do and what are some changes impacting the judicial decision-making process? Thirdly, in the light of these changes impacting what academics do and what judges do, how have judicial perceptions of academic work and judicial academic citations evolved over time?

A. What do academics do?

(1) Development of legal academia

7 Legal academia has evolved tremendously in recent years. Although a research culture did not emerge in English law schools until the 1960s and 1970s,5 academics in the common law world have thoroughly reinterpreted their function not only as teachers but as primarily researchers. Indeed, in England today, full-time legal

academics constitute only a small minority of those involved in teaching the law.6

8 The evolution of legal academia from one focused on teaching to one dominated by research has been said to be down to several reasons, the first of which is simply that universities have become larger.7 In England, this happened with the post-Robbins expansion of universities in the 1960s, which Bridge believes to be the “true beginning of an English academic legal traditional”.8 This led to legal academics viewing themselves in a better light and believing that they can make a viable contribution to the legal profession. This is in contrast to Laski's view in 1929, when he stated that “the law teachers are a very inferior set of people who mainly teach because they cannot make a success of the bar”.9 Secondly, and in a related vein, academics came to see their contribution to the legal profession as going beyond the mere education of lawyers; instead, they saw that they could make an active contribution to the development of the law itself. Together, these reasons promoted a culture of research within legal academia.

9 While law academics are now more engaged in research than ever before, there are some nuanced developments that must be highlighted. First, in contrast to the situation in civilian countries like France, Italy and Germany, legal academics in the common law world still do not see themselves as a collective body that represents a source of law, albeit an informal one.10 The practical implication of this is that whether academic works are in fact referred to by courts is, to a large extent,11 dependent on whether practitioners, who function as the conduit between judges and academics, refer to such work in their arguments.

10 Secondly, the social prestige and status of legal academics in common law jurisdictions is still not the same as in civilian countries.12 In England and other similar jurisdictions, judges and practitioners still have a prestige that exceeds that of academics. For example, when The Times published a list of the UK's most influential lawyers in August 2008, none of those featured in the top ten was an academic, though there were judges featured alongside practitioners in this top ten. The remaining 90 featured only four academics. In 2009, the same list included merely five academics among 100 lawyers. Although it is rightly said that such lists should be viewed with caution,13 they do reveal, at least tangentially, the status of academics vis-à-vis other actors in the legal profession. Of course, academics become academics for reasons other than monetary rewards or social status, but such lower social prestige has practical implications. For example, legal academics in common law jurisdictions are not as influential as their counterparts in civilian jurisdictions. Their exact contribution to the development of the law may therefore be downplayed or not recognised.

11 Thirdly, the direction of research undertaken by legal academics has changed. In more recent times, successive Research Assessment Exercises have demanded scholarship originality and pulled scholars away from the writing of textbooks to more critical work.14 This is a theme which will be returned to below, but it is becoming increasingly clear that judges elsewhere are finding a widening gulf between academic works – which have increased in number – and the practical relevance of such work. The practical implication of this is that while legal academics may be producing more material than before, a lesser proportion of such works is perceived by judges and lawyers to be of direct relevance to their daily work. Indeed, this is not a problem particular to the legal sphere, but also permeates other disciplines as well. A recent study concluded that an average academic journal article is read in its entirety by about ten people.15

12 The bigger problem undoubtedly is the reward incentives that universities provide for academics. Thus, another point to be considered is whom academics are largely writing for, given this incentive structure.

From the perspective of impact, Ulen has observed that academics writing in a non-doctrinal social science manner...