Oxford University Comparative Law Forum

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Oxford University Comparative Law Forum

In Memoriam Peter Birks (1941-2004)

(2004) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

In Memoriam

The recent untimely death of Peter Birks, Regius Professor of Civil Law at the University of Oxford and Fellow of All Souls College, has deprived the world of legal learning of a truly great scholar, and the Oxford University Comparative Law Forum of one of its founders and editors.

Peter Birks was widely known as one of the most prolific and profound legal writers of his time. However, he embraced all aspects of academic work with equal zeal and passion. For those whom he taught or who taught with him, he will be best remembered through his teaching. He was an inspirational lecturer, who usually needed no notes to explain the law and set out his visions crisply and clearly. He was a committed tutor, and a diligent and demanding supervisor.

For those who attended, however, it is the seminars led by Peter Birks which are likely to stand out as their most inspirational academic experience. He demanded much, perhaps too much, in terms of preparation. Facts and opinions expressed in leading and less leading cases (in later years indicated by a decreasing number of asterisks next to the case on the reading list) had to be summarised by students and were expected to be at everyone’s fingertips. Then came the time to cut through undergrowth, expose the core issues and invite participants to submit their arguments. In those discussions, he often had a tongue in cheek way of insisting, with a broad grin, that there was a right position (his own) and a wrong one (that of everyone who disagreed). One could have been forgiven for wondering whether what looked like mocking intolerance was really feigned. But why would he then habitually invite and almost insist on criticism of his own positions? When a student presented a new thought during a seminar, it would frequently take him a minute to ponder, more or less silently, the likely impact on his own edifice, until he eventually gave a response, sometimes causing him to rethink his own ideas. On one such occasion, a former student and subsequent colleague, pointed out to him that the first sentence in Chapter I of his “Introduction to the Law of Restitution” was wrong as a matter of English law: “Children quickly learn that if they give their toys away they cannot expect to get them back”.

For Peter Birks, teaching formed part of academic debate and thus of research. But the converse is equally true. His writing seeks to educate. He did not pretend that complexities can be always reduced to simplicity. What he did was to make complexities easier to understand, in particular through a coherent and principled classification. His strong interest in Roman and comparative law were instrumental in taking English obligations law to a refined level of abstraction which Gaius had left unfinished and which even those German 19th century scholars who were almost obsessed with abstraction had failed to achieve. Birks insisted that most obligations were based on one of three main events: consent, wrong, or unjust enrichment.

The last of these, unjust enrichment, became his greatest academic passion. Peter Birks was instrumental in developing what once was an untidy, incoherent mass of legal rules appended to contract (“quasi-contract”) into a coherent and principled proper area of English law, which gradually became accepted as such by courts in England and other common law countries.

The path was long and tortuous. “Change of position”, which Peter Birks greatly helped to advance to what is now a general defence against an unjust enrichment claim, at the same time serves as shorthand for the process in which Birks, at once the most fervent believer in, and the severest doubter of, his own opinions, developed and set out his own view of the area. His latest book, Unjust Enrichment (2003), destroys his previous, widely accepted approach, namely that an enrichment of one person at another’s expense calls for restitution only if there is a particular ”unjust factor”, and turns towards the civilian “absence of basis” approach he had vividly rejected on many earlier occasions. The reasons for the success of his academic work and his frequent change of views may ultimately be the same, namely his ability to re-think any position at any time, combining the curiosity of a six year old with extraordinary in-depth knowledge and almost overwhelming analytical power.

Perhaps unusually for an exceptionally gifted teacher and academic writer, Peter Birks extended his passion to matters which could be labelled as “administrative”. For him, legal education was to be taken seriously not only in the classroom, but also on an institutional level. This is evidenced not only in his comments, lectures and published works on legal education, but also and in particular through his long-term work for the Society of Legal Scholars (previously Society of Public Teachers of Law), and the Oxford Law Faculty. During his seven years as Honorary Secretary of the SPTL (1989-96), among other things he opened membership of the Society up to those teaching at the new universities (the former polytechnics) and promoted academic debate through a series of high-profile SPTL seminars at All Souls College. He also served as SLS President 2002-3, and as Vice-President 2001-2. Menial tasks were not too low for him. Oxford colleagues remember times when Peter Birks loaded copies of the SPTL Reporter on his bike and distributed them to the twenty-five Oxford colleges which teach law.

He left a strong mark on the Oxford Law Faculty, where he taught from 1971 until his death, with the exception of the years 1981-89, during which he held chairs in Edinburgh (until 1987) and Southampton. He acted as Director of Graduate Studies for Research Students from 1996-2000 and from 2003-4. Hardly any faculty or law board meeting would pass without Peter Birks raising his voice and making valuable contributions, and he was usually fully involved in the decision making process both on and behind the scene.

He was always generous with his time if he thought that his help could make a difference, which usually was the case. We mourn the death of a great scholar, colleague and friend.

Peter Birks, born 3 October 1941. Read law at Trinity College, Oxford (BA/MA), and at University College London (LL.M). 1964-5: Teaching Associate, Northwestern University. 1966-1971: Lecturer in Law, University College London. 1971-81: Fellow and Law Tutor Brasenose College, Oxford. 1981-7: Professor, University of Edinburgh. 1988-9: Professor, University of Southampton. 1989-2004: Regius Professor of Civil Law, University of Oxford and Fellow of All Souls College, Oxford. Honours include DCL (Oxford), Dr. jur.h.c. (Regensburg), LLD (H.C.) De Montfort; FBA, FRSA, QC; Honorary Fellow, Trinity College, Oxford; sometime Corresponding Member of the Royal Netherlands Academy. Died 6 July 2004.

Gerhard Dannemann
Written with the help of the entire Editorial Board.

© 2004 Gerhard Dannemann. This HTML edition © 2004 University of Oxford.
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