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William Swadling
Fri, 9 Jul 2004 08:46:22 +0100
Peter Birks


I gather that there is difficulty accessing the Times website from abroad. Here is a copy of the obituary.





July 09, 2004

Professor Peter Birks
Regius professor at Oxford who shaped the law of restitution as a modern discipline

Peter Birks, the Regius Professor of Civil Law in the University of Oxford, was one of the greatest English academic lawyers of our time. Best known for his work on the law of restitution, he was also a distinguished Roman lawyer and legal historian. But his learning and scholarship tell only part of the story. For Peter Birks was a charismatic leader and a dynamic teacher, who inspired fellow academics and generations of students with his passion for academic law.

He was also a dedicated administrator, both within Oxford and in his work for the Society of Public Teachers of Law. There have been other brilliant legal scholars and teachers but few, if any, have had Peter Birks's intensity of commitment to the study of law in universities.

Peter Brian Herrenden Birks was the son of a GP. He attended Chislehurst and Sidcup County Grammar School in Kent, where he was a talented rugby player and cricketer and excelled in history and Latin. Although he contemplated a career as a classics master, he chose to read law at university and won a place at Trinity College, Oxford. Here he was fortunate to have as his main tutor the Roman lawyer and Irish constitutional expert John Kelly, a multi-talented man who went on to a chair at University College, Dublin, and to Irish politics. He made a lasting impression on the young Birks and set him on the academic road.

After going down from Oxford, Birks spent a year as a faculty teaching associate in the United States and the following year completed a masters degree in law at University College London. It was here that he first encountered the law of restitution, which was then being taught by George Webber.

Birks's first academic job, in 1966, was as a lecturer at UCL in the law department dominated by the distinguished Roman lawyer, Tony Thomas; and, while his first love was Oxford, his loyalty to UCL was also to prove lifelong - recognised by his being made a fellow there in 1993.

In 1971 he was appointed Law Fellow and Tutor at Brasenose College, Oxford. The decade that followed was to be the happiest of his academic life. The role of an Oxford tutor suited him perfectly, combining as it did the opportunity to carry out fundamental research while challenging and shaping the minds of gifted students through the tutorial system. He regarded it as a privilege to be at Brasenose with its long legal tradition and headed, during his time as a tutorial fellow, by Herbert Hart and subsequently Barry Nicholas, both internationally-renowned academic lawyers. As Birks wrote in the preface to one of his books: "Brasenose was a wonderful place to be and to be a lawyer." His excitable and intensive tutorial style - in which he demanded high-level answers to difficult questions - proved the perfect foil for the calm reasonableness of his senior law colleague, John Davies.

It was during these years that he started to teach restitution on the Oxford postgraduate BCL course. His seminars in restitution were to become legendary. Taught with a variety of colleagues over the years (including his former student and long-time friend, Jack Beatson, now a High Court judge), the seminars attracted some of the finest law students from across the Commonwealth. They became accustomed to Birks's brilliance in cutting through a mass of detail with crisp and decisive explanations and comments occasionally punctuated, at least in the early years, by silences while he wrestled with where the truth lay. Many came to Oxford simply for the experience of being taught by him. It was in these seminars that, with his characteristic passion and energy, he mapped out and tested - through discussion and argument with students and colleagues - his ideas on the topic. In 1985, having left Oxford to take up the chair of civil law at the University of Edinburgh, Birks finished and published his seminal work An Introduction to the Law of Restitution.

This branch of the law had first been brought to the attention of English lawyers in 1966 by Robert Goff, later to be a law lord, and Gareth Jones, in their book, The Law of Restitution. They had shown that a mass of English legal decisions, both at common law and in equity, were alike in being concerned with the reversal of unjust enrichments. If Goff and Jones could thereby be said to have "created" the subject of restitution in England, it was to be Birks's book that triggered the huge modern academic interest in it. He argued, with the clarity and rigour and dramatic turn of phrase that were the hallmarks of his unique style of prose, that an elegant and illuminating conceptual structure underpinned the cases granting restitution of an unjust enrichment at the claimant's expense. The law was therefore revealed to have a transparent rationality, with the judges being guided by coherent principles that ensured that like cases were treated alike. In the Birksian world there was no place for labels and fictions that were misleading or obscure. They were replaced by modern language that was precise and clear, and rendered the law and legal decision-making open and intelligible.

Birks followed the publication of his book with a torrent of articles on various aspects of the law of restitution. By now his work was inspiring not only other academics but was also influencing practitioners and judges. He came to be held in great esteem by many senior judges who admired the power of his analysis in pointing the way to a principled decision. The respect afforded to his views reached the point where, in one case, even a mere footnote in a Birks article proved to be the subject of several paragraphs of reasoning in the speeches of the law lords.

As a Roman lawyer, Birks's main interest was in the law of delict. His very first published article was on the early history of iniuria and, in line with his firm view that teaching and research complemented one another, he was still teaching an advanced course on the law of delict in Oxford until a few months before his death. He also produced fascinating work on Roman property law. During the tenure of his chair at Edinburgh he joined with Grant McLeod in producing a new translation of Justinian's Institutes and this has become a standard text for all English students of Roman law. Throughout his career Birks was a passionate believer in the value of Roman law as a means of introducing students to refined legal concepts such as rights in rem and rights in personam. He was a great admirer of the work done by Gaius and Justinian in classifying Roman law in their Institutes and this was to be the underpinning of his approach to modern English law. It was the Roman law of quasi-contract that led Birks to the English law of restitution.

While at Edinburgh, he turned his attention to the Scots law of unjust enrichment and, through his articles, contributed enormously to the way in which it subsequently developed. He drew inspiration there from talking law with his great friend Alan Rodger, who was then at the Scottish Bar and was later to rise through the Scottish judiciary to become a law lord. Birks would fortnightly catch the night coach from Edinburgh to Oxford not only to be with his wife Jackie but also to give weekend tutorials in Brasenose on Roman law and restitution. The strain of travelling - and his respect for the excellence of its law faculty - led to him accepting a chair at the University of Southampton, but a year later in 1989 he was appointed to the regius chair of civil law at Oxford and to a fellowship at All Souls.

By now, he had become increasingly interested in the work of the Society of Public Teachers of Law (SPTL). For seven years he acted as its honorary secretary and, in that role, was the person primarily responsible for transforming it, through root and branch reform, into today's thriving learned society. Not least of his achievements was in successfully pushing for the society to be opened up to all law degree teachers (so as to include those from the former polytechnics). During these years and subsequently, his decisive views and deep knowledge of the legal academic community made him a hugely influential figure in the law schools, not least in advising on appointments.

Through his position in the SPTL, he also argued the case for entry to the legal profession to be restricted to those with law degrees. Although that mission failed, a welcome effect of Birks's high-profile views was to help to break down some of the traditional barriers between the academic and practising branches of the profession. This was further helped by the SPTL seminars, which Birks organised on a regular basis in All Souls. These brought together academics, practitioners and judges to debate not only matters of legal education but also difficult areas of private law. Several books edited by Birks were the product of those seminars including The Frontiers of Liability (1994); Reviewing Legal Education (1994); Laundering and Tracing (1995); Wrongs and Remedies in the Twenty-First Century (1996); What are Law Schools For? (1996); Privacy and Loyalty (1997); and The Classification of Obligations (1997).

Birks was revered not only by those who took his taught courses but also by his doctoral students. He was a meticulous supervisor who treated a thesis as a joint project and spent long hours helping and working with his students. Several high-quality books written by his most talented pupils are a permanent testament to his devotion and skills as a supervisor.

In the early 1990s he devoted a huge amount of time and energy to the creation of his brainchild the Oxford Institute of Legal Practice (OILP), a joint venture between Oxford University and Oxford Brookes University. He saw OILP, founded in 1994 and operating from a modern building near the railway station, as largely fulfilling his dream that within Oxford the Law Society finals course (now called the Legal Practice Course) should provide a rigorous academic link between the undergraduate law degree and practice.

In the past ten years he became particularly interested in the modern comparative law of unjust enrichment. His reliance on Roman law in his writings about English law was now supplemented by references to German law, which he particularly admired for its detailed clarity. These civil law influences encouraged him to focus more widely on the classification of English private law. He argued that accurate taxonomy was as important in law as in the natural sciences. His views on classification continue to inspire heated academic debate across the common law world. Critics saw Birks as a rule-orientated formalist who failed to recognise the validity of overlapping categories and the wide choices faced by judges in decision-making. His supporters applauded the clarity and rigour and rationality of his approach.

Birks's concern with classification led him to believe that an important book for English practitioners and foreign lawyers would be one that, with a clear structure, gave an overview of the principles of English private and public law. Gathering together a team of academic contributors under his general editorship, a two-volume work, English Private Law, was published in 2000. Its companion, English Public Law, followed this year.

By the mid-1990s Birks's reputation as an exciting and provocative lecturer had travelled far and he regularly accepted speaking invitations from all over the world. A Birks lecture tended to be something of a showpiece: he usually lectured without notes and commonly with a missionary-like zeal. He was a visiting professor at the Australian National University in 1989, at the University of Nijmegen between 1994 and 1996, at the University of Texas in 2001 and at the University of Leiden in 2003. The series of lectures that he gave at the University of Western Australia in 1992 on Restitution - The Future and at the Victoria University of Wellington in 1999 on The Foundations of Unjust Enrichment were published as books. Although he was offered lucrative permanent positions in the United States and elsewhere, he turned them all down, knowing that he would be unhappy away from his beloved Oxford.

Despite the firm and decisive way in which he expressed his views, Birks was never afraid to change his mind in the search for an ever-more precise and stylish picture of the law. His most recent book, published in the Clarendon Law series of which he was general editor, confirmed his conversion to a more civilian way of thinking about the law of restitution. In Unjust Enrichment (2003) he emphasised his preference for the subject being called by its cause of action (rather than restitution). More importantly, and radically, he favoured a generalised "absence of basis" approach over his previously articulated "unjust factor" scheme.

Up to a few weeks before his death and refusing to allow his ill-health to stop him working, he was preparing a revised version of that new book. All in all, he published more than 120 law articles or case notes and wrote, or edited, some 25 books.

He was made a Fellow of the British Academy in 1989, a member of the Academy of European Private Lawyers in 1994, an Honorary Fellow of Trinity College, Oxford, in 1994, an Honorary QC in 1995 and a foreign member of the Royal Netherlands Academy in 2001. He was awarded the degree of DCL at Oxford (1991) and LLD at Edinburgh (1991) and honorary degrees by the universities of Regensburg and Nijmegen and De Montfort University. He was President of the Society of Legal Scholars (the renamed SPTL) for 2002-03.

Peter Birks was a warm, loyal and entertaining companion to his close friends with whom he loved to talk about law and legal personalities. For someone with such a powerful mind, he was modest about his own abilities and generous about those of others.

While work totally dominated his life - he did not believe in holidays - he did enjoy gardening, music and watching cricket.

His first two marriages were dissolved before he found long-term stability and happiness with Jackie, whom he married in 1984. He remained close to his sister throughout his life. He is survived by his wife and a son and two stepchildren, a daughter from his first marriage and a son and a daughter from his second marriage.

Cherishing their traditions, Birks had a deep sense of obligation to his college and the Oxford law faculty and worked tirelessly for them. He was generous to a fault with his time for students and colleagues alike. With his death, English academic law has lost its most dedicated scholar and its leading ambassador.

Professor Peter Birks, academic lawyer, was born on October 3, 1941. He died from cancer on July 6, 2004, aged 62.


William Swadling
Fellow and Tutor in Law
Tutor for Admissions
Brasenose College
Oxford OX1 4AJ

Tel: +44 1865 277869 (direct)
Tel: +44 1865 277510 (secretary)
Fax: +44 1865 277520 (direct)

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