Professor Sir Basil Markesinis QC, FBA, Doctor honoris causa (mult.) died on 23 April 2023 at the age of 78. Markesinis was a distinguished comparative lawyer whose career spanned forty years. He was important not only for the comparative projects he undertook, but also for the institutions he founded to promote comparative law and the methodology that he advocated.
Markesinis’s own assessment of his career is found in his book Comparative Law in the Courtroom and Classroom (Hart, Oxford 2003), and much is reproduced in Markesinis and Fedtke’s book (Engaging with Foreign Law (Hart, Oxford 2009). He considered that comparative law must not only be done well, but that it should establish a methodology which others could follow. He praised the contribution of great post-War comparative scholars such as David, Tunc, Hamson, Lawson, Mann and Schmitthoff, most of whom were located in Britain. But he felt that, though this French and British group did impressive comparative law themselves, they left no trace of their methodology and thus no lasting legacy. Markesinis sought to do things differently. A lasting comparative law legacy involved both a scholarly methodology and an influence on the way the law could be developed by practitioners, particularly judges of supreme courts.
The methodology Markesinis espoused he described as ‘packaging’. ‘Packaging’, he wrote, ‘consists of presenting foreign law through litigated factual situations which have close parallels in two or more countries’ (Comparative Law in the Courtroom, p. 218). His largest works were on German contract law and German tort law. Each of these involved both a doctrinal overview of the German law written for an Anglo-American audience, together with translated cases and some commentary. Markesinis had an eye for controversial areas and focused his presentation on these, offering thereby materials which practitioners could use in pleadings or in judgments. Such an enterprise could not be the work of one man. It required the collaboration of scholars from other jurisdictions, especially Gerhard Dannemann, Jörg Fedtke and the late Hannes Unberath, as well as younger British scholars. It also required the work of a number of very skilled translators, often senior academics.
Packaging does not necessarily involve translating and commenting on cases. It can also be achieved by collaborative essays on a specific topic. The best example of his work in this regard was Tortious Liability of Statutory Bodies: A Comparative and Economic Analysis of Five English Cases (Hart, Oxford 1999). It involves a study of key recent leading cases on a controversial area of law. Markesinis then worked with non-English scholars and with younger British scholars to produce a series of essays which provided a developed debate on the right way to solve the underlying problem. The work is short and readable, making comparative material accessible to practitioners and students alike. In other areas, such as privacy, Markesinis convened collective essays in order to provide both the exposition and an understanding of the approaches of different legal systems to the protection of privacy (Protecting Privacy (Oxford University Press, Oxford 1999). Though he did not foresee this at the time, the debates now resonate within the European Union’s regulation of data protection. Packaging of this kind drove collections of essays on compensation for personal injuries (as well as a book in French with Geneviève Viney) and on the introduction of the British Human Rights Act 1998.
Many of the younger scholars who collaborated with him have gone on to glittering careers in their own right – for example, Dannemann, Deakin, Fedtke, Johnston, and Munday. In working closely with younger scholars and furthering their careers, Markesinis was repaying the debt he owed to an earlier generation. He worked with Lawson on Tortious Liability for Unintentional Harm in the Common Law and the Civil Law (Cambridge University Press, Cambridge 1982) and with Dias on The English Law of Torts: A Comparative Introduction (1st edition, Bruylant, Brussels 1976). The former was a textbook in volume 1 with translated materials in volume 2 which exposed him to the advantages of this approach which he used later in his own projects. But collaboration in textbook writing on common law subjects such as torts and agency has obvious advantages.
Part of Markesinis’s concern to leave a legacy involved creating institutions which furthered comparative law. The Institute of Anglo-American Law at Leiden University was founded with financial support from Clifford Chance in 1988. Soon after, he created the Institute of Global Law at University College London. He founded the Institute for Transnational Law at the University of Texas School of Law and the Oxford Institute for European and Comparative Law in 1995. The plans and the staffing needs were ambitious and required outside monies which Markesinis was good at raising. The hallmark of the institutions was the invitation extended both to foreign academics and to leading practitioners to speak at public events to scholars and students. Programmes of activities for students were designed to foster a spirit of enquiry that went beyond the national boundaries which typically define national legal systems and legal professions. The UCL Institute also gave him the opportunity to develop online resources which are now hosted at Texas (https://law.utexas.edu/transnational/foreign-law-translations/). By harnessing new technology, he was able to make available translated cases not only on tort and contracts, but also on constitutional law.
Ambitious institution building is always difficult within a law school whose primary mission is research and teaching across a wide range of subjects. As obituaries have noted (see The Times, 13 May 2023), this would sometimes lead Markesinis into conflicts with Law School and University authorities, keen to hold the ring around the many stellar scholars whose ambitious projects competed for resources and attention. Unfortunately, this led to a relatively short tenure in each of the five English professorships he held (at Queen Mary, two at Oxford and two at University College London). He clashed in particular with the ethos of Oxbridge. He had a doctorate from Cambridge and held two chairs in Oxford. He had many friends who were members of these Faculties, and he wrote warmly of very many he had known. But he felt the system let down younger scholars. The colleges drew too much energy into teaching and foster an insular approach. For him, the German model of assistantship posts would foster long-term collaboration between senior and junior scholars to the mutual benefit of both (see Comparative Law in the Courtroom, pp. 19-21). He was clearly frustrated at his inability to achieve the kinds of change in the institutions where he worked that would achieve his vision.
Markesinis had an overriding desire that common lawyers would be less insular and would look to European civil law systems for inspirational ideas, and that the same would happen in reverse. Much of his substantive comparative law scholarship was directed to this end. His collection of essays on The Coming Together of the Common Law and the Civil Law (Hart, Oxford 2000) reflects this ambition in a remarkable way. A one-day conference in London to mark the new Millennium brought together Lords Irvine, Bingham, Woolf, Steyn, and Goff, the President of the Court of the European Communities, Dr Iglesias, the President of the Court of Human Rights, Dr Wildhaber, the President of the German Constitutional Court, Professor Limbach, Justices Lenoir and Mirabelli, respectively of the French and Italian constitutional courts. He moved easily among senior judges and politicians in many western European countries. He sought to draw on their influence and to influence them to take a broader perspective in solving the problems of law. By inviting such senior judges from abroad to speak, he was able to draw in audiences of practitioners or students who would never come to listen to an academic making similar points. Equally, by convening senior judges from different jurisdictions, he was able to encourage debate among them about the best way to solve legal problems. He knew many of them very well and sought to influence them privately as well as publicly.
A vital dimension to his vision of comparative law scholarship was that it should be useful to practitioners. He attributed this perspective to the influence of Goode (see Comparative Law in the Courtroom, p. 171). Markesinis took great pride in being able to provide judges like Lord Goff with packages of useful information on cases before them. Indeed, on one occasion he did actually appear before the House of Lords to offer a way forward in relation to tortious liability for economic loss. But the receptivity of the Law Lords and subsequent judges was mixed. He reflected in All on the Same Path (vol.2, Hart, Oxford 2001) on these experiences. He welcomed the willingness of judges to discuss foreign insights and of practitioners to use them (see Comparative Law in the Courtroom, especially chapter 4). Influencing judicial decisions provided a benchmark of the utility of comparative law. He was sceptical of citation counts as an indicator of influence, but he did think influencing courts and legislative bodies was an important role for comparative lawyers. He contrasted this with more insular academic concerns with topics such as the possibility of comparison.
Although Markesinis was a comparative lawyer and was originally trained in Greek law, he became a leading English common lawyer. His book on Tort Law, originally written with Dias and later carried on with Deakin and Johnson, and his book on Agency with Munday are substantial works that have undergone many editions.
Markesinis was a very cultured man. He loved to travel and knew a lot. The books he wrote in his retirement were on topics such as art, music and Greek mythology. He could be very kind to friends and to colleagues, especially younger colleagues. He had many fine qualities which extended beyond his legal scholarship.
Markesinis wrote ‘a scholar may (a) leave successors; (b) create a methodology which others follow; (c) create institutes or centres which then act as research and teaching hubs; or (d) otherwise help the subject to acquire roots in the law curriculum of his country by creating novel networks with others’ (Comparative Law in the Courtroom, p. 99). Markesinis tried to achieve all four, as well as to contribute his own ideas on specific topics. He doubted whether any scholar could be successful beyond modest change (ibid., p. 1). Given his energy and endeavour over the many years of his career, he understated what he himself had been able to achieve, though perhaps he ended up disappointed and frustrated that he could not achieve more.
Basil Markesinis is survived by his wife of over 50 years, Eugenie, who supported him strongly throughout his career and particularly recently when a fall, followed by a long illness, cast a shadow over his final years. To her and to his daughter Julietta and son Spiros, colleagues send their heartfelt condolences.
Posted by Professor John Bell (Emeritus Professor, Cambridge), 16 May 2023
Suggested citation: J. Bell, “Basil Markesinis: An Appreciation”, BACL blog available at https://wp.me/p80U0W-1qN