A long distance from Oxford Jurisprudence

Practising lawyers are rarely given to reflection about what they do and what law is, so it was pleasing to see a good sprinkling of them amongst the audience in mid-September to listen to Timothy Endicott, Dean of the Law Faculty at the University of Oxford, talking about Jurisprudence at Oxford. Prominent among the practitioners was Denis Chang, the distinguished land- lawyer-turned-Basic-Law-expert and one of the founders of the Hong Kong Law Journal.

Denis is proud that he attended Bristol University, which has long had one of the foremost law schools in Britain and is declared by some (and not just Denis) to be nowadays the best, but there he would have received a legal education decidedly less theoretical than that at Oxford. The Oxford undergraduate degree course is entitled Jurisprudence, not law. It is full of so-called “distancing subjects” such as Criminology and Public International Law where they keep black-letter, rule-based law a good distance away. If you pass, you get a BA (Juris) rather than an LLB.

Jurisprudence itself, that is to say legal philosophy, is the paradigm distancing subject. It is a compulsory paper in the final exams for the BA (Juris). It used to be compulsory at HKU too, but it was never popular with rule-loving local students. In the 1980s agitation to remove it succeeded; the requirement became that a student had to take one distancing subject instead.

I loved jurisprudence, so much more interesting than contract or land or trusts. By contrast, those who went on to become successful practitioners tended to hate it. That’s what makes the interest in Prof Endicott’s talk of Denis and the other practitioners intriguing.

Ironic that I should end up teaching, examining and practicing those black-letter subjects. But then I learned a lot more law after I left Oxford than whilst I was there.

The red light

Prof Endicott is a mild-mannered, softly-spoken Canadian (is there any other sort?). A fellow of Balliol, the college of a number former colonial governors of Hong Kong and a host of politicians, he teaches administrative law and human rights as well as jurisprudence.

His talk, with mention of legal philosophers such as HLA Hart, Joseph Raz, Ronald Dworkin and John Finnis, took me back 30-odd years. What, if any, is the connection between law and morals? Why do we obey the law?

To bring out that last question, Prof Endicott resorted to the traffic light illustration: why do drivers stop at a red light? Now, we may like to think that they do so for moral reasons, because we recognize that society would break down without rules of behaviour. But of course it may be out of fear: fear of prosecution by virtue of the lurking policeman or the hidden camera. Or from self-preservation: the risk that, if we don’t obey the red light, we will be hit by a vehicle coming along the other road and obeying the green light.

Of course, the illustration does rather assume that drivers stop at red lights. In a jurisprudence course in Hong Kong the question might have to be revised: why don’t drivers stop at the red light?

Dominated by the Dominions

Dean Endicott’s origins are a reminder of the diverse backgrounds of teachers at Oxford. The Oxford faculty, the largest in Britain, owes much to the Commonwealth. In my time we were taught by Australians, South Africans and New Zealanders as well as Canadians and the odd Englishman. (Not many women in those days, though I expect that’s changed.)

One South African, Tony Honore, has just marked 60 years of teaching there. Gunther Treitel cannot be far behind, though he came from Austria (or was it Germany?). Another South African, Leonard Hoffmann, familiar to us from the Court of Final Appeal, is returning to Oxford after he retires from changing the law in the House of Lords. I was myself taught by, or at least attended the tutorials of, a couple of Aussies.

We used to have that sort of diversity of teachers at the HKU law school. There was quite a clear-out of expats during the 1990s, as was I suppose inevitable. Hiring from overseas has become more difficult. The terms of service are not as generous as once they were; the tie of our dollar to the declining US one has not helped, nor did the cutting of salaries earlier in this decade; it is still a big thing to move out of the common law mainstream to Hong Kong, especially if you have a family.

But there are now more funds and more professorships and we’ve managed to attract a few good people lately. They are mainly youngsters though. Perhaps it would help if we restored jurisprudence as a compulsory course.

Malcolm Merry is Associate Professor of Law at the University of Hong Kong and a Hong Kong barrister. He is the author of Hong Kong Tenancy Law (4th ed, LexisNexis 2003) and co-author (with Paul Kent) of Building Management in Hong Kong (2nd ed, LexisNexis 2008).