Professor David Feldman, FBA
Doctor of Laws
Thursday 18 July 2013 at 11.15 am - Orator: Professor David Clarke
When a young lecturer in the then Faculty of Law some 30 years ago, I recall a debate about the future possibility of having academic judges in a legal system that required, at the time, qualification and long practice as a barrister to qualify for consideration of that status. Identifying a route to judicial status seemed closed.
Madam Chancellor, the accolade of the title of first academic judge is one to which you yourself can rightly lay claim; but Professor David Feldman – one of those colleagues of mine at the time - has the distinction of achieving high judicial office without ever having to venture into the practice of the law beforehand.
David Feldman, the grandson of immigrant families from Eastern Europe, always wanted to be a Bristol Graduate. After his education in Brighton and Hove, via Miss Payne’s nursery, Hove College and Brighton and Hove Grammar School, he applied to Bristol to study both Law and History – he could not decide between them. He later learnt that such an approach did not impress admission tutors and, in any event, he did not impress the examiners sufficiently in one of his A level subjects to make his offer grades and so joined a notable list – I too am one of them Madam Chancellor – of Bristol staff who were rejected as possible students . Applying again the following year, Exeter College Oxford saw his potential and he studied Law there for four years (he chose Law over History because he wanted to emulate Marshall Hall and Perry Mason), under the guidance of Professor Stephen Cretney, later to be a Dean of the Faculty of Law at Bristol and also an honorary graduate of this University. Gaining a BA and BCL with first class honours, he puts his academic student success he down to the beer – a Double Diamond works wonders – and his most satisfying Oxford moment was playing in goal for the college first XI and beating Magdalene 1-0 in the cuppers final.
He was heading for the Bar Finals course when Professor Cretney sent him the advert for a Lectureship in Law at Bristol. He never regretted either applying or accepting the job based in this Wills Memorial Building.
David was a wonderful colleague and became a good friend during his 16 years at Bristol. He threw himself into the social life of the Faculty and University. His languid and relaxed demeanour was utterly transformed when he took his place as a never-say-die goalkeeper of the staff 5-a-side football team. His willingness to face balls coming towards him at great speed meant he was for many years the wicket keeper, and indeed Fixtures Secretary, of the Academicals Cricket Club. He managed to be responsible for the Dean rupturing his Achilles tendon in one match and was always enthusiastic in tennis and squash.
In those days, you taught the subjects assigned to you. For David, one of them was Revenue Law, and by all accounts, he was good at it. But he had rather a red face when he was hauled up for not filing a tax return, and had failed to notice he was on an emergency tax code. But the refund he obtained for tax overpaid enabled him to buy a piano. Not surprisingly, he soon put his teaching energies into those subjects that define his career, Jurisprudence, Legal System, Public Law, and Constitutional and Administrative Law. My best memory is of the year when we were both slated to teach half the first year Public Law lectures. But instead of giving 20 lectures each, we did 40 together, the one giving 40 minutes, and the other a 10 minute critique with a different, and off the cuff, slant. The good students loved it as much as we did; but for some there was the plaintive cry - But what is the answer? I think we got over the message of what University is about.
David’s most annoying habit was to knock on doors at 3.30 or 4 pm and drag his colleagues from their reading and research to Cawardines across the road for tea. After that, the rest of us gave up far too often and did not return to our writing. Later we learnt that for David it was the prelude to getting home and to his shed in the garden where he did his best thinking and writing. Much did flow from his pen.
His scholarly output at Bristol was astonishing, the more so for its wide range of subject. Top quality journals featured pieces from him on tax, statutory interpretation, injunctions, assessment of damages, the royal prerogative, comparative law, the nature of legal scholarship and Public law values in the House of Lords. He even ventured into a popular exposition of motoring law. But his focus on human rights was growing. His first monograph, on the Law relating to Search and Seizure remains a classic, used by Counsel, Madam Chancellor, in the courts of all common law countries and often cited, sometimes with approval. His second, on Criminal Confiscation Orders was widely used by the police. His most impressive achievement remains his massive Civil Liberties and Human Rights in England and Wales. This work is accessible to students but its depth and insight have helped shape the development of the law itself. It is widely cited in all the academic literature and court judgements and continues in use today in the latest edition.
With such a prodigious output over a 16 year period, any sensible University would have awarded David the Personal Chair he so richly deserved. We would certainly do so today. But 20 years ago, this University looked not just to merit but also to quotas. The University of Birmingham had no such qualms and in 1992 David was appointed to the Barber Professor of Jurisprudence. His 10 years at that institution were marked by both considerable commitment to leadership with 8 years as either Dean or Deputy Dean (the only comment that I could draw from him about that time was the two words “Challenging People”, which one can interpret in a number of ways). However, his output of over 30 articles and monographs continued in the same high quality. He developed a view of privacy which stresses its value in facilitating intimate and collaborative social activity rather than merely an aspect of individualism. He ventured into critiques of the US Constitution, and, of course, he was analysing the Human Rights Act pre-emptively, publishing his views on remedies before it came into force. A particularly valued contribution was a two part article on Human Dignity as a legal value – David observes that it is sometimes described as seminal, but less often read.
It was David’s wife Jill, who we welcome today with his family, who drew David’s attention to the public advertisement for the post of Legal Adviser to the Joint Select Committee on Human Rights in the Houses of Parliament. For five years he had what he describes as a wonderful and extraordinary experience which he can only liken to Hogwarts! With typical Parliamentary delays, he had plenty of time to start preparing the briefing papers and giving seminars but was soon telling the MPs and Peers what they had to do, giving detailed advice on Bills, authoring the paper attached to each piece of proposed legislation, drafting letters for Minsters and working alongside key figures from all parties and in both Houses. And he still made time to write. Of course, there were definitive articles on the impact of human rights on the legislative process but his focus was shifting to Human Rights in International Law. Publications in the USA and Australia witnessed the start of one of his primary research interests – the relationship between International Law and national constitutions. So it was perhaps not surprising that in 2002 he got a message that ‘the President wants a word’. The President in question was Wilharber, the President of the European Court of Human Rights. And so began his judicial career.
He was appointed in 2002 as one of the three international judges of the Constitutional Court of Bosnia under the Dayton Agreement, a post that was expected to last for no more than two years. The court is still there and David served until 2011, with a term as Vice President for three years. David now had a constitution of his own to play with. But the reality was rather more serious. Not only did it take seven months to get the Serb Judges to agree to accept the Rule of Law but there was always a highly delicate political situation to take into account. The Court was operating an English language constitution imposed by the international community after a bloody war involving three ethnic groups. Much of the population did not accept the overarching state yet the Court had to resolve dispute between the cantons and state entities, provide an appellate jurisdiction for all three parts and deal with constitutional challenges to legislation. The pressure was intense, spurious allegations were made for political reasons and some were always trying to weaken the court’s authority. The national judges were often unwilling to take the necessary decisions. The Court’s survival, and contribution to the development of peace, is remarkable and David must take considerable credit for his role. It changed the way he viewed constitutions and the role and authority of courts. Law did not decide cases. Judges did, in the light of the realities of the situation but by reference to appropriate legal norms. Getting it wrong might have sparked fresh violence but constitutional litigation was a perfectly acceptable substitute for war.
In the meantime, his academic career continued to flourish. Leaving his Parliamentary role, David was appointed a Fellow of Downing College Cambridge in 2003 and The Rouse Ball Professor of English Law in 2004. His judicial duties in Bosnia did not prevent him continuing to make a massive academic contribution, as a teacher and as Chairman for three years of the Faculty of Law. There is a stream of further scholarly publications, over 80 since the turn of the century. One could focus on English Public Law for the Clarendon English Law series, or his significant later views on aspects of the UK’s Human Rights Act. Perhaps, it is his work on constitutions that is most significant. There are new perspectives on the constitution of the UK, a theory of constitutionalism drawing on his experience in Bosnia and an analysis of the contrasting responsibilities of the UN Security Council and municipal courts in protecting international peace and security. He has been at the forefront of the challenge to those theorists who assume that US style constitutionalism is the only sort there is.
Madam Chancellor, I do not have the space to refer to the conferences David has organised, the public lectures he has given including those for the judiciary and others, or the pride he takes is his many successful students. He is one of those academics who has relished the freedom academe has provided (even though his mother always wondered when he would get a proper job) and used his time to work very hard at matters that to him seemed worthwhile. He has never aligned himself with any school of legal scholarship nor ploughed a narrow furrow. He been at the forefront of making civil liberties and human rights respectable academic subjects and then contributed substantially to the establishment of those rights and securing cherished freedoms both in this country and abroad.
Madam Chancellor, David has been recognised for his distinguished career with a Fellowship of the British Academy in 2006, and an honorary QC in 2008. I now present to you Professor David John Feldman as eminently worthy of the award of the degree of Doctor of Laws, honoris causa.