Crossing Between Two Worlds
Birke Häcker, Professorial Fellow in Law at BNC and Linklaters Professor of Comparative Law, explains how she discovered the beauty of comparative law
Interview by Olivia Gordon, Oxford Today
Professor Birke Häcker’s fascination with comparative law developed naturally from her personal academic journey, which has seen her repeatedly crisscross between two countries – Germany and England. ‘Different areas of the law attract different types of people – and comparative law attracts people who enjoy living between different worlds,’ she says.
After finishing secondary school in Germany, Prof. Häcker thought it would be ‘an adventure’ to apply to Oxford, and won a place to read Law at Brasenose. As part of this, she spent an Erasmus year at Bonn University, studying German law. Today, she reflects, ‘the two degrees were very different, but I enjoyed them both tremendously.’
Having graduated from Brasenose, she returned to Bonn to complete her German law degree. She had meanwhile been elected to an Examination Fellowship at All Souls, Oxford, where she subsequently wrote her doctorate exploring the structure of English and German contract, property, and unjust enrichment law. After another year teaching at Oxford, she crossed back to Munich to qualify as a German practising lawyer, and then became a Senior Research Fellow at the Max Planck Institute for Tax Law and Public Finance. In September 2016, she took up her current position at Brasenose – ‘I love this place,’ she says. ‘Oxford is, as my daughter once very aptly put it, a beautiful museum that one works in. It is an intellectually vibrant environment unsurpassed by anywhere else I can think of.’
Häcker – who lives in Oxford with her husband and daughter and now feels essentially as much English as German – has delved deeply into both English and German law, and explored the relationships and differences between them. ‘They’re each challenging and elegant in their own way,’ she feels. ‘A case can be solved by a very different route under each system’s rules – and in the back of your mind it’s always useful to ask what the other legal system would make of it; how it would approach the case. It’s not unlike running a mathematical formula.’
Häcker has become, she says, ‘a sort of translator’ who can explain to English or German lawyers in their own technical language how the other system works. So how do the laws of both countries compare? ‘In one sense they’re not that far apart, but in another sense they’re worlds apart,’ she says. The historical roots of both legal systems are unique. The main characteristic that strikes a layperson, she says, is that German law is a codified civilian system. Germany codified private law at the end of the 19th century, later than many other countries on the continent. It absorbed into its civil code many rules and principles of Roman origin as well as elements of Germanic customary law. English law, by contrast, is an uncodified common law system, which evolves primarily through cases. ‘But of course, in reality, there is a lot of statute law in common law countries and a lot of important case law in continental systems,’ stresses Häcker.
Prof. Häcker sees Oxford as an ideal ‘comparative law hub’ where continental civil lawyers and common lawyers from all over the world can meet and exchange ideas. She explains: ‘English law has the potential of being a true catalyst or bridge between the civilian and the common law tradition. It is on the one hand the historical “mother legal order” of all common law systems worldwide, but on the other hand it also provides a gateway into – and from – Europe.’
With Brexit on the horizon, Prof. Häcker reflects, ‘I don’t think anyone is able to see the full extent of the legal disentangling that will be required or how it can be achieved.’ She adds: ‘I do hope Brexit doesn’t lead to the dialogue between English common and continental civil lawyers dying down. It’s vital that this dialogue be maintained.’ One country’s legal culture can bring new inspiration to another’s, thinks Prof. Häcker: ‘Very often, comparative law can make us develop better rules.’
A big topic which has caught her interest in recent years is different countries’ succession law – the way someone’s estate is dealt with after death. ‘It’s a hugely important area of law and really challenging,’ she says, ‘but almost no English universities offer it as a course option – including Oxford. It’s one of those neglected subjects that’s somehow not deemed popular, despite its many interesting features.’ One of her missions is to bring this topic to the academic agenda at Oxford, linking it with legal practice.
‘Law allows you to understand the world in ways which are social rather than physical,’ Prof. Häcker says. ‘A physicist might look at the world and wonder why an apple drops to the ground; the law allows you to analyse what’s going on in a different way – it defines relationships between people and objects, and it creates intangible things and institutions all of us take for granted: patents, for instance, or corporate bodies like companies.
‘I’m fascinated by the beauty of such legal ordering of the world. Unlike physics, the law does not seek to uncover universal truths, but its contribution to human life is no less fundamental.’