John in 2005 as he is celebrated for having taught Law at Pembroke College for 40 years.
John Eekelaar
Rhodesia & University 1962
Born in Johannesburg in 1942, John Eekelaar studied at King’s College London before going to Oxford to take his BCL (Bachelor of Civil Law) degree. After completing his time as a Rhodes Scholar, he was awarded the Vinerian Scholarship, and was then called to the Bar in 1968 at the Inner Temple. In 1965, he was elected to a Tutorial Fellowship at Pembroke College, Oxford, which he held alongside a CUF Lectureship at Oxford from 1966-1991 and a Readership in Law until 2005. Eekelaar retired from teaching in 2005 and went on to serve as Academic Director at Pembroke until 2009. He was elected a Fellow of the British Academy in 2001 and Distinguished Visiting Fellow by the New Zealand Law Foundation in 2005. In 2019, he was elected a Fellow of King’s College London. Eekelaar has published widely in the areas of family law, jurisprudence and human rights, and was the founding co-editor of the International Journal of Law, Policy and the Family and editor of the Oxford Journal of Legal Studies. He was a Founding Member of the International Society of Family Law, serving as its President from 1985-88. This narrative is excerpted from an interview with the Rhodes Trust on 9 July 2024.
‘My father was very Anglophile’
My father had been born in Amsterdam. He had come out to Africa in the 1930s with a Dutch shipping line, and he met my mother in Portuguese East Africa, as it then was. When war broke out, he wanted to return to the Netherlands, but because it had been invaded, he couldn’t go back. So, he decided to go to England, to join the Dutch resistance, but my mother didn’t like that idea. The story goes that he was on the train to go to Cape Town to catch the boat, and, as the train was leaving the platform, she ran after him, saying, ‘I will marry you if you stay.’
So, he stayed and joined the South African army. We spent the first eight years of my life in Johannesburg, but my father wasn’t very happy with the South African situation after an Afrikaans nationalist government was elected. He was very Anglophile, and as the nearest sort of English place was then Southern Rhodesia, we moved up there when I was nine. He worked as an accountant, employed by a firm of distillers that made gin and whiskey. We lived in the countryside at first, and later moved to the capital, then called Salisbury, and we were very happy there. That’s where I had my schooldays. Incidentally, it was also where I met Pia, who was later to become my wife.
On applying for the Rhodes Scholarship
I did okay at school, and the plan was that I would go to university in Cape Town, because my father wanted me to study commercial stuff. But my teacher said, ‘No, you should really go to England.’ They suggested I apply to Oxford, to Balliol College, and I did, but I got rejected. I have to say that a classmate of mine with a considerably less good academic record, but linked to an aristocratic family, did get an offer from another college in Oxford, so my view of Oxford wasn’t terribly high at that time!
I applied to King’s London and was accepted, and I came over to England in 1960. It was a very good experience. I was lucky enough to get a place in a hall of residence, and I made some extremely good friends who stayed in touch with me for the rest of my life. My closest friend was West Indian, from Trinidad, and we shared a love of classical music. He taught me so much about life. The important thing about King’s from the point of view of my career in law is that we had intercollegiate lectures, and some of them, at the LSE, were given by Otto Kahn Freund. He was a refugee from Germany, because he was Jewish, and he also sat in a labour court and made some findings against the Nazis, so he had to get out. His lectures were completely inspiring.
I was thinking I ought to do a graduate degree, and the BCL in Oxford looked good. Then, Otto Kahn Freund got the professorship in comparative law there, so I thought, ‘Well, why not?’ and I applied for the Rhodes. I had also been pretty involved with the crisis that was going on in Rhodesia at that time, after the relatively (for that time) liberal government was succeeded by the right-wing Rhodesian Front, that basically wanted to follow the South African apartheid path. I think that’s what gave me my interest in public and constitutional law.
‘It was not something I was used to’
So, I went to Oxford, and that was wonderful. I had so many good friends among the graduate students there. At that time, there wasn’t much sense of a community of Rhodes Scholars. We did try to have a monthly gathering at Rhodes House where we would get a crate of beer and meet and talk, but it didn’t last.
At that point, I hadn’t developed any kind of interest in family law, but then, Otto Kahn Freund put on a course on the subject of comparative family law. I went along, and I was the only student. I’d go to his room, and we’d have tea and discuss my essays. So, that got me into family law. I was also interested in legal theory, and this was the time of all the big names: H.L.A. Hart, Joseph Raz, John Finnis.
Oxford’s whole social life then was structured around what was almost a monastic lifestyle in the men’s colleges. Women were excluded from so much of academic life. It was not something I was used to, and it was pretty appalling. I got very involved in the campaigns to open Oxford up more to women, and the whole question of rights was one that really began to interest me.
'One of my academic interests is in power and how you restrain it’
I had always intended to go back to Rhodesia. I thought, ‘I must go and give back to my country.’ But then, the position of law tutor came up at Pembroke, and I applied for it and was successful. I started there in October 1965, and in November, the Rhodesian government gave a unilateral declaration of independence, and I thought, ‘Well, can I go back?’ I chewed it over for a long time. I did go back to visit, and I met the dean of the law school there, but I knew that if I was disagreeing with the government and trying to teach students, that wouldn’t work. The country was heading towards civil war, so I decided I couldn’t go back. I did give a lecture there, because I’d become very interested in what I called the principles of revolutionary legality, namely, what the courts could or couldn’t do in the face of a revolutionary government, and by what principles they could continue to act. There had been a lot written about this question of principles, famously by Ronald Dworkin (Rhodes Island & Magdalen 1953). Well, when I gave my lecture, some of the judges were there, but they didn’t seem too hot on what I was saying. There I was, only 27 and coming from Oxford, telling them they were doing it wrong.
One of my academic interests is in power and how you restrain it….. the whole point of law is to restrain power. That is what law is for. I mean, people in power can use law to get their way, and so on, but they can also use other means, and they often don’t care, you know. But the only way you can really restrain power other than going into the streets and fighting them, you know, is the law, and legal rights. And that’s the whole point about rights, in my view-, and it’s not just women.
Women, minorities, and various people. It’s rights. It’s been argued quite a lot. It’s quite a complex area, of course, but rights, legal rights particularly, and then, of course, now, in the modern age, human rights. What are human rights for? They are there to protect you against these people who have power, always. That’s what it’s for and that’s why it’s so important.
It’s complicated, of course, but it comes in part from my early experience in Rhodesia. It applies in family law too, because the family structure was designed to promote certain social structures for those in power, especially men, exercising power over women and children in particular. and rights, and the rest of it. So, I’ve kept that.
I have this idea that family law has gone through, sort of, three phases: instrumentalism, welfarism, and at the moment, the era of rights. Because you look at early family law, and so on, the whole family law structure was designed to promote certain social structures for those in power. You know, the power of, particularly men over women, that was a very important part of-, parents, particularly men, well, mostly men, over children. I mean, children were seen as largely, sort of-, they would go out and work for the family, and support-, the church had a part in that as well, set up these structures which supported them.
So, family relations were just instruments for the furtherance of power of those in power, who were guys, basically. But then it changed, in the nineteenth century, to a rhetoric of welfare. They said, ‘Well, no, we’re going to tell you what to do, but it’s not really just to keep the structure, it’s for your own good. You know, it’s not just for our good, it’s actually for your good.’ And in some cases, probably it was, but of course, it’s very easy to say. When it’s really not. So, there was a lot of that. And so, there was a lot of, you know, removing children from home, and there was a famous-, you know, exporting children to Australia and Canada, took them away from home and said it was for their own welfare.
There’s a lot of it in this book of mine, Family Law and Personal Life. A lot of that is summarised in this. It covers history, but there’s a lot of modern stuff too. I’ve looked at certain values, and you can see, the chapter headings are not what you’d, sort of, normally find in-, ‘Power,’ the first chapter is all about that. ‘Rights.’ ‘Respect,’ what is respect? How does that play out in family law? ‘Friendship,’ how that’s important. ‘Responsibility.’ ‘Truth.’ And issues of community, community against individualism, and so on. I know I seem a bit of an individualist, but I mean, community has got great value. I never did deny that – great values – but it also can be very dangerous, because community interests can override individual interests.
There’s a thing called the capability approach, which was developed by an American philosopher and a very well-known Indian economist, Amartya Sen. …. he was very famous as an economist, but also as a philosopher. I’ve drawn a lot on his stuff as well.
I’ve talked about the theoretical, the philosophical, and so on, but there is another side, which is the practical, and that is why in the 1970s, I joined something called the Centre for Socio-Legal Studies. You’ve got to find out what actually goes on, you know, and that’s what the centre did, and, you know, there were sociologists and economists. I mean, there were other lawyers, but, you know, mixed with them. And that’s when it started, the whole question of empirical research, and so on, to find out what actually happened. I started off, I worked with somebody called Robert Dingwall, who was a medical sociologist, really. That was his origin. And we got interested in child protection, We did a lot on that, and wrote a really quite well known book called The Protection of Children, which got into various editions, and so on.
And then, I got involved with the civil side. I teamed up with another person there, who had been there- called Mavis MacLean, and, well, Mavis and I have written, I don’t know, seven books? I don’t know. I’ve lost count.
We made a very good team. We subsequently left the centre and set up our own little unit in the social work department in the university. Mavis had very good contacts in the Ministry of Justice. She would go along and say, ‘Well, I went to find out what solicitors are doing. Let’s just go and just sit in their office while they see clients, and I’ll take notes,’ and so on. And she did that. I did some as well, but Mavis did most of it, and we also had research assistants who went round, and we were looking at that, and she got involved. So, ‘What do barristers do? Well, let’s go and talk to them, and watch them in court. So, we wrote this book, on family advocacy. We wrote one, also, on solicitors, family lawyers,
Then we did one about mediators, and watching mediation, and how that works, and how mediators work, and so, we wrote quite a significant work. Then we did one about judges.
We found that they had very little time doing judging. They were mostly just advising the parties what to do, and so on, and so there were all those things.
And then we did a thing about marriage, and we went and asked people, ‘Why do you marry? Why did you get married, not just live together? Why?’ And the reasons were very, very, very interesting. You know, I mean, we classified them into different sorts of reasons. You know, conventional reasons: ‘Oh, well that’s what the rules are. That’s what I should do.’ Another one was, ‘Oh, of course, we wanted children.’ …. whatever they gave, and we classified all those reasons. I loved that research, why people marry. And then another one was, ‘If you’re married, what do you think your obligations are, and why, to the other party?’ We did a whole paper on that.
The latest one we’ve done, which Mavis has still used a lot-, I mean, she goes to her meetings after the act, because in 2012-, I’m forgetting the dates of these. It was called the Legal Aid and Sentencing and Punishment of Offenders Act ..it was the one which cut legal aid from family law almost completely. Our big argument always was, what you really need is early advice, early legal advice, and then there’s the whole question of who should give the advice. Only lawyers? Do mediators give advice? No, they’re not supposed to. They’re supposed only to give information, but the dividing line between information and advice is very difficult.
What we were really trying to argue was that legal aid must be there for early legal advice, either by a lawyer-, doesn’t have to be a lawyer. It could be a properly trained mediator, we tended to say. The lawyers weren’t so happy with that. You know, but there must be early advice, because the whole thing, it was, just gone, which caused chaos, because there wasn’t legal aid, and they didn’t get any legal advice at all. So, we wrote this book called After the Act, which Mavis said just has done the rounds. I mean, they’re still using it. She says, ‘….they came to the meetings with it’. And now, even the last government-, probably the present government that’s come in-, they’ve started certain centres and hubs where you can get that. It’s not brilliant, but it’s better, so they’re moving in that direction. -, anyway, that’s the other side of my work, is the practical.
I gave you the memoir, but it came from that festschrift of mine. Did I mention that? About two years ago, they produced that and gave it to me. I’ve never seen such a fat book in my life. There are about 70 contributors.
I probably should add another dimension to this-, you know, to the time when I was doing that. I was also involved very much with international stuff.
Because I was a founder member of something called the International Society of Family Law. And did a lot with that. I was its general secretary for quite a long time, and then its president. So, I’ve been to lots of conferences, organised conference papers, gave papers. You know, so, I don’t know how many. I think I mentioned it in the memoir, somewhere. I’ve been to about 13 conferences in different parts of the world. So, the international side has been another one.
And then, of course, teaching my lovely students.
I think, well, with the students, you know, I got on very well, pretty well. There was this very good relationship. We always used to, you know, invite them back here for dinner, and so on.
‘Always start with the arguments contrary to yours’
It’s difficult to give advice to today’s Rhodes Scholars without resorting to platitudes. But there is something I would offer that draws on my own approach and what I’ve done in teaching over the years. The world seems to be getting more fractious, and a lot of debates simply involve dismissing the views held by the other side. I would say, always start by thinking first of the arguments that have been made contrary to yours. Look at them, see what’s good about them, because there is almost always something within them that is reasonable, something you can accept. Looking at the opposing arguments in that way might actually alter your position.