Richard Ekins
What were your first steps into being an academic lawyer?
As an undergraduate at the University of Auckland, I contemplated a career as a Crown prosecutor or government lawyer. Before coming to Oxford to read for the Bachelor of Civil Law, I worked for two years as a Judge’s Clerk at the High Court in Auckland. This was a great job for the future academic lawyer, offering interesting legal problems to tackle and an insight into how judges reason. During those years, I also taught jurisprudence part-time, wrote an undergraduate dissertation on recent challenges to parliamentary sovereignty, and published my first articles.
I was fortunate enough to be able to take up a part-time lectureship at The University of Auckland early on in my graduate studies in Oxford, giving lectures on jurisprudence in Auckland for six weeks each year, and continuing to publish a range of articles.
What is your research about?
My research addresses the nature of lawmaking, legal reasoning, and the ways in which constitutional law and practice help a free people to govern itself over time. I work in the classical natural law tradition, which means I strive to identify and think through good reasons for action. I take moral reflection to be central to legal theory and think that there are very good moral reasons for positive law and authoritative lawmaking.
Much of my research has considered how a modern legislative assembly, with hundreds of members who disagree with one another, is capable of forming and acting on intentions. This has led me to work in the philosophy of language – stressing the centrality of intention to rational language use – and the philosophy of social action – studying joint action and group agency.
I also have an ongoing interest in the idea of self-government: what are the moral, political and social conditions for a people jointly to secure their common good? How do institutions contribute to this end? This research extends to the relationship between rights and legislation and to the moral significance of citizenship. I also aim to think through the implications that self-government may have for how states relate to international law or to supra-national institutions.
What are some of the most important claims you have argued for?
Much of my work responds to philosophical and juridical scepticism about legislative intent. I argue that legislative intent is an intelligible idea, and one which is central to the idea of having a legislature, recognising legislative acts, and interpreting laws. More specifically, I have argued that the central case of the legislature is an assembly that is structured to reason and act as a rational agent, acting on intentions which are expressed in the law. The statute that a legislature enacts is the legislature’s reasoned choice, not a sentence which we are free to interpret however we choose.
I have also thought about the implications of a sound understanding of legislative action for the doctrine of proportionality and the nature of rights. I argue, with other colleagues, that rights are best realised not by way of human rights law but by way of ordinary legislation – hence, legislated rights. Respect for human rights does not entail, I contend, enthusiasm for human rights law.
More generally, I have written about what is it to be a free people and how representative institutions make it possible for a people to exercise self-rule. I am sceptical about judicial review of legislation, especially when it is unmoored from some specific act of constitution-making which is itself open to revision over time. I have argued that such unmoored judicial review, which many scholars laud, falls afoul of fundamental democratic principle.
What do you find most exciting about your research?
It is a privilege to work on problems that are philosophically complex and which intersect with questions of lasting public importance. I find it exciting to attempt to elucidate practices, institutions, and ideas that are otherwise thought to be mysterious or empty. The study of group action has this character, as does the study of legislative action.
What are some big trends in Jurisprudence these days and how do you feel about them?
There has for some years now been a methodological turn in jurisprudence, with renewed interest in how one uncovers and articulates a general theory of law. I think jurisprudence is better for having engaged in detail with the methodological problem.
The rising interest in social ontology amongst legal philosophers is also important. This shows up in an interest in how joint action creates a new social reality that is somehow constitutive of law. I think this is a welcome development– we should draw on the insights of the philosophy of social action to explain the practices and institutions that characterise law in particular. That said, this work needs to carefully consider specific legally-relevant groups – the legislature, the people, courts, judiciary, and executive and intermediary non-state groups – and how they might differ.
Another important trend concerns ongoing argument about the nature of rights and the doctrine of proportionality. Judicial practice in many jurisdictions is dominated by a view of rights to which proportionality is central. Much recent scholarship looks for other ways to understand rights and rights adjudication. I think this trend has highlighted some major problems in human rights law.
Political philosophy is increasingly interested in questions concerning membership, which embraces citizenship, migration, and the special position of refugees. This should be of interest to jurisprudence, I think, as the nature of the political community matters hugely demarcating legal systems and explaining on whose behalf institutions act and should act. These questions also bear on the foundations of important legal powers, including the state’s prerogative to expel non-citizens.
What would you like to see change in academia (at large or your field of research)?
For many years, I thought that those of us in British academia were privileged in that our scholarly activity was not nested within a wider culture war. But right now I fear that the UK academy at large is becoming ever more aware of, and keen to emphasise and maintain, its political and cultural distance from, and distaste for, the wider political community. This does not bode well for the future of the academy or the community.
It is important, I suggest, that universities are intellectually diverse and open to new ideas and perspectives. There are reasons to be concerned about the rise of group-think within the academy. There is a rising intolerance of intellectual difference. The spirit of our age seems to me a vengeful one and academia is increasingly subject to this vice. I would like to see a renewed concern to cultivate the virtues of intellectual humility and curiosity, collegiality, and sympathy for others, academic and non-academic alike.
What are some of your non-academic interests, pursuits, or hobbies?
I have a young family who keep me entertained and exhausted in good measure. When time permits, I enjoy walking, swimming, reading for pleasure, and board-games.
If you had to pick a desert island book (academic or not), music album, or film, which one would it be?
I assume, per the BBC R4 convention, that one is already entitled to take the Bible and the complete works of Shakespeare. If that is the case, then I would probably choose the Vorkosigan Saga, by Lois McMaster Bujold, or the Long War series, by Christian Cameron.
This interview was conducted in April 2019 by Carolina Flores (St. Hugh's, MMathPhil, 2016) who is a philosopher working in epistemology and social philosophy.