Patrick Capps is Professor of International Law at the University of Bristol.
At the time of her death, Amanda Perreau-Saussine Ezcurra (right) held the posts of Fellow of Queens’ College, and University Lecturer in Law, at the University of Cambridge. She wrote and taught jurisprudence, public international law and public law. She lost her battle with cancer on 1 August 2012, aged 41. I have been asked by Iain, Marko and Dapo to write something about her life and career. While able to count Amanda as a good friend and colleague, I will restrict this comment to a consideration of her written contribution to legal scholarship. I will not comment on Amanda’s life or faith, except to note that she was a devout Catholic. Amanda may have approved: in an essay in the 2006 University of Toronto Law Journal, while reflecting upon Nicola Lacey’s biography of HLA Hart, she wrote that she was sceptical about the relevance of the subject’s personal beliefs when writing intellectual biography. While she may well be correct to take such a view about Hart, I am not convinced that it can equally be applied to the relationship between her faith and work. But this said, I do not feel qualified to judge either way.
As mentioned, Amanda’s published work is in the areas of jurisprudence, public international law and public law.
Regarding public law, her focus was on British foreign relations law. Her main publication in this area was a long essay in the 2007 British Yearbook of International Law entitled ‘British Acts of State in English Courts’. This is a brilliant and vibrant piece of work: acute historical detail is combined with both a real depth of knowledge of scholastic and humanist philosophy, and a clear-eyed understanding of English constitutional law. She also wrote a number of notes which commented on the English cases decided in this area: ‘The Shades of Grey in the Rule of International Law’ (on CND, in 2003); ‘A Tale of Two Supremacies, Four Greengrocers, A Fishmonger, and the Seeds of a Constitutional Court’ (on Thoburn, in 2002); and, ‘Pyrrhic Public Law: Bancoult and the Sources, Status and Content of Common Law Limitations on Prerogative Power’ (in 2009, with Mark Elliott, on the House of Lords’ judgment in Bancoult). In this essay and these notes, she attempted to discern various ‘grey’ areas in British politics: that is, places where it was unclear whether the Government was subject to the rule of law. By re-interpreting the cases she sought to remove these ‘grey’ areas and show that there were clear legal constraints on the executive in foreign affairs.
As a philosopher of international law, she was interested in the nature of customary international law. In 2007 she edited a collection of essays with James Bernard Murphy of Dartmouth College, written by a stellar cast of philosophers, historians and international lawyers, entitled The Nature of Customary Law. She also wrote a number of essays on the works of the leading British international lawyers of the nineteenth and early twentieth century (amongst others, Oppenheim, Lauterpacht, Phillimore, Westlake, Holland, Pollock, Hall and Brierly), as well as a paper on Kant (in The Philosophy of International Law, edited by John Tasioulas and Samantha Besson in 2010). Amanda was not a Kantian, and I know she found this essay quite a challenge. The view she presented in this paper is, in part, that Kant’s law of nations takes the form of equitable rules. This conclusion is not one that mainstream Kant scholars have come to and I, for one, am sceptical about her view. The paper, however, is unsettling rather than eccentric: Kant scholars must face the possibility that they have missed something important about Kant’s law of nations.
Amanda’s jurisprudence underpins all of the above. Much of what she wrote on jurisprudence is a criticism of the work of others. For example, she published a long essay entitled ‘Bentham and the Boot-Strappers of Jurisprudence’ in 2004 which was intended as the first of three essays on legal positivism. The second essay was to be entitled ‘Hart and the Noble Liars’ and the third, ‘Raz and the Torch-bearers of Jurisprudence’ but neither were published. Before she fell ill she was working hard on Old Questions for New Natural Lawyers which was to be published by Princeton University Press. As far as I can gather, in this book she was to defend a form of scholastic natural law theory. My impression is that this book would have been closer to Augustine (in his later realist phase) than Aquinas. To explain, Augustine’s realist natural law does not restrict the concept of law to that which would govern a perfect society. Instead, his position was that human law is a framework within which the worst forms of immoral conduct can be restrained, and in which individual virtue and the common good can still flourish. This, perhaps, reflected Amanda’s view. Consider, for example, her description of natural law theory in her essay on Bentham:
…natural lawyers argue that an unjust law, as unjust, is not a straightforward or central case of law, not a real law but only law in a secondary sense: disobedience of unjust laws is sometimes morally justified, although legal obligation entails a defeasible moral obligation as there is a moral cost in deviation from standards of legality….[N]atural lawyers argue that there is a qualified moral reason to obey every law, even an unjust law, in so far as disobeying that law would undermine the common good by threatening respect for the parts of the legal system that do offer a reasonably just system of coordination…..[N]atural lawyers argue that grotesquely unjust laws ought never to be obeyed. (at 353)
Her view, it seems, was that some concept of legality in a perfect or ideal sense should not be an enemy of a generally good
– or reasonable, or just – legal system. This position is also to be found in her writing, mentioned above, on the British act of state doctrine. Amanda’s general argument was for a version of the act of state doctrine which did not put the actions of the Crown in foreign affairs in a province beyond the rule of law. Rather, acts of the Crown in foreign affairs are justiciable, and thus it is possible for a court to declare such acts ultra vires in cases of serious injustice. However, she accepted that a good deal of discretion should be afforded to the Crown in such matters. Again, however, judges should certainly do what is just, but still more rather they should respect the separation of powers articulated within a reasonably just form of social coordination.
As it happens, the conversations I had with Amanda tended to be more about matters such as our children, university life, and our reading habits than her research.
This said, it was apparent that Amanda was a scholar of formidable intellect, imagination and flair. It seems likely that she would have gone on to become one of the leading legal philosophers of her generation. In the modern university, it is easy to get distracted with petty politics and the daily bureaucratic grind. Amanda’s collegiality, friendship and writings were a constant reminder of the more perennial and energising aspects of academic life. The seriousness of her scholarship, her sense of wonder and her intellectual excitement were, and remain, deeply inspirational to those who knew her.
Amanda’s final years were overshadowed by the sudden death of her husband, Emile. She leaves behind her two children, Elizabeth and Martin, and her second husband Carlos Ezcurra.