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In Memoriam: Professor Patrick McAuslan MBE

The University is saddened to report the death of Professor Patrick McAuslan who passed away on Saturday 11 January 2014. Here Professor John McEldowney records his unique legacy.

mcauslanPatrick McAuslan graduated from Oxford University obtaining a double first BA and BCL degree in 1961. He was a founder member of the Law School at Dar es Salaam between 1961-1966 before joining the University of Warwick in 1968. During his time at Warwick he was Professor and Head of Department and pioneered teaching in Planning Law and Environmental Law as well as Land Law and Public Law. His African experience convinced him of the need for high level programmes for legal scholars and practitioners in developing countries and he was a key player in the development of the law school’s innovative post-graduate programme in Law in Development which challenged existing orthodoxies. All these were major contributions to the development of Warwick’s renowned Law in Context approach. In 1986 he moved to the London School of Economics as a Law Professor and in 1992 joined University College as Professor of Urban Management and retired in 1999. He has held a part-time professorial appointment at Birkbeck College since 1993.

In 2001 Patrick was awarded an MBE for services to African land use and environment. He is the author of many books, articles and papers in his field of study. His most recent publication is Land Law Reform in East Africa: Traditional or Transformative? (Routledge, 2013). This book explores the much promised land reforms of the 1990s in East Africa that failed to materialise in many countries despite the optimism of the reformers. It is a sign of the deeply depressing state of land reform that led Patrick to conclude that incremental reforms have limited hope of success. Patrick was highly committed to East Africa, particularly Tanzania. He worked for several years in Kenya for the UNEP and wrote many papers and policy documents. Land reform was a subject near to his heart and he extended his commitment beyond East Africa to Afghanistan in recent years.

Patrick was also an enthusiastic teacher and motivated successive generations of students with his erudition, intellectual rigour, depth of knowledge and dedication. His propensity for hard work and his stamina was well known putting many of his colleagues to shame. His commitment to social
justice and fairness was an inspiration for current and future generations. His publication list included many papers that explored links between law, society and social justice."

Studying the UK’s constitution in the 1980s raised fundamental questions about holding democratically elected executive government to account. Setting limits on the powers of democratic government through the protection of fundamental rights, adherence to the rule of law and effective forms of parliamentary accountability are laudable aims. Associated with democratic constitutionalism are legitimacy perspectives used by McAuslan in the 1980s to provide a nuanced and valuable means of assessing the ethics and values supporting the law as a means of evaluating constitutional accountability in contemporary public law. Emphasising the role of public participation in the ideologies of the planning system provided a means for professionals, planners, lawyers and administrators to be responsive to citizens’ voices.

Democratic constitutionalism is much in vogue today, and favours open discussion about the values of public ethics and the merits of decision-making. This has importance in taking account of the economic and social discussion of the state’s responsibilities. It is supported by principles of administrative justice, the influence of the Human Rights Act 1998, and the expectation of high ethical standards underpinning effective Parliamentary accountability. Values and ethics are fundamental requirements in debating democratic constitutionalism today and discussing administrative justice. Patrick McAuslan’s writing in the 1980s on legitimacy and public participation remain valuable contributions to this debate. His public law interests explored the boundaries between law and other disciplines. It was broadly defined by interests in urban panning law, the nature of the UK’s Constitution and the work of law reform in areas of land tenure and urban planning, which he demonstrated in the skilled art of law drafting particularly in East Africa. Above all else, McAulsan approached public law with the perspective and accuracy of a technical lawyer, skilled in the art of case law dissection and statutory interpretation. Few public lawyers, began their perspective from an expertise in land and property law though many were planning lawyers. Understanding and interpreting land law and property defined the boundaries of his interests in academic law but this extended to land law reform and law drafting in East Africa and provided his interest in societal problems rather than remaining within the confines of abstract or academic law. Undoubtedly this led to a questioning of basic assumptions and legal doctrines.

In the 1960s, in the United Kingdom, there was much academic dissatisfaction with what many saw as a narrowly defined legalistic approach to legal scholarship. The dissatisfaction resulted in a retreat from orthodox law teaching in favour of a broader approach to law teaching, legal scholarship and the curriculum. Legal education in the United States was influential. However, Patrick was one of those whose enthusiasm for a new contextual approach to research and teaching was developed in Africa. His innovative work with Public Law and Political Change in Kenya, published in 1970 pointed to new directions. A common methodology is evident- scientific, analytical and requiring comparative and critical evaluative study that transcended traditional divides between public and private and law and other disciplines.

In the fields of public law and also urban planning and land law broadening the scope of study was particularly challenging as the breadth of inquiry encompassed the role of political thought, the administrative state and its impact on the citizen. Finding the materials for the inquiry was only one challenge, locating a role for law amidst the plethora of discretionary decision-making another and more challenging enterprise. The broader inquiry involving law and other disciplines was influenced by similar debates about the role of law within the field of law and development. Questions were easy to pose but more difficult to find satisfactory answers or achieve a consensus among academics. Patrick never relaxed or tired in his efforts to provide answers and challenge received wisdom.

The great value placed on Patrick’s contribution to legal education, research and development was recognised in his award of an MBE but more significantly acclaimed by former students, colleagues, research and development collaborators world-wide on the occasion of the Birkbeck Conference on Law and development: Patrick McAuslan's Odyssey 1961-2011.

Patrick will be fondly remembered by many colleagues and students, family and friends. At the Birkbeck conference Patrick paid a moving tribute to his wife Dorrette and his daughter Fiona for their contribution and dedication to his work.