Obituary for Director emeritus Jürgen Basedow

(* 29.9.1949 † 6.4.2023)

June 12, 2023

Jürgen Basedow was born into a merchant family in Hamburg on September 29, 1949. His interest in transnational commercial law and business law was, as it were, instilled from his earliest days in the crib. He began studying law in Hamburg in 1969 and undertook numerous stays abroad – an endeavour relatively unusual in that era. By living and studying in Geneva, Pavia, the Hague, Paris, and at Harvard, he deepened his knowledge not only of foreign and international private law but also of the respective national languages, a skill which later led to an ability to playfully hop between German, English, French, and Italian at international conferences. During his first period at the Max Planck Institute for Comparative and International Private Law in Hamburg, from 1975 to 1987, he wrote his doctoral as well as his post-doctoral (habilitation) theses, alongside of which he authored a considerable number of other publications. Basedow served as professor first at the University of Augsburg, from 1987 to 1995, and then at the Free University of Berlin, from 1995 to 1997. Subsequently, he was appointed director at the Max Planck Institute. He filled this position for a full twenty years, remaining active at the Institute as director emeritus following his retirement in 2017. On April 6, 2023, he unexpectedly passed away in Hamburg.

His life’s work is astonishing and is evidence of immense strength, focus and efficiency, balanced neatly with an even composure and good humour. His achievements are too boundless to be appreciated fully and adequately in an obituary of just a few pages. Therefore, we will limit ourselves to highlighting certain accomplishments that illustrate his varied and prominent roles: as scholar, as policy maker, as teacher, and as formative member of the Max Planck Institute for Comparative and International Private Law.

Jürgen Basedow produced an enormous body of academic work. A list of his publications comprises fifty-six pages; he held roughly twenty lectures per year and travelled around the world to do so. His spectrum of inquiry knew few boundaries and ranged from international family law to global antitrust law, from transport law and insurance law to European consumer law, from international civil procedure to the unification of private law, from internal market law to comparative law.

His doctoral dissertation was devoted to international procedure in respect of family law, his post-doctoral thesis – which was inspired by his exposure to René Rodière and his teachings during his stay in Paris – to transport law. His LL.M. studies at Harvard led him to competition law, a subject to which he devoted himself intensively both academically and professionally during his time as a member and chairman of the Monopolies Commission (2000-2008) – testifying to this focus are monographs such as “Weltkartellrecht” [Global Antitrust Law] (1998) and the collection of essays “Mehr Freiheit wagen” [Risking More Freedom] (2002). The Europeanization of private law, which began in the 1980s, was another focus of interest throughout his life. In order to ensure an appropriate forum that fostered scholarly involvement and academic dissemination, he founded the Zeitschrift für Europäisches Privatrecht in 1993 together with Uwe Blaurock, Axel Flessner, Reiner Schulze, and Reinhard Zimmermann. In 2009, the “Handwörterbuch des Europäischen Privatrechts”, edited together with Klaus Hopt and Reinhard Zimmermann, was published; an English-language edition appeared in print two years later (“The Max Planck Encyclopedia of European Private Law”). A cumulation and synthesis of his research and theses on European private law can be found in the 2021 opus magnum “EU Private Law - Anatomy of a Growing Legal Order,” which has been reviewed in this issue by Maciej Szpunar. He also remained faithful to private international law and international civil procedure, although he clearly identified the limitations of these fields for the practical management of international transactions. His work in the field of PIL was crowned with his delivery of the 2012 General Course of the Hague Academy – the accompanying monograph was published in 2015 as “The Law of Open Societies - Private Ordering and Public Regulation in the Conflict of Laws” – and no less with the release of the four-volume “Encyclopedia of Private International Law”, of which he was a key initiator and co-editor.

The starting point of his reflections was always those questions and problems faced in the real world, issues which he first examined empirically. This approach was already apparent in his doctoral dissertation, where he conducted extensive legal research on the recognition of judgments in court practice, an examination that took into account more than 3,000 cases from the judicial administrations of the German federal states. Since reality does not stop at national borders or substantive boundaries, it was natural for him to adopt a transnational, comparative, and interdisciplinary perspective when embarking on the legal analysis that followed the laying of an empirical groundwork. The notion that one could find the solutions to every conceivable problem in a single legal system – even in one as elaborate as the German system – struck him as absurd. L'art pour l'art was not an approach to scholarship that he found worthy; he embraced instead an overall view and one committed to the formation of systems. Creativity and openness, in the choice of both research questions and methodology, characterize Jürgen Basedow’s work. He was convinced that there was no hallowed or single pathway to knowledge, especially in terms of comparative study. Real-world questions seemed far too diverse for such a conclusion. Rather, each research question required its own approach; the method had to follow the trail laid by the subject matter. “True acquisition of knowledge”, he writes, “cannot be expected from the circled wagons of adepts who promote a single method; we need methodological openness and freedom.”

The latter is also the most important leitmotif of his work: freedom. This is expressed particularly in the title of his anthology on deregulation, “Mehr Freiheit wagen” [Risking More Freedom] and in his General Course at the Hague Academy, the latter reflecting his understanding of private international law as the law of an open society. The free choice of law choice, its theoretical foundation, and extension of the principle to tort, property, inheritance, and family law are all central themes of the work; its treatment takes up half of the entire Hague Academy volume, which was published unabridged as a monograph in 2015. Increasingly, he felt such freedom to be under threat. In the closing remarks of the symposium volume authored on the occasion of his retirement (published in 2018), he fervently warned against bureaucratization, overregulation, and crippling restrictions on freedom, no matter how well-intentioned. He recalled that “knowledge about economic and societal problems first forms at the grassroots level and will only gradually, often at a much later date, penetrate the consciousness of public decision-makers” and that “only in spaces of freedom can individuals develop a sense of responsibility.”

A second leitmotif was the need for even greater European integration, whereby he attributed particular importance to the role of private actors in overcoming national borders and the role of private law as enabling law. Born in the Federal Republic of Germany’s founding year and raised in the post-war period, the European project, open borders, and enhanced prosperity as achieved through a dismantling of protectionism and trade barriers were endeavours dear to his heart. He never tired of defending the project of integration through legal unification, fending off laments fixed on the minutiae of Brussels legislation. And he found it no less important to understand the impact that European law had for the law of the Member States, whether in terms of substantive law or conflict-of-law rules.

A third leitmotif, one shaping not only his own field of research but also the academic enquiry he urged from his students was that “law develops at its borders.” It was precisely the confusion and sectoral nature of international legislation and European legal instruments – their constituting a patchwork of private and public law, of material law and conflicts law, of substantive law and procedural law – that he felt to be a task for the systematizing power of a scientific approach. The incongruity spurred an instinct of curiosity, not rejection. In many of his articles, he examined seemingly peripheral legislation or decisions and identified their connections to the core of private law.

In all that he wrote, Jürgen Basedow was the consummate craftsman who had no need to hide behind bureaucratic German or baroque verbiage. He formulated texts clearly and succinctly, whether in German, English, or French, always with elegance and humour. Of all the editors for the Zeitschrift für Europäisches Privatrecht, he wrote by far the most glosses, the frank and often needling comments identifying unsound reasoning or inconsistency. His final “Zu Guter Letzt” [Last but not least] can be found in issue 2/2023.

Given his interest in economic policy issues, his vast knowledge and wealth of ideas, and also his appreciation of law’s practical relevance, it is unsurprising that Jürgen Basedow’s commitment and advice were also sought by legal policy-makers.  Only in his late 30s, he already sat as a member of the Deregulation Commission set up by then Chancellor Helmut Kohl, where he drew up proposals designed to promote competition, for example, in the energy sector, in the transport industry, and in the telecommunications sector. Shortly thereafter, his interest in insurance law was awakened by Europe’s opening and deregulation of insurance markets, and this coupled with his identification of concrete cases that, in his view, called for greater consumer protection. His basic idea was that this peripheral area of law, one highly influenced by stakeholders, needed to be brought back into the fold of general contract law. When it came to drafting a new insurance contract law at the beginning of 2000, it was a matter of course that Jürgen Basedow was appointed to the expert committee charged with drafting legislative proposals. At the same time, he became a member of the Monopolies Commission, a body which he also chaired from 2004 to 2008 in what was an extremely time-consuming activity. The focus at the time was on transport and energy law, and several expert reports and opinions on corporate mergers were issued during his term of office. Notably, in this context as well, one in which he could exercise a direct influence on practice, he advocated the preservation of free competition.

For more than three decades, Jürgen Basedow was a member of the Deutscher Rat für Internationales Privatrecht (German Council for Private International Law), serving on both of their commissions – the one addressing personhood (Personenrecht) and the one addressing contract law and the law of obligations (Vermögensrecht). When the focus of legislation shifted increasingly towards European unification in the wake of the Treaty of Amsterdam, he contributed his expertise – whether within the framework of the Groupe européen de droit international privé or together with Institute researchers – providing detailed analyses and constructive criticism on proposed regulations. In the Académie internationale de droit comparé, he ushered in necessary reforms as Secretary General from 2006 to 2014. Not only a member of the Institut de Droit international, the American Law Institute, and the German Society of International Law (DGIR), he was also an active participant in debates and served on the organizations’ boards. His impassioned plea at the last meeting of the DGIR council for a more intensive exchange between the disciplines of public international law and private international law in March 2023 will still be remembered by all those who were present. As for the International Academy of Commercial and Consumer Law, he was instrumental in its establishment. Much more must remain unmentioned here, as the number of advisory boards and committees to which Jürgen Basedow belonged is too lengthy to list. Behind his tireless activity lay an interest in new things, political commitment and a strong sense of duty. He rarely said no.

Jürgen Basedow was, as well, a gifted professor and lecturer. His enthusiasm for international law was infectious. Whether in the lecture hall, in a seminar room, or as a participant in a law faculty discussion in Augsburg, Berlin, the University of Hamburg, or at the site of one of his numerous guest professorships around the world, he always spoke clearly, precisely, and eagerly, arousing the interest of those with whom he spoke. He took his listeners seriously, never talking over their heads and always addressing them on equal terms. With just a few sentences, he was able to get to the heart of complicated matters and at the same time portray them in a new light. When he took the stage at a conference, the audience would sit up in alert anticipation. Yet notwithstanding his aptitude as a presenter, Jürgen Basedow remained a good listener, an individual who derived value out of every lecture.

He generously and candidly shared his knowledge and thoughts, for he had no shortage of material, ideas, and topics. He successfully guided 20 students to completion of their professorial qualification – their habilitation thesis – and an incalculable number of junior academics from Germany and abroad earned their doctorates under his direction. In all, it was a prolific achievement in mentorship without parallel in German legal academia. His large number of disciples was certainly due to his scholarly enthusiasm and his wide-ranging interests, but it can be no less attributed to his open and genuine personality.

Jürgen Basedow spent almost forty years at the Max Planck Institute in Hamburg – more than half of his life, but also more than half of the Institute’s time of existence since its refounding. The Institute shaped Basedow, but he also shaped the Institute.

This was already true of his initial years at the Institute, during which he worked first as an assistant and then as the reporter for Netherlands– like Ulrich Drobnig, who died last year and for whom Basedow himself wrote the obituary for this journal, and like Oliver Remien, who also died in April 2023. His dissertation, for which he received the Otto Hahn Medal of the Max Planck Society, and his habilitation, which earned the Kurt Hartwig Siemers Prize of the Hamburgische Wissenschaftliche Stiftung, were written during his first stint at the Institute. Even at that time, his position at the Institute was one of heir apparent. When Ulrich Drobnig was out of the office as director, so goes the legend, people went to Jürgen Basedow with their questions as a matter of course.

And thus it seemed a predestined step that after his time in Augsburg and Berlin he returned to the Institute as director in 1997, succeeding Ulrich Drobnig. The ensuing triumvirate – featuring Klaus Hopt, who had come shortly before Basedow, and Reinhard Zimmermann, who was appointed a short time later as Hein Kötz’s successor – proved an auspicious combination, as the three scholars were able to significantly advance the Europeanization of private law from different directions. The influence was exerted on a practical level, with opinions such as the one on the EU White Paper on European Contract Law, as well as on an academic level, especially with the already mentioned “Handwörterbuch des europäischen Privatrechts”/”Encylopedia of European Private Law”. The fruitful cooperation continued in 2009 with Holger Fleischer, who succeeded Klaus Hopt, particularly in terms of their exchange on current economic policy issues. Overall, it became apparent that Basedow had brought a new dynamic to the Institute with his socially-oriented conception of core legal research. This influence can still be felt today.

Basedow was also active in the Max Planck Society: From 2000 to 2003 he served as chairman of the Human Sciences Section; from 2004 to 2006, in addition to his Hamburg post, he served as acting director of the Göttingen Institute of History. From 2002 to 2014, he headed the International Max Planck Research School for Maritime Affairs in Hamburg, an interdisciplinary endeavour which he co-founded; its later discontinuance met with Basedow’s disapproval.

Consistent with Basedow’s perception of the position, a director of the Hamburg Max Planck Institute functioned as custodian and ambassador of German private law, and he accordingly pursued a dual mission. On one hand, he saw it as his task to insert himself into German policy discussions and to bring to German law those findings of relevance that had been identified in comparative inquiry and the study of European law. In performing this role, he was not sparing with his criticism. The publishing house C.H. Beck, for instance, could only voice its displeasure when a gloss authored by Basedow awarded a “Golden Lemon” to a renowned commentary on the BGB – “the Palandt” as it was then still called – for its failure to include comparative and European law references and for the many abbreviations that left the text mostly indecipherable for non-native speakers; at least as to the former of complaint, his critique indeed foretold a change in approach. But alongside this domestic function, he was also a global emissary of German and European private law – a messenger promoting not their complicated schemes, but rather a scholarly approach to law and legislation.

In this context, Basedow influenced legislative projects and academic research at home and abroad and travelled countless times to universities all over the globe. His worldwide importance is reflected in the accolades he received. He received honorary doctorates from Stockholm University (2002), Leuphana University Lüneburg (2012), Ivane Javakhishvili Tbilisi State University (2012), Kyushu University (2013), Université Panthéon-Assas - Paris II (2016) and the Universitat de València (2019). Xi'an Jiaotong University appointed him as honorary professor in 2008, and the Hungarian Academy of Sciences named him honorary member in 2007. Words that Basedow wrote about Drobnig in his obituary – that he “built a global network of academic contacts for ‘his’ Institute, the Max Planck Institute for Comparative and International Private Law” – are perhaps even more true of himself.

With his retirement in 2017, Basedow withdrew from public office but not from academic life. Subsequently, he not only wrote the aforementioned monograph “EU Private Law”, but also worked on another volume on the unification of law, which will now be published posthumously. At the same time, he continued to play an active role at the Institute; to some, he seemed at times more relaxed and at ease than during the strenuous period of his directorship. A week before his death, he participated in a discussion on Islamic inheritance law at a symposium led by his former student Nadjma Yassari, and shortly thereafter he was scheduled to leave for a series of lectures in New York. On April 27, 2023, the day of the funeral service, he was to give the keynote speech at the opening of the new family law centre in Aalborg and attend the inaugural lecture of another former student, Jens Scherpe.

Jürgen Basedow was not one for saying goodbye. In the evening, when sitting together over a glass of wine with colleagues following a symposium or conference, it could happen that he would literally disappear – despite having just been at the centre of a lively debate – leaving without ceremony and without disturbing the ongoing exchange. Staff members would similarly fail in their attempts to say goodbye at the end of their term of service: “You’re staying in academia,” he would interrupt, “so we’ll be seeing each other regularly in any event.” And indeed: scholarship knows no goodbyes. Jürgen Basedow will continue to be present at the Max Planck Institute and in the societies, academies, committees, journals, and academic projects that he founded, led and shaped, and he will live on in his own scholarly work as well as that of his students.

Eva-Maria Kieninger, Würzburg 

Ralf Michaels, Hamburg  

The obituary will be published in German in issue 2/2023 of the Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ).

Translation: Michael Friedman

Image: © Max Planck Institute for Comparative and International Private Law / Johanna Detering

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