I sensed his exceptionality early on, at university. I say sensed because my view originated not so much in mind as in my nerves, guts, heart, liver and bones. Instinctively I knew Donovan to be that rare thing, a man who really matters. Reading his texts over and over again and each time discovering fresh evidence of his powers, I came to the conclusion that he was potentially the greatest international lawyer since Hugo Grotius, the founding father of international law. Grotius (1583–1645) was, in my view, truly a man of genius. Sometimes it is alleged that he was not an original thinker – that he was simply a man of extreme learning and trod paths laid down by people like Suarez and Gentili. That is a slur. Whilst it may be true that Grotius appropriated the concepts of societas humana and jus gentium, he did so to dramatic and innovative effect. To heat and hammer and pressurize the juridical materials he inherited in the way he did, into new and durable shapes, to produce such a work as De Jure Belli ac Pads, which resonates and bells to this day, is a creative, imaginative feat.
Armed with my accumulating knowledge of Donovan, I began to draw parallels between Grotius, a Dutchman four centuries dead, and Donovan, an Irishman at the Bar of England and Wales. I thought that there might be a thesis in the subject, comparing and contrasting the two men. In many ways they were different. Not only was Grotius a great jurist, he was also a philologist, theologian and statesman of distinction. Donovan was purely a lawyer, and furthermore, although he was absorbed by the academic side of his work, he also relished the pugilism of litigation; Grotius, by contrast, never enjoyed practising law, and was principally occupied as a politician, jailbird and diplomat. And while Donovan was precociously talented and several years ahead of his contemporaries (he graduated from Cambridge with a starred first aged twenty), Grotius was truly prodigious. As a child he published brilliant poems in Latin and Greek, was paraded in front of Henri IV of France, went to university at eleven and was awarded a doctorate at sixteen. He was a Mozart of erudition.
But then I discerned some similarities. Both men had remarkable memories; both possessed relentless energy; both worked unceasingly; and, perhaps most tellingly, both were acutely conscious of the passage of time. Grotius’s motto was Ruit hora, and it was one which Donovan could easily have shared. Despite his calmness, a weird urgency underlaid everything he did. Once he had performed the task in hand, there would be no dilly-dallying or idle chewing of the fat. He would be off and on to the next item. In some people’s eyes this made him poor company. Into the first part of my pupillage, for example, when I was still with Simon Myers, I approached Oliver Owen, who was Donovan’s pupil at the time.
‘Well, what’s he like?’ I asked eagerly (I had yet to meet him, having only caught glimpses of him on the staircase).
‘Dull as ditchwater,’ Oliver said. ‘A bit like you really. Don’t worry, only joking. No,’ he continued, ‘he hasn’t made a single joke in three months.’ He yawned noisily. ‘Just thinking of him makes me yawn.’
Philistine! I thought. Doesn’t he realize who he is talking about?
‘Is he clever?’ I asked.
‘Fucking clever,’ Oliver said. ‘But, in the final analysis, more boring than clever. Thank God he’s away half the time. It drives me bananas, sitting there in the same room as him. All he does is sit at his desk from the crack of dawn and churn out the papers. Never says a bloody word. He’s a fucking slave-driver,’ Oliver complained.
‘So he’s not very nice,’ I said.
‘Nice? James,’ Oliver said scornfully, ‘Michael’s not going to go around being “nice” or “nasty”. It’s just not on his timetable. He’s got better things to do than relate to people. That’s far too petty an activity.’
What do you expect? I thought. Donovan sees his pupils come and go every six months. He’s hardly going to be on intimate terms with each and every one of them. Anyway, what you don’t appreciate is the importance of Donovan’s work. A man like Donovan has a responsibility not to squander the enormous gifts which have fallen his way. If his shoes were laced on my feet I’d do exactly the same. I wouldn’t have time for too much small talk either.
The trouble with Oliver, I thought, is that, unlike me, he doesn’t understand Donovan. Me, I understand him.
In the years that followed my understanding of the man deepened as I kept track with his ideas and preoccupations. They were fascinating. Early on in his career he had developed a peculiar specialty: the law of outer space. He wrote with authority on mainstream issues like the problems of spatial junk and the demarcation of airspace and outer space, but his reputation in the field was sealed by a dazzling, questioning essay on the regime of res communis that operates in outer space – a regime which designates outer space as an area existing for the benefit of the whole of mankind (so that a country or corporation cannot own celestial bodies or, for example, mine metals in asteroids for exclusively private gain; another consequence is that weapons of mass destruction – and sky wars – are also prohibited up there; no guns among the stars).
From outer space he moved to submarine areas, a much more orthodox field. He treated the usual problems (economic zones, the exploitation of the continental shelf, the delimitation of territorial waters) but lingered in one unusual area: the deep ocean floor, also designated by international agreement for the benefit of the whole of mankind. Finally, in the mid-eighties, when I stopped my research, he was looking closely at the notion of the sovereignty of States – in particular, at the concept of exclusive jurisdiction.
What characterized Donovan’s contributions was that they were, in essence, questioning. He was not an answers man. Solutions to old problems did not interest him: he was after the problems with the problems. He would take an issue, all weedy and overgrown with commentaries and opaque analyses, and wipe it clean as a washed slate. The resulting clarification was startling, but then, tantalizingly, having illuminated the subject to an unprecedented degree, he would move on to another. It was frustrating for the reader, and led to the accusation that he was essentially a negative thinker and a trouble-maker. But I knew better. I knew that he was keeping his powder dry. I knew that on the horizon was a great, synthesizing work that would bring together all his preoccupations. Indeed I counted on it, because without a revolutionary masterpiece to Donovan’s name, the careful comparisons I had drawn between him and Grotius would be embarrassingly unfounded. For years I waited for the great work. Scrupulously photocopying his academic output in the library, I bided my time. If anyone had seen me, my hopeful face flashing over the machine, they would probably have laughed. So be it, I thought. Let them laugh. Let them think what they want.
You see, I had faith in Donovan. I knew that, in the end, he would come up trumps.
But, as I have said, the whole enterprise drifted away from me of its own accord. Even when I began reading the first part of Supranational Law and realized that, yes, this was the work I had banked on for all those years, I was not excited so much as wryly satisfied. Nor did I seriously contemplate resuming my thesis. My ambitions along those lines had expired.
The scheme of Supranational Law was breathtakingly ambitious. International law as we understood it, Donovan said (I am paraphrasing crudely and over-simplistically), was out of date. At present it governed the interrelations of sovereign States and did not interfere with the relations of the State with its own citizens and territory. When it came to internal matters, the State had exclusive jurisdiction – this followed, according to the orthodoxy, from the fact that States are sovereign. That was fine, Donovan said, as long as the treatment by the State of its citizens had purely domestic consequences. So, for example, if the Albanians had an atheist, insular, Marxist State, or the Iranians preferred an Islamic republic, that was (putting aside, for the moment, the question of human rights) a matter for them. But what if a State’s internal actions had grave external consequences? What if, for example, a State burned millions of square miles of rain forest, or punched a hole in the ozone layer, or conducted mili
tary experiments that caused irrevocable pollution? Or, to take another example, ordered the extermination of a precious species of animal?
The time had come, Donovan argued, for international law to come to terms with the vital new issue of our times: the prevention of the destruction of the planet. It was true that provisions existed that purported to deal with some of the problems involved. But, Donovan argued, these provisions (i.e. treaties and multilateral conventions) were deeply flawed. Why? Because they remained purely an expression of national interests. This was dangerous, because safeguarding a variety of national interests was an inadequate mechanism for safeguarding the interests of the globe. At present, it was up to a State to determine what its national interest was, and if that meant endangering everyone else, that was tough luck. By law, the rest of the world was not entitled to interfere. It was none of its business.
No, Donovan said. One had to start afresh. For guidance one had to look at the only places where national interest did not rule: extra-sovereign areas like the deep sea-bed and outer space, Antarctica, the high seas. Donovan’s thesis was that the concept of the common good which operated in respect of these regions should be extended: surely it was incontrovertible that the rain forests were a resource of the world and not just of, say, Brazil. And States owned airspace, yes, but the world had a vital and legitimate interest in the gases contained in the airspace. The flipside, Donovan said, was that the wealth in the developed countries was also a resource of the world. In order to strike a balance between these two resources, Donovan said, a coherent jurisprudence of supranational law – law founded on the supranational, and not just national, interest – was necessary. His book, he humbly hoped, would supply that jurisprudence.
I tossed the final page on to the carpet. What a project. How on earth was he going to do it? Several huge, and to my eyes insuperable, problems appeared immediately. The function of the State would have to be examined and redefined, and the principle of the self-determination of peoples would have to be shaped afresh. Then there was the thorny question of causation – when a forest in Central America is set aflame, are not some of the perpetrators thousands of miles away, in air-conditioned boardrooms? These were very difficult philosophical, as well as legal, questions – could Donovan deal with them?
Yes, of course he could. He was made for it. He was born to meet the challenge.
ELEVEN
The next day, Monday 14 November, I found in my in-tray a summons for the pre-trial review of Donovan v. Donovan. Pre-trial reviews are particularly necessary in contested divorces, in which wild accusations and irrelevant, expensive antagonisms abound. A purpose of the review is to cut these out and to ensure that the trial takes place expeditiously, with no unnecessary slanging matches. It must be said that there was little danger of Donovan coining out with extraneous recriminations. Unlike my usual clients, whom I have often had to restrain from making outrageous attacks on their spouses, he knew what was at issue, which allegations counted and which did not. There was no need for me to spell things out for him. He knew what was what.
I telephoned Rodney and told him to inform Donovan immediately of the summons, which was returnable in two weeks’ time, 28 November. That was fine, Rodney said. According to his diary, Mr Donovan would be flying in from Europe early that morning (Donovan’s diary! I remember leafing through its crackling, blue-edged pages as a pupil, marvelling at how it was jam-packed for years ahead, how his golden, rock-solid future unrolled there for all to see …). He would go to court directly from the airport.
‘Is that wise, Rodney?’
‘You know Mr Donovan, sir. He likes to keep things fairly tight.’
This last-minute arrangement left me a little anxious. Not only was there the risk of Donovan appearing late, it also gave us no opportunity to confer. This worried me because I still had only an imprecise idea of the circumstances of the case. I was in the dark about almost everything and, as I have said, unlike some people, who seem to possess the relevant bat-like radar, I operate poorly in this kind of darkness, where I tend to bump into shapes that loom suddenly out of nowhere. One aspect of this benightedness was that I was quite unable to see a way out of the deadlock which Donovan and Arabella found themselves in: he would not contemplate consenting to the divorce, she would not consider reconciliation. The dangerous thing about the deadlock, of course, was that the longer it continued, the stronger grew the evidence that the marriage had irretrievably broken down. If Arabella could show that this had happened, she was half-way to getting her divorce.
That said, I should also note that my anxieties about my ignorance were allayed by the knowledge that Donovan, at least, had all the facts in his possession; and that was fine with me, because, in all truthfulness, and notwithstanding Mr Donovan’s views, they could not have been in better hands. Clearly Donovan recognized the impasse he had reached and the problem it presented. The only question was, what was he going to do about it? I should say here, for the avoidance of doubt, that I did not resent leaving the conduct of the case to Donovan. Any misgivings which I might have had on that score had been quashed over the weekend, when in reading his new work I had become re-persuaded of the man’s legal prowess. There was no dishonour in playing second fiddle to him. Indeed, it was right and fitting for a man like myself to do so. Some people are more potent sources of influence than others and it was only natural, therefore, that events should flow and braid from Donovan’s actions more than from mine. That was the way of things.
Two days later I was stepping out of the office building on my way home when suddenly someone intercepted me.
‘Why, Mr Donovan,’ I said, continuing to walk.
Smiling, his hand on my back in an avuncular fashion, Fergus Donovan steered and deflected me through the doors of the pub we were passing. He said something I could not hear in the roar of cars and, disregarding my unwillingness, he sat me down at a table and fetched me a pint of bitter (he himself drank fizzing mineral water). He began talking to me as though he were confabulating with an old friend. He hunched his shoulders and lowered his voice. He leaned forward, taking me into his confidence.
‘Well, Jim, I can’t say that things are looking too hot.’ He explained himself: ‘Yesterday I spoke to Arab. I went round to her mother’s place to see if there was anything I could do. We sat down for a coffee, just the two of us, you know how it is.’ Mr Donovan pointed at the two of us by way of illustration. ‘We talked about this and the other for a while. She seemed pretty relaxed and she was looking well. So, anyway,’ Mr Donovan said, ‘eventually I stop circling around the subject and I get to the point. I say to her, Give Mikey a chance. Give yourself a chance, I said. Talk to him. Speak with him at least.’
Fergus Donovan was making a pleading face, demonstrating how he had looked at Arabella. He shook his head. ‘Well, she wasn’t having any of that, Jim. She wasn’t having a bit of that. It was over, she said. She’d made up her mind.’
Mr Donovan leaned back to analyse her reaction further. Then he leaned forward quickly and said, ‘She wasn’t angry, no, I wouldn’t say that: there was no anger there at all – it was like she was resigned. Like she’d quit and that was that. She said the best thing would be if Michael just let her go. I tried another tack – Jim, let me tell you, I’m not a man to give up easily, I’m not a quitter – I said, Arab, tell me: tell me what Mikey’s got to do. You can tell me, you know that, I said. Nothing, she said. There was nothing Mike could do. It wasn’t what he did, it was what he was.’
Mr Donovan slumped into his chair. ‘For an hour I talked to her, trying to change her mind, but, well, Jim, to tell you the truth, I got nowhere.’
I said nothing. Surely he had not imagined that one pep-talk would be enough to patch things up?
Reading my mind, he said, ‘Of course, it was only to be expected. And what can I do? I’m just an old man, what do I know? But you see it’s even worse than I thought. I thought – well, I don’t know what I thought,’ he ad
mitted. ‘I just didn’t know it was this bad.’
He looked downhearted and, for the first time, he looked his age. The visit to Arabella – this whole business, in fact – was clearly upsetting him. I felt sad for him. At his stage of life he needed peace of mind. He needed everything to be settled, in its place.
I said, ‘Michael does not seem to think it’s finished. Otherwise he would not be resisting the divorce.’
‘You want to know something interesting?’ His voice was hoarse. ‘You know what else she told me? She told me the reason she didn’t want to speak to Michael was that she was afraid. You know why? She was afraid because she knew that, if Michael was given half a chance to talk to her, he would persuade her to go back to him. That was part of the problem, she said. Whenever Arab and Michael had an argument or a disagreement, Michael would always come out on top. It’s not that he would win: it’s that he was always right. You see what I’m talking about, Jim?’ Mr Donovan asked. ‘He was never wrong, she said. He would never allow her the satisfaction of being lighter than him once in a while. It’s not that they had arguments the whole time – no, they agreed on almost anything! I know! I saw them together! Jim, they were like two doves! – it’s that when they disagreed, Mike would always be in the right. And Jim,’ he said, ‘I’d like you to imagine what that feels like.’ Mr Donovan looked at the table. ‘Too clever. Too much of a smart-ass for his own good.’
What Mr Donovan said did not surprise me. What chance did Arabella stand in an argument with Donovan? He was a professional arguer. The tricks of apologetics, the ins and outs of pro and cons – he knew them all. When it came to winning over, to logomachy in any form, he was the best. He would be incapable of losing an argument with Arabella for the simple reason that he would only argue if he knew he was demonstrably right: otherwise he would simply agree with her.
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