From Intellectual Poker to Open Debate

Tarunabh Khaitan’s editorial in the International Journal of Constitutional Law presents insightful remarks about the risk that scholactivism may fail both as scholarship and as activism. Judging by the social media reaction, there is little agreement among scholars on whether scholars should use their scholarship to promote political goals.

The questions Khaitan raises are of critical importance, especially for many of us who work in legal fields that are also fields of intense advocacy. It also deserves to be noted that Khaitan’s piece is a courageous expression of an opinion strongly rejected by many colleagues. I know from personal experience—following my own (far less skilful) attempt at discussing some of these issues in the context of climate law scholarship—how, even in academia, disagreement can lead to unacceptable personal attacks. Critics should engage with Khaitan’s argument, but they should do so in a spirit of respectful intellectual engagement.

I largely share Khaitan’s discomfort with scholactivism, which confuses two different goals: advancing human knowledge and advancing a political goal. However, I wonder whether the instrumentalist argument that Khaitan develops is really the decisive one. In this blog, I present some doubts about this instrumentalist argument before suggesting another line of argument, based on the intrinsic nature of academic research.

The limitations of the instrumentalist argument

Khaitan’s core argument against moderate scholactivism is that it may be counterproductive: scholactivists may end up impeding the political goals they want to advance. “[E]ffective activism”, Khaitan writes, “requires a highly specialized set of professional skills and judgment, qualities which only very few of us are ever likely to acquire alongside our day jobs as scholars”. Unlike scholactivists, real activists “are able to make strategically targeted outreach to limited audiences—a sort of control that scholars tend to lack over their published works”.

This argument, however, overstates the comparative advantage of activists over scholactivists. Blowbacks is also a real risk for professional activists, who may have more specialized skills and relevant experience, but they operate under different constraints. To attract donors, a professional activist may prefer an immediate but elusive “victory” over slow but meaningful progress. And scholactivists are certainly able to build on some of the skills and experience of professional activists by working with them, for instance, in ways that will help them to target a specific audience. Overall, while there are instances where (schol)activism backfires, I see no reason to assume that this is the case most of the time. Many scholactivists, I suppose, are able to achieve the political aim they strive for.

On the other hand, scholactivists might be more persuasive than professional activists because they have more credibility. Many of us would consider a claim more credible when it is made by a scholar (especially one who is not perceived as a scholactivist) than when it is made by an activist. Activists are expected to select information, possibly even to lie, or at least to exaggerate, in order to advance their goal. By contrast, insofar scholactivists are perceived as scholars rather than as activists, their audience expects them to pursue, as Khaitan puts it, “the twin objectives of truth-telling and knowledge dissemination”.

An alternative line of argument

Khaitan’s two hypothetical scholactivists, Zohrab the radical and Mridula the moderate, are able to influence constitutional debates through their publications due (I presume) to their authority as well-established legal scholars. Zohrab and Mridula are also citizens, with their own opinions on a number of political issues (e.g. climate science, abortion, or the need to expand the welfare state). Constitutional judges may accord some deference to Zohrab’s and Mridula’s legal expertise, but not necessarily to their personal opinions. I used to have a doctor who told me that climate change was a sham: I listened to him for medical advice, not for climate science.

The reason why most scholars would object to the radical scholactivism of Zohrab is that it is dishonest: it aims at passing as a bona fide exercise of legal expertise what Zohrab knows to be something else. While Mridula’s scholactivism is more subtle, it is not fundamentally different. Mridula does not misrepresent the conclusions of her research, but she selects what she publishes, and how she publishes it, with the view of advancing a particular goal. To make time to write her paper on the applicability of the immunity clause to the Equality Act, she presumably decided not to carry on another writing project—one that, she suspects, could impede her political goals. Mridula selects the information and arguments that she wants to publicize, not when writing a manuscript (as Zohrab does), but when deciding what manuscript to write at the first place. The result, however, is similar: the constitutional court is only served one part of the story—one carefully curated by Mridula to fit her political views.

To illustrate this, let’s now look at Victor, a climate law expert who (like many of us) is deeply concerned with the widespread and irreversible impacts of global carbon-dioxide emissions. Victor is a moderate scholactivist, who signed a pledge—the “World Lawyers’ Pledge on Climate Action”—to “take personal and institutional responsibility” by “taking action against climate change … within [his] fields of activity”. Victor is aware that a Supreme Court in a developing country is preparing to interpret the positive obligation of the national government to protect human rights as implying a prohibition on the use of coal. Victor’s legal analysis suggests that the decision is based on a misreading of human rights law, as, Victor understands, the decision would have widespread adverse impacts on the population under the state’s jurisdiction. However, as Victor is committed not to impede climate action, he decides not to write this analysis. As a result, the court carries on with its ban on coal, which results in a devastating economic and social crisis.

Victor’s scholactivism-by-omission is moderate—even more so, arguably, than Mridula’s scholactivism-by-commission—and yet it is highly problematic. By deciding what to write about and what not, Victor has influenced an important, if difficult arbitrage between climate change mitigation and poverty eradication. One could question why Victor—a well-off scholar living in a developed country—has the right to decide whether populations living today should be sacrificed for the benefit of future generations. How would Victor ensure that he is making the right decision? Shouldn’t Victor have acknowledged what he thinks to be the ambiguity of human rights law on the matter in order to inform political deliberations, rather than letting a court’s error (or so Victor believes) preclude this debate?

Of course, Victor may also be biased in many ways that he is unaware of. His very choice of focusing on climate change, rather than (for instance) on poverty eradication, likely reflects his own concerns, as a well-off scholar from a developed country. Victor cannot be fully objective. He can, however, do his best in pursuing the objectives of truth-telling and knowledge dissemination.

My opposition to scholactivism, including by commission and by omission, is informed by the assumption that such decisions should better be informed by the best knowledge available and by an unimpeded exchange of views. If all Zohrabs, Mridulas and Victors were to stop trying to play an intellectual poker game, and if they were instead to engage in an open intellectual debate without consideration for what they expect to be the consequences of their arguments, they may lose some political battles, but they would also engage in more meaningful debates which, overall, would permit better political and legal decisions. By doing so—who knows—Zohrab, Mridula, and Victor may even change their opinion about the goals that the law ought to be pursue.