24 Juni 2020

If the Message Doesn’t Suit, Shoot the Messenger

The Attack on Dimitry Kochenov

In Autumn 2019 a Dutch news programme claimed that Dimitry Kochenov was ‘involved’ in the ‘passport trade’. He was associated with two organisations that lobbied for citizenship by investment (CBI) and he had advised the Maltese government on this. The programme caused enough fuss that there were questions asked in the Dutch parliament, and Kochenov’s university felt the need to set up an investigation. 

The programme was a personal attack. That is to say, it did not set out to examine whether CBI and the Maltese programme can be justified, perhaps putting Kochenov across the table from an expert with opposing views and asking them both critical questions. Rather, it implied that his actions were illegitimate and inappropriate to a professor at a university. A fair number of Dutch academics, to judge from Twitter, private conversations, and blog comments, were inclined to agree – although many more were not.

I see this as raising a question of academic freedom. When do an academic’s views or actions put them beyond the pale? Traditionally we engage with the substance of views that we disagree with. We all have colleagues who advocate laws and policies which we would regard as harmful to society. Yet generally, we do not think that this undermines their professional position. We simply write our articles, saying why they are wrong about the EU, or competition law, or whatever it may be. 

Purists might say that views should not be paid for: external payment undermines academic objectivity, delegitimating the researcher and their research. Aside from the problem that such posts are ubiquitous, this misunderstands the nature of legal research. Unlike empirical sciences, which rest on potentially falsifiable data, lawyers make arguments built on publicly available documents. Their motivation, their ethics, their character, are all irrelevant to the quality of those arguments. Like novelists or poets, the value of what they do depends on the way their words fit together, not why they write, nor what they do in the afternoons. 

Motives might be, however, more important to the extra-curricular activities themselves. When academics intervene in society and politics perhaps, as publicly funded figures, they should do so in good faith: their views may be their own, but they must act for their understanding of the public good, not just their self-interest. 

Judging motives would not be a fruitful path to go down. It underestimates the complexity of what is at stake in any action. People may act for those they dislike because they approve of free speech and representation, or they think that disruption and revolution are desirable, or perhaps because opponents are even worse, or bigger issues are at stake. Who is to say they are wrong? In practice a view that academics may advise the local sports club or charity, but not the government of Malta, would just collapse into ‘my causes are good, yours are illegitimate’. 

Nor am I convinced that payment helps us decide what is acceptable. The assumption that money is uniquely corrupting or influential seems without much basis. Particularly for professors who have comfortable and secure salaries, glory and status may be quite as seductive as a few thousand extra euros. Should we dismiss academics who accept positions for the love of acclaim or of an audience? Is the campaigner for social justice, active in NGOs and good causes, to be dismissed because vanity drives her as much as compassion? The view has a certain biblical beauty, but as that implies, asks too much wisdom of those who must play judge – and perhaps too much saintliness of everyone.   

Clearly, if we are to decide which extra roles are acceptable for an academic, we need a more objective test than the purity of their heart, and a more meaningful one than whether they are being paid. 

Is it publishable?

There are, I think, just two ways of drawing a line. One is to ask whether there is a defensible argument in favour of their actions. The standard might be ‘is it publishable?’ If so, then it seems to me that these views, and the corresponding actions, are ones that an academic may have, and the response is to argue against them, not to attack the person. The other way is simply to exclude, as we do with free speech, the most extreme, offensive or socially threatening standpoints. This should, of course, be a last resort, and in practice it is related to the first approach: those standpoints we exclude are those for which no adequate arguments are thought to exist.

The attacks on Kochenov implied that his activities were of this last type – beyond rational defence. This, however, is utter nonsense, showing a simplistic lack of understanding of what is at stake, as well as of what he did.

Regarding CBI, it is far from evident that for a nation to accept a million euros in exchange for a passport is irrational, unethical, or hard to understand. It is a serious contribution to that society, and perhaps a much needed one. Certainly, there are issues of potential corruption, and of externalities for other states (As the Netherlands, with its tax policy, ought to understand). One may also worry about what it does to national community and identity. But on the other hand, the principled rejection of CBI is often associated with a sacralization of citizenship, which is in turn a cousin of ethno-nationalism. When we say that national belonging is special, and can never be sold, we entrench a form of belonging which has been the cause of much of Europe’s historical misery. Frankly, without being any fan of the Maltese government, those who abhor the very idea of CBI frighten me, for I see echoes in them of a danger for the continent that is far greater than anything the sale of passports will create.

Kochenov’s scholarly work is driven by his concern with how citizenship may become a tool of exclusion. He does not advocate CBI as such, but takes the view that it is a legitimate choice that countries may make – and he robustly investigates the implicit presumptions in the arguments of those most fiercely against. He has been consistent and principled in his views since the beginning of his career, and while plenty disagree with him, he has a considerable academic following and has established an important debate. 

For him to be involved with Henley and the IMC seems to me no different from the labour lawyer who works for a trade union, the liberal free-marketeer who works for a commercial law firm, or the justice campaigner on the board of a human rights NGO. They are all, it is worth remembering, lobby groups: organisations that exist to pursue a cause, whether it is their own profit or the wellbeing of the vulnerable. Each of these academics proclaims in the realm of practice and policy the views that they defend in scholarship. Kochenov has always been quite open about his involvement with Henley and the IMC, and it is quite compatible with his research. 

For many though, it is working for Malta that crosses the line: the accusations of corruption, and the murder of the journalist Daphne Caruana Galizia make their CBI policy particularly controversial. Yet even here, there is room for difference. The government is democratically elected, and even if much of the money is lost in corruption the policy may still serve the Maltese people. How many children have been educated or treated with money from foreign millionaires? It is too glib and easy to think this does not count. A reasonable person could take different positions on whether Malta should (be allowed to) have their policy, or on whether it should be closed down, or just cleaned up.

In any case, Kochenov’s involvement with the Maltese government was to give advice and representation on the question of competence: whether the EU had the power to intervene. That is an abstract and important question of law with implications far beyond the Maltese question, and without doubt an entirely legitimate issue to consider. If the Commission had got its way, and established a competence to limit Member State nationality policies when, for example, they create externalities for others, it would have been the first step to wider interventions. It seems unlikely, given their own idiosyncracies of nationality law, that the Netherlands would want this. One hopes that they are grateful to Kochenov for successfully arguing their view. 

Some seem to think, however, that it is wrong per se to advise a corrupt government, or about a bad policy. That is an interesting point of view, but hard to maintain. The rule of law requires that everyone have access to lawyers. Some may refuse to advise parties they dislike  – although that violates professional ethics in some jurisdictions – but this self-indulgence is possible because others will step in. Otherwise, the legal system collapses. A fortiori in a case such as this one, where Kochenov was not asked to defend the policy as such, but to address the division of powers between Member States and the EU.

Attacking Kochenov for all this, seems to me, on the whole, a form of intellectual laziness. He takes views that are critical of the way society is organized, and contrary to the public and political orthodoxy. That causes unrest when it is noticed, and creates the risk that questions will be asked about whether academics should have such freedom or such status. In a sense, he threatens us all – by being a little dangerous. 

However, for that same reason, we should treasure his sort. He challenges and disrupts conventions, confronts us with the consequences of unexamined assumptions, and pushes us outside our comfort zone. His arguments, whether or not we are fully persuaded, are always thought-provoking and take us a little further. This is what academia should be about. To suggest that he should not act according to his well-thought through principles, or to attack him for defending the unpopular, seems to me a betrayal of academic integrity. 

Post-script on the investigation

The investigation found that Kochenov had broken internal faculty rules, but not that there was anything inherently wrong with his involvement with Henley, IMC or Malta. The summaries by the university, and by Professor Colombi Ciacchi, in the comments on this blog, are accurate. The representations by the Nieuwsuur journalists and Luuk Mulder (also in the comments) are not. The investigation does not support the insinuations made in the initial programme. 

The investigator’s report did contain two substantive criticisms. One was that Kochenov had created a conflict of interest. However, weighty though this sounds, the conflict they identify appears to be a purely financial and internal one, concerning whether he should have kept the fees he earned himself, or passed them on to the faculty – which appears to turn on details of faculty rules. The finding of a conflict does not, therefore, imply that his advice or speaking was inappropriate as such – indeed, in addressing the division of profits it appears to suggest the opposite.

The other criticism was that he had damaged the reputation of the university by engaging with a sensitive matter. That is a very troubling claim, unless the university wishes to be known as one that does not address sensitive topics. In that case it may be time for new management. More plausibly, its academic reputation has been damaged by its failure to defend Kochenov more actively. The university authorities did not seem to be aware of their responsibility to protect professors who research difficult subjects, take inconvenient views, and are attacked for doing so. On the other hand, their non-confrontational approach may well have kept the peace with local politicians, journalists and some academics, for whom an outspoken and successful foreign colleague is an unwelcome disturbance. Maybe the question is just ‘which reputation – with whom?’ 


SUGGESTED CITATION  Davies, Gareth: If the Message Doesn’t Suit, Shoot the Messenger: The Attack on Dimitry Kochenov, VerfBlog, 2020/6/24, https://verfassungsblog.de/if-the-message-doesnt-suit-shoot-the-messenger/, DOI: 10.17176/20200624-124130-0.

6 Comments

  1. Jan Komárek Mi 24 Jun 2020 at 16:44 - Reply

    It may be good to move the debate from the original post by Dmitry (I link it here, as Gareth did not do so: https://verfassungsblog.de/passport-trade-a-vicious-cycle-of-nonsense-in-the-netherlands) to a new one – otherwise the important issue of academic integrity (or freedom, as Gareth frames it) could get lost in the many other posts here. I am however afraid, that it does not add much to the debate there, since it first, side-steps some issues regarding Dmitry’s case, and second, seems to misunderstand the more general concerns about the involvement of academics in private business, raised under the original post.
    Regarding the first, I am afraid that saying that Dmitry “was associated with two organisations” is misleading. He was not only associated with them, he was setting them up, one a lobbyist organization (the Investment Migration Council), the other a private company (IMC Ltd). So please, do not tell us it is about doing consultations, as other academic lawyers do (which I also find problematic, but I understand that this may differ from country to country, so let’s put this question aside for now). Dmitry’s activities is not consultancy, it is about doing business on the basis of his’s position at a university and the related social capital he sells. I cannot believe my eyes when you write that Dmitry “does not advocate CBI as such” – I mean, really?
    This leads me to the second set of issues that your post does not help to clarify, in my view. You compare Dmitry’s activities to “the campaigner for social justice” or to a “labour lawyer”. But that is precisely the point: we are not campaigners or lawyers, we are academics, and we work at universities. Yes, some people think that we should produce some measurable value to the society (best to be measured by money), but I hope it is still not the view held my most of my colleagues (and some have quite hard time to resist it at their universities in the UK).
    I think our concern is the pursuit of knowledge, no matter how imperfect or even partial it can be. And that it why we should not engage in certain activities, such as setting up companies, no matter if they support the case we believe in. If you do not agree with this, and think that an academic lawyer – a professor at a university – is no different from a partner in a law firm or a political activist, then yes, it is difficult to have a debate with you on this.
    This, in the end (no matter what some “knowledge corruptors”- https://politybooks.com/bookdetail/?isbn=9780745669854 say), gives us our authority (which in law we largely borrow from more “scientific” disciplines at our universities and had to earn by emulating sciences).
    But even if you disagree with me on this:
    Is it really true that it does not matter if an article entitled “Citizenship is a hypocritical scam that preserves and reinforces global inequality” is signed by “a professor of EU constitutional law at the University of Groningen”, or “a member of the board of IMC Ltd”? Don’t you think that people reading this should know that the author is doing business based on his argument?
    Second, it is the moralist language that Dmitry often adopts (just see the title of the article above), offending those who may disagree – and they do. In fact, as pointed out here (at point 4: https://threadreaderapp.com/thread/1270625314444541952.html), there is no agreement in the academic community that the EU has no competence to intervene in this business – at least if Steve Peers’ views count; moreover, as I also noted in my comments to Dmitry’s post, it is misleading to invoke Jo Shaw as part of that (non-existent) consensus.
    I could go on (in fact, there more statements in your blogpost, that I have a trouble with), but these are the most important.
    I just wanted to conclude: please, do not accuse those, who felt the urge to react to the one-sided, self-congratulatory post by Dmitry – who brought this issue here (not the Dutch journalists) of intellectual laziness. This is not (this time) about substantive disagreement. It is about the foundations of what makes us academics.

  2. Gareth Davies Mi 24 Jun 2020 at 18:03 - Reply

    Jan, you are missing the point: Dutch (and other) universities are full of people who earn on the side. I could name several (including in his faculty, and mine) who have consultancies that they have set up, or who work part time as lawyers, or are paid to be on the board of organisations or companies. All of them are earning on the back of their academic post, which enables them to attract clients and raise fees.
    I’ve said why I actually don’t think this is a problem – as long as they do their academic job well – but I can see there is a discussion worth having about this. It is quite a multi-facetted issue.
    However, what seems to me fundamentally unacceptable is to attack one academic for doing what is accepted for others, merely because his topics and standpoints are controversial. That is what is happening here. And this is why it is in fact an attack on ideas, not just on earnings.

    And no, it is not the slightest problem that an article on the hypocrisy of citizenship (a worthwhile argument) is written by someone also paid for pushing this view. Tax and private law journals are full of articles written by people doing the same – for you will have to look far to find a commercial practitioner-academic who writes against the interests of his clients. The question is not why they wrote it, but if it is any good. I actually find it far more problematic that faculties allow academics to be part-time judges – now there’s a conflict: how open are you to the arguments of lawyers if you have already committed yourself to a legal position in print?

    And to then speak about the tone is to lower the level of your own argument. If someone’s academic freedom is attacked, if they are singled out for doing what other, less outspoken colleagues do without any fuss, surely you don’t answer ‚well in this case I think it’s ok, because I don’t like his tone anyway‘. Do you?

  3. Jan Komárek Mi 24 Jun 2020 at 18:23 - Reply

    Dear Gareth,
    I am afraid you need to read my comment again, since otherwise we will end up talking about different things: I did not ask whether it is a problem that „an article on the hypocrisy of citizenship (a worthwhile argument) is written by someone also paid for pushing this view“. The problem is, once again, that someone who is paid for pushing this view signs such article as a professor and not someone who makes money on pushing such view.

    You also misinterpret what I said regarding the tone of Dmitry’s writing: I did not mean his blogpost here, but his academic and other writing, including the article on hypocrisy. Invoking political morality and doing business in a very nontransparent way (and I stress, regardless whether it is CBI or tax avoidance) may fire back – as it has.

    ON the normalcy of doing business while being a professor: I hear different things from colleagues, even from the Netherlands. And yes, we need to have a debate on this, since some people (I do not know how many) think that it is perfectly OK; you even seem to think that there is no difference between a political campaigner, business lawyer and an academic. I really hope this is not the norm.

  4. Wojciech Sadurski Do 25 Jun 2020 at 05:05 - Reply

    Without, at least for the time being, entering into a debate on the merits about my friend Dimitry’s „case“, let me just say that a statement by my (another) friend Jan: „we are not campaigners or lawyers, we are academics, and we work at universities. Yes, some people think that we should produce some measurable value to the society (best to be measured by money), but I hope it is still not the view held my most of my colleagues“ – is surprising, as far as I am concerned. Can we, and do we want to, draw such a line between academia and advocacy on the issues which our academic pursuits concern? Perhaps it is somewhat self-serving for me to raise this question as I should declare that I am not totally immune from the controversies in the real world, but I believe that our academic positions (e.g. when mentioned in our op-eds. – something on which normally newspaper editors insist) add to rather than detract from the principle of candor and transparency. (They may also add to extra legitimacy of our views in the eyes of some readers but there is nothing disingenuous about *such* legitimacy: a „theoretical authority“ as Joseph Raz would say). For my part, I would prefer not to remain anonymous, or silent about my academic work when I raise alarms or advocate particular practical policies, say on the issues of constitutional breakdown in this or that country. And if *this* is legitimate, I do not see how it differs from Dimitry’s practices when his academic affiliation is revealed in his advocacy on different immigration policies.
    So perhaps the issue is that he makes some money in a legal practice related to those views of his. But (if, arguendo, this is the case), as Gareth says this is a case of great number of academics, and not just lawyers. The only problem would be if his academic views were deliberately tailored to suit his financial interests, but as I understand Jan (wisely) is not crossing this bridge.
    Let me also add that I fully concur with Gareth’s words of dismay regarding Dimitry’s home university’s attitude and practice.

  5. Post doc Do 25 Jun 2020 at 12:05 - Reply

    How about: we live in the times of post truth, fake news, the crisis of confidence in objective knowledge and academic authority. One of the reason is that the public may reasonably expect that academics say what they say (about the safety of GMO or the Rule of Law) because someone paid them to do that. This lack of trust in truth and scientific authority desintegrates societies (see Poland). I think it is high time to raise our standards towards academics and what they cannot do on the side to counter these trends. This is to respond to the Gareth Davies‘ view that „everyone does it, so it must be OK“.

    Gareth Davies says that what professors do in their non academic time doesn’t matter because only the substance of their scholarly arguments does matter. If someone gives good advice to EU institutions and national governments refarding what the rule of law is and what it requires (even though the greatest minds have never figured out a precise meaning of this concept); if someone does it not only in academic journals but also blogs, open letters etc., then this person cannot be involved in any economic activity of dubious morality or will lose any credibility. Blog posts and open letters are read not only by scholars, who can assess the quality of arguments, but also by the general public who may want to listen because it’s been signed by a „professor“. With great power comes great responsibility, as Uncle Ben used to say.

    Russian oligarchs, who harvest on poor Russian people and public property thanks to a non-democratic regime, can buy Maltese passports with which come EU rights and privileges. This seems a bad thing to me, even if Malta can benefit from this. Facilitating this knowingly although indirectly seems a bad thing too.

  6. Jan Komárek Di 30 Jun 2020 at 14:53 - Reply

    Dear Wojciech,
    I certainly do not object to academics‘ affiliations to be mentioned in their op-eds when they contribute to the public debate (which to me is quite different from either campaigning or lobbying). What I however object to is when someone wants to appear as an academic (only), while they are also act as lobbyists and business persons. As the fellow post-doc commentator above said, the general public may (hopefully) still be interested to listening to academics contributing with their thoughts and knowledge to the public sphere that has been largely colonized by powerful economic and other forms of social power.

    And while I have a great respect to your public stance in the struggle for democracy and the rule of law in Poland, the moment I would find out that you are paid by either a political party (and hence do campaigning, rather than engaging in public debate), or that you are part of a business structure of which you remain secretive (and hence do lobbying), you would lose all my respect as a fellow academic.

    I think we need to think and debate about these distinctions and boundaries of what we, academics, can and cannot do, if we want to preserve the (remnants of) public trust.

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