26 August 2022

The Good Cause

A good journalist does not get involved with any cause, not even a good one. It is so 1980s, this phrase, so smooth, so cool, just as polished and whisky-tumbler-swirling as the famously handsome grey-haired TV anchorman Hanns-Joachim Friedrichs it is usually, albeit perhaps falsely attributed to. The fact that the phrase has managed to lodge itself so firmly in the public memory may have to do with the fact that it’s at the same time so obviously true and so obviously false: Of course, any good journalist is constantly getting involved with all kinds of causes, good or bad. Why else (good pay aside) would she bother at all? To claim the opposite for oneself seems to me more posturing than professionalism: depicting oneself as a detached, superior, super-cool ironist, beholden to none, hovering above all public things, and the less one actually is, the more one aches to be, all in all more an indicator of a problematic childhood than of journalistic excellence, I should think, and at any rate not to be taken too seriously as a professional ideal.

Of course, the truth part of the phrase is that media do exist to keep the coexistence of diverse opinions possible and the public space open to the diverse so that they can argue and debate with each other. If that doesn’t count as a good cause a good journalist should by all means get involved with I don’t know what does, just as, for that matter and for much the same reasons, democracy, the rule of law and human rights.

Verfassungsblog is an academic, not a primarily journalistic medium. Most of our authors are legal academics. Whether and when a good scholar should or may get involved with a good cause is periodically the subject of passionate debate. Most recently, Tarunab Khaitan, Professor of Public Law and Legal Theory at the University of Oxford, initiated such a debate in an ICON editorial. We have taken up this impetus with an ad hoc blog symposium, the proceedings of which I find exceptionally inspiring and highly recommendable (see below in the weekly review). Khaitan’s view is that it is wrong for scholars to be driven by the urge to achieve certain material results – not only because this contradicts the scholarly “role morality”, but also because it may do more harm than good to the cause itself.

The project of keeping science pure from external agendas always risks ending up either in tautology (Khaitan: “… a scholar’s engagement with morality must be, well, scholarly“) or in paradox: How is one supposed to get a grip on unscholarly scholarship as scholarship without tying oneself up in knots? Scholarship, like any social system, has developed techniques of de-paradoxification to deal with this problem. One way to do this is passing on the problem to morality, so that it guides the individual scholar to do the right thing, for which scholarship, operating with values of true and false, must keep itself blind in order not to go astray. Another is to demonstrate the inner dysfunctionalities and self-contradictions of unscholarly practice and thus make it indirectly observable and researchable again under the true-false distinction. This is also Khaitan’s approach: He does not stop at the tautology of accusing bad scholarship of being bad scholarship for doing bad scholarship (in his words: “radical scholactivism”), but makes a moral accusation: scholactivism, he claims, tends to make the world less just. And this can be linked to a diagnosis of self-contradictory behaviour: if this is so, then the scholactivist who nevertheless subordinates her research to her activist goals is acting paradoxically herself.


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Such techniques of de-paradoxification are familiar to legal scholarship from its very subject matter. In law, one constantly has to deal with the fact that a person may be legally entitled to do something that is unlawful nevertheless. Getting legal abuse of the law into view and under control is a paradoxical undertaking, and the defusing and unfolding of this paradox has characterised the development of law for hundreds of years. This process, with respect to private law, has recently been explored by Roman Guski in a fascinating book. I wish someone would do the same for (comparative) constitutional law. There is so much to be gained there.

Abusive Constitutionalism is the name David Landau coined almost ten years ago for what has since been the greater part of what occupies us on Verfassungsblog: the abuse of constitutional law – competences, rights, procedures, institutions – in order to weaken democracy. Authoritarian parties and rulers, advised by shrewd legal experts, use it to immunise themselves against political competition and to discredit their political opponents and to paralyse and level the pluralism of diverse political opinions and interests. Electoral law, parliamentary law, procedural law, the very constitution itself, you name it. All entirely legal, of course. So whoever wants to call out the abuse has to place herself outside the law, and thus expose oneself to politicization: Ha! Unlawful! They would say that, wouldn’t they? It’s all just another political attack, of course.

Legal scholars observe how the law observes things. For them, it is often easier than for the law itself to read the abuse of the law as such, to hold the abuser’s true intentions and the purposes of the law against such use of the law, and thus to mark it for what it is: unlawful. I think it is no coincidence that it was first and foremost legal scholars who so passionately raised the alarm about the epidemic of abusive constitutionalism in the last decade, not only, but also on Verfassungsblog.

The expertise of legal scholars has been in ever greater public demand in recent months and years. They possess the knowledge, the concepts and the argumentation techniques to make visible the damage done by the abuse of the law. They observe this damage, and then they get active to help avert it and seek publicity for what they observe and know. That is what makes them activists. Does it compromise their scholarship? Khaitan, as far as I can see, does not even make this claim. At any rate, it would still remain to be proven to be true. And I, for one, don’t see why it should be.

The week on Verfassungsblog

… summarized by PAULINE SPATZ:

The “obligatory vaccination” for measles for daycare children is constitutional, according to the German Federal Constitutional Court. ANNA-LENA HOLLO considers the decision to be science-based, realistic and balanced – not “proportionality on idle”, but a paradigm of fundamental rights jurisprudence.

After the Federal Constitutional Court declared the offence of promoting suicide as a business unconstitutional in 2020, the Federal Supreme Court has now reinterpreted an active act of killing as assisted suicide. As humanly understandable as the decision may be, its legal justification is questionable, says ANNE BALDAUF.

Can the state oblige academics to make their research openly accessible? And: who has the legislative competence in this matter? Since September 2017, a judicial review procedure is pending before the Federal Constitutional Court, which has remained silent ever since. HANJO HAMANN doubts whether this still counts as “timely legal protection”, especially since the court only has to answer one question of competence.

On 1 August, the ECJ ruled in the Sea Watch case: Italy was allowed to inspect two NGO-operated search and rescue vessels, but not to detain them if they posed no clear threat to safety, health or the environment. MATILDE ROCCA reports on the ruling, which unfortunately does not explicitly address the central issue of cooperation between states and private actors, i.e. NGOs.

The fear of a heating crisis due to a lack of gas next winter is great in Germany. That is why many are calling more and more urgently for the three remaining nuclear power plants not to be shut down at the end of the year, or even for reactors that have already been shut down to be put back into operation. PHILIPP SAUTER shows that this is not so easy.

In Spain, the governing coalition wants to tax windfall profits of banks and large energy companies. The bill could serve as an example for other European countries. JOAQUÍN URÍAS explains the political and constitutional background.

In Bosnia and Herzegovina, anger is growing at High Representative Christian Schmidt, whose electoral law plans would amount to a kind of ethnic gerrymandering, according to JOSEPH MARKO.

In Chile, the people will vote on their new constitution next week. The Constitutional Convention, which was supposed to represent the Chilean people broadly, was so diverse that its draft could not gain the support of a solid majority of Chileans. RODRIGO KAUFMANN on a process that could best be understood as an exercise in self-constitution – not of a political community, but of a pluralistic society.

The aforementioned blog symposium on Tarunab Khaitan’s critique of “scholactivism” in constitutional law includes contributions by ADRIENNE STONE, JOHN MORIJN, THOMAS BUSTAMANTE, BENOIT MAYER, VICKI C. JACKSON, LEONID SIROTA, MARTIN SCHEININ, CYNTHIA FARID & SERGIO LATORRE, LIORA LAZARUS and SAM BOOKMAN respond to this claim.

All the best, and see you next week!

Max Steinbeis

SUGGESTED CITATION  Steinbeis, Maximilian: The Good Cause, VerfBlog, 2022/8/26, https://verfassungsblog.de/the-good-cause/, DOI: 10.17176/20220827-061621-0.

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