The Language of Power
Moving beyond restrictive conceptions of constitutional law scholarship
Professor Tarunabh Khaitan’s ICON editorial on “scholactivism”, as well as his September 2021 Letten Prize lecture on “The Role of the Legal Scholar in the World” (which evidently formed its basis and provides instructive context) are unsettling. Underlying his critique is advocacy for a constitutional law scholarship so restrictive it throws out the truth and knowledge dissemination it purports to safeguard with the bathwater. Indeed, his vision of truly scholarly constitutional law scholarship appears exclusively self-referential internally, mainly reactive externally, and would in practice exist alongside rather than as part of the real world.
Although stepping aside and standing by may feel satisfactorily pure and avoids tensions as well as personal attacks in a post-truth world, it is not neutral – simply because any activity relating to constitutional law, active or passive, is inevitably a statement about politics and power. Instead, constitutional lawyers have a professional obligation to explicate in the public debate what forms the implicit basis of all conversation between them: the very relevance of the law to power and politics.
“Scholactivism”: Khaitan’s worry and examples
In his interesting lecture Khaitan explains that he worries about the post-truth society. Academics and the media are pillars and guardians of truth and verifiable facts, although they have distinct roles. Media serve the general public in the short term; scholarship is an expert-to-expert long-term endeavour. In today’s environment, a reorientation is required for legal academics about their own role, including about when, how, where and to whom to express themselves as scholars, including in the public domain. I could not agree more.
To make his thinking transparent, Khaitan introduces us to imaginary constitutional law scholars working in the field of non-discrimination law, in which he is a great expert with noted impact. One conducts research into the desirability of state liability for indirect discrimination. In making the case for achieving that, the scholar deliberately leaves out the legislative history of certain clauses and a discussion of several relevant precedents. Another conducts research at the request of an NGO with a specific request to argue for excluding a specific piece of legislation from constitutional review, which later makes it harder to publicly own up to some damaging unintended consequences without reputational harm.
In his lecture he mentions real-world examples too. For him a case in point is a 1991 Cass Sunstein paper that was not well researched and problematic for its impact. Without expertise on the area, it imposed a specific neoliberal political vision on constitution-making in post-communist eastern Europe. Khaitan also mentions a generation of US constitutional law scholars who, in their writing, implicitly targeted US Supreme Court Associate Justice Anthony Kennedy, given that he was the decisive swing-vote on most issues.
His central claim with regard to all of them is that contrary to a scholarly research agenda motivated solely by the search for truth and knowledge dissemination, they pursue(d) a “scholactivist” research-agenda. In his words that “is distinguished by the existence of a motivation to directly pursue specific material outcomes (i.e. outcomes that more than merely discursive) through one’s scholarship”.
Yet these examples only go so far. Imagine a scholar is unhappy with the presence of Article 16 in the EU Charter, the right to conduct a business. In her learned opinion this provision is an anomaly and only serves to give economic considerations a double dip. Her decision to write a paper ‘Why Article 16 should be scrapped’ is motivated to signal this worry. Yet, even if it were (initially) written at the request of the European Alliance To Save Labour Rights from Free Movement, is it non-scholarly per se? I don’t see why. It may well end up being a more valuable contribution than countless others wishing away or altogether ignoring Article 16.
The restrictive conception of constitutional law scholarship underlying “scholactivism”: a rejection
Does Khaitan then just take issue with poorly researched pieces presented as scholarship, thereby damaging the good name and standing of academia, rather than with the underlying intentions? Maybe. But his framing of the issue as one contrasting “activism” to “slow academics” leads him to draw much wider inferences. Because for him, unlike doctors developing vaccines in times of pandemics (and who are right to focus on a specific outcome), constitutional law scholars should be more cautious. After all, their expertise touches upon the content of constitutional law and politics. This risks a constitutional scholar, wittingly or unwittingly, becoming a political actor, a person eventually motivated more by power than by truth and knowledge dissemination – and therefore no longer a scholar.
Against that background, for Khaitan, scholars should place great(er) stress on careful writing, workshopping papers, and double-blind peer reviews. This facilitates revisability of one’s opinion between the four walls of the academic community itself. It takes time, Khaitan stresses, cautioning against immediate public comments that do not follow from deeply researched and research community-verified findings. This has the added advantage of it being easier to change your mind, because it will not lead to embarrassing public about faces.
Here I strongly disagree, both for reason of principle and practical implications.
A starting point is disciplinary honesty. Law is the language of power, power is the currency of any politics, and politics is mostly about distribution of public resources. Constitutional law, and any interpretation of it (scholarly or otherwise), by definition engages power, touches upon politics and has redistributive implications. And although a lawyer’s interpretation of what the law is may quickly be taken for a recommendation as to how to act, or how and when to limit political action, a hands-off approach is no less normative and no more neutral. After all, it will serve (or be taken) to silently support, endorse or facilitate the status quo. Rather than a worked exercise to pretend that this could all be avoided, constitutional law scholars should own this reality and theorise from there.
A starting point is accepting diversity within the discipline. Scholarship is more than just publishing. Some of us are better writers, others give better feedback, yet others are excellent teachers. We need each other and need to support each other. In any event, it really is all too easy to completely disengage and retract in an exclusive and self-referential world and tell journalists asking for a comment: “please don’t call now, I will let you know when I am done making up my mind with my friends”. That sidesteps rather than confronts relevant questions and eliminates impact. It will result in journalists putting down the phone with you (probably with a wide grin) and immediately call up lesser academics to explain what is going (wr)on(g). The general public will be worse off. Post truth is facilitated.
Personally, as I recently argued, I feel that lawyers, particularly constitutional lawyers, have a professional vocation to explain what the law is and to defend it, both internally in and public. But that tells us nothing about the how, where and when of doing so.
Moving beyond the restrictive approach: hard questions
Indeed, the most unfortunate aspect of thinking about these dilemmas in terms of “scholactivism” is not that it misqualifies and oversimplifies issues. It prevents discussions about real dilemmas. Here are some I struggled with myself over the years.
What if international judgments, as a matter of policy, are ignored in a state? Is your observation in the media that this contravenes the law a political statement, or a legal statement with political ramifications?
If you co-publish an academic analysis explaining that EU legislation linking receiving EU cash to compliance with binding rule of law standards, and an explanation of what percentage of funds could then be cut, how can you ensure the research question’s origin and methodology are clearly explained?
Should the role of a constitutional law scholar be conceived differently when drafting or signing open letters to support fellow academics or judges who were subjected to SLAPP-cases or suspended in violation of the law (like here and here), given they openly call on politicians to act?
More generally, should one approach talking to a journalist in the same way as teaching a class – laying out the basics, but deliberately avoiding drawing strong conclusions to those we instruct? Does the comparison with teaching go all the way?
These are hard questions, that merit further discussion.
Conclusion
This is an important debate. Framing it in terms of “scholactivism” produces more heat than light. What is needed is a reality-based discussion of the relation between (constitutional) law, politics and power, the specific role and responsibilities of lawyers (including constitutional law academics), and the different tasks constitutional law scholars have. Better thinking through ways of safeguarding the roles of academic expertise and the media, and their cooperation, in a world increasingly skeptical of both is essential. Constitutional law scholars should be subjects in, not just objects of that exercise.