Abstract
This article explores the idea that constitutional scholars may be thought of as constitutional actors analogous to integrity institutions and examines the normative implications of conceiving of constitutional scholars in this way. One implication of such an analogy is to strengthen academic freedom and protect the integrity and independence of constitutional scholarship. Moreover, viewing constitutional scholars as constitutional actors also sharpens our understanding of the ethical obligations of constitutional scholarship: of ‘academic self-awareness’ and of ‘decisional’ and ‘institutional’ independence. This duty of independence may be equally important to the public standing, expert status and integrity of the constitutional law discipline in this highly politicised populist moment.
I Introduction
Few constitutional scholars would dispute that Carl Schmitt played a legitimating role in the downfall of the Weimar Republic or that Albert Venn Dicey defined the UK and other commonwealth constitutions. Why then is there no general conception of constitutional scholars as constitutional actors? 1 It is now well established that ‘to understand how our Constitution and laws are practised, it is necessary to study and understand many more institutions in the system than simply the Judiciary’. 2 While the focus has broadened to include a range of constitutional office holders and institutions, 3 little has been said about the role and status of the constitutional law academy. 4
While formal constitutional recognition of constitutional scholars may be a step too far, the purpose of this article is to explore the idea of constitutional scholars as analogous to integrity institutions. The analogy is made because of the facilitative role of the constitutional academy to ‘well-functioning constitutionalism’ 5 and because of its constitutive role in shaping constitutions and constitutional doctrine. By conceiving of constitutional scholars as constitutional actors in this way, the article allows us to examine the normative implications of this analogy. As a form of resistance to authoritarian populism, 6 one implication of such an analogy could be to strengthen academic freedom and protect the integrity and independence of constitutional scholarship. Moreover, viewing constitutional scholars as constitutional actors sharpens our understanding of the ethical obligations of constitutional scholarship: of ‘academic self-awareness’ and of ‘decisional’ and ‘institutional’ independence. This duty of independence may be equally important to the public standing, expert status and integrity of the constitutional law discipline in a highly politicised populist moment.
II Constitutional Scholarship in a Populist Moment
Given the increased attacks on academic freedom globally, it should come as no surprise that those currently studying democratic backsliding are thinking about the role of the academy in the protection of constitutional democracy. Ginsburg and Huq argue that ‘one of the most serious threats to constitutional democracy…derives from a steady degradation of its public sphere, and in particular the disappearance of a shared universe of facts about which policy debate can occur’. 7 Within a populist political environment, academic scholarship is interchangeably vilified, discredited or glorified depending on whether it serves its general populist purpose. Indeed, we need look no further than the trial of Wojciech Sadurski, 8 and the attacks on the Crackow Institute of Criminal Law, 9 to see the scale of the potential threats to scholastic freedom. Whether in India, Venezuela, Poland, Turkey or Hungary, the threats to academic freedom from authoritarian populism are widespread and growing. 10
Attacks on academic freedom also manifest in less overt forms. A range of ‘discrediting’ techniques used in populist discourse are designed to erode the epistemic authority of the academy. Discrediting strategies manifest most commonly in assertions of a ‘free speech crisis’ within universities. These attacks have been growing across the UK, 11 US, 12 Canada 13 and Australia 14 over the last decade. 15 Discrediting strategies mirror populist campaigns against apex courts which are accused of bias when they stand in the way of executive action. 16 In the same way, the persistent characterisation of academics as ‘woke liberal elites’ is a powerful discrediting device in the current populist environment designed to caricature academics as partisan activists rather than experts in their disciplinary fields. 17
Despite an apparent volte-face with respect to scientific knowledge during the coronavirus pandemic, these populist discrediting strategies persist. While populist leaders such as Jair Bolsanaro have been particularly extreme, 18 the schism between scientific advisors and US President Donald Trump is now widening dramatically. 19 In the United Kingdom, the newfound deference to scientific advice has been notable. Nevertheless, it remains unclear whether early scientific advice was heeded, 20 and concerns have also been expressed about the independence and transparency of scientific advisors, 21 as well as the tendency for politicians to use scientific advice to deflect from political accountability. 22 In Australia, the government’s persistent pattern of discrediting scientific evidence on climate change appears to have shifted during the pandemic. 23
Looking beyond these extreme pandemic conditions, populism as a political discourse is unlikely to shift its core approach to academic knowledge. As Brubaker argues, populism—authoritarian and democratic—is at its core suspicious of claims to elite knowledge and easily characterises specialised expertise as out-of-touch elitism (particularly where it fails to support its ends): The populist style performatively devalues complexity through rhetorical practices of simplicity, directness, and seeming self-evidence, often accompanied by an explicit anti-intellectualism or epistemological populism’ (Saurette and Gunster 2011) that valorizes common sense and first-hand experience over abstract and experience-distant forms of knowledge.
24
In this politicised environment, academic freedom may not go far enough in protecting those constitutional scholars who are most likely to come into conflict with populist movements that seek to consolidate power. The fact that many constitutional scholars make propositions, as a matter of course, which may contest the power of the executive or other constitutional organs, makes the protection of their independent status particularly important. 26 In this sense, the idea of constitutional scholars as constitutional actors serves both to strengthen and to go beyond the general protections of academic freedom.
III Constitutional Scholars as Constitutional Actors
The constitutional academy can be viewed as analogous to ‘integrity institutions’ or ‘fourth branch institutions’. 27 Paul Kildea (in this special edition) builds on Ackerman and Tushnet’s view of integrity institutions as ‘protective’ of democracy. 28 He argues that integrity institutions ‘should reflect not only on their capacity to protect but also to facilitate…integrity, democracy or some other value’. 29 Constitutional scholarship is analogous to this category because of the central role that it plays to ‘well-functioning constitutionalism’ 30 and the facilitative role that it plays in a healthy democracy. 31
Vicki Jackson conceives of the broader academy in constitutional terms—alongside the press, libraries and scientific offices—as ‘“knowledge institutions”…that help provide the epistemic foundation for a successful democracy’.
32
For Jackson, ‘“[k]nowledge institutions” should not be understood as a branch of constitutional government, but rather as a necessary organ of constitutional democracy’.
33
As ‘organs of epistemic objectivity’, Jackson argues, ‘knowledge institutions play special roles in representative democracies’.
34
She accounts for this special role thus: [I]n a democracy the people as a whole—or at least a sufficient swathe of the people and of their elected representatives—need access to information to participate in governance—to be able to identify patterns of social and economic fact, as well as relevant national and world history that bear on current issues. Knowledge is needed to help develop and evaluate policy positions and distinguish claims that are well founded from those that are not. Knowledge…is needed to be to be able to resist manipulations, whether by those in high office, or running for high office, or foreign powers, or others, and—importantly—to be able to evaluate good faith arguments by opposing candidates for public office. Knowledge is needed to be able to engage in reasoned argument with fellow voters.…And knowledge is needed in order for the rule-of-law to be in effect and for the law to serve justice—so that laws, and how they are enforced, and what their effects are, can be known, and evaluated. In short, knowledge is needed for virtually all aspects of a constitutional democracy to flourish.
35
Two more recent declarations explicitly link academic freedom with robust democratic contestation. First, the European Parliament passed the Recommendation on defence of Academic Freedom in 2018 in which the democratic value of a free academy is confirmed: Academic freedom—including its constituent freedoms of thought, opinion, expression, association, travel, and instruction—contributes to creating the space in which any open and stable pluralistic society is free to think, question, share ideas and produce, consume and disseminate knowledge.
44
Academic freedom is essential for the pursuit and dissemination of knowledge, which is itself a public good. It is also a means for the promotion of a healthy democracy, and well-functioning civil society through the cultivation of informed, engaged and democratically competent citizens.
45
The best people to check whether a judge has worked within…constraints are those who are also trained in this technical process of reasoning and are independent of the judiciary. The Bar satisfies the first requirement, but is too closely entangled with the Bench to perform the oversight function adequately. The responsibility must therefore fall on legal academy. It is the legal academic’s duty to examine whether judicial decisions are adequately reasoned, whether they satisfy the bounded rationality of law and its justice. Academic criticism is an important check on judicial power in a democracy.
48
Beyond facilitating robust democratic and constitutional debate, constitutional scholarship is also constitutive of the constitutional order itself. Albert Venn Dicey has constituted the UK and other commonwealth constitutions, 50 while Sir John Salmond played a similar role in New Zealand. 51 The constitutive role of scholarship in the formation of constitutional rights doctrine in postwar Germany has also had implications across European constitutional cultures. 52 Smaller interventions by contemporary constitutional scholars may also prove to be of equal significance. John Finnis’s front-page article in The Telegraph during the Brexit debate prompted the government policy that prorogation was an appropriate response to an activist opposition in a hung Parliament. 53 Finnis’s standing as an ‘eminent Oxford Professor’ was referenced repeatedly in right-wing media as a form of constitutional legitimation for prorogation. 54 Indeed, it is the description of Finnis as ‘arguably the most distinguished lawyer of our time’ which continues to be used as a validation for reforms of the Supreme Court in the light of the Miller/Cherry decision. 55
Constitutional influence of the academy is in no way restricted to one side of the constitutional debate. For example, the arguments of Jeff King, Nick Barber and Tom Hickman led directly to the legal application in Miller/Cherry and were accepted by the Supreme Court. 56 Going further back and to the shape of legislation, constitutional scholars were constitutive of the UK New Labour constitution—in particular the UK Human Rights Act in 1998. This particular set of propositions, by scholar Francesca Klug, became a matter of legislation that is yet to be repealed. 57 Indeed, this legislation may be said to be a fundamental shift in constitutional and judicial culture in the United Kingdom. Outside of the UK, the work of constitutional scholars in Australia around the Uluru Statement from the Heart, 58 and the activism of US constitutional law professors around Trump’s impeachment proceedings, 59 are just two examples of such engagement. There is also no doubt that the constitutional law academy played a formative and central part in the drafting and continued interpretation of the South African Constitution in the 1990s. 60
These are but a few random examples, but the message is clear: whether indirectly—through teaching and training of future lawyers (and politicians), 61 publishing research, writing textbooks, practitioner handbooks and constitutional commentaries—or directly through active public engagement—constitutional scholars facilitate robust constitutional debate and shape the constitution. They are part of the formation and development of constitutional texts, doctrine, interpretations of doctrine and conventions, evaluation of judicial pronouncements on doctrine and constitutional arguments before courts. Their diverse contributions constitute part of the constitutional accountability fabric and shape the environment in which constitutions are formed.
This is not to ignore that constitutional scholars may commonly act as constitutional office holders such as government advisors or constitutional advisors to parliamentary committees (eg legal advisor to Joint Parliamentary Committee). But these roles come with a particular mandate and official responsibility, and it is now broadly accepted that these officers are constitutional actors in the formal sense. 62 It is the point here, however, to provoke a discussion on the idea of constitutional scholars, when acting outside of any official designated capacity, as constitutional actors. The argument to characterise them as such, and as analogous to integrity institutions, flows from their expert and pervasive influence on the shape of the constitution, their accountability role in critiquing and engaging with official assertations regarding constitutional law, their facilitation of robust democratic and constitutional debate, 63 and their contribution to ‘well-functioning constitutionalism’. 64
IV The Duties of Scholars as Constitutional Actors
Everything I know about the Constitution and its values, and my review of the evidentiary record, and here Mr Collins, I would like to say to you Sir, that I read transcripts of every one of the witnesses who appeared in the live hearing, because I would not speak about these things without reviewing the facts, so I am insulted by the suggestion that as a Law Professor I don’t care about those facts. 65
On the 4th of December 2019, before the House Judiciary Impeachment Hearing, Professor Pamela Karlan of Stanford Law School defended her objectivity as a Law Professor and her capacity to evaluate the evidentiary record in the light of her knowledge of the US Constitution. It was a confrontational moment, as Karlan addressed her epistemic capacity to evaluate the impeachability of President Trump. Karlan’s testimony was a manifestation of exactly the principle that Jackson foreshadowed. Given the importance of the ‘knowledge ecosystem’ to the epistemic foundations of democracy, Jackson argued that knowledge institutions should be governed by the principles of ‘objectivity’ and ‘decentralisation’ (described as the encouragement of a diversity of sources and open and free exchange of ideas). 66
Jackson acknowledges that objectivity may well not be an achievable end state of the pursuit of knowledge, resting her case on an aspiration to ‘better and more accurate understandings of realities’.
67
Indeed, she asks whether ‘constitutional democracies [might] articulate a principled commitment to…support gathering and disseminating objective information’, ‘promote aspirations towards objectivity by government officials in evaluating facts’, and whether ‘academics, many of us steeped in respect for the value of recognizing a diversity of perspectives and viewpoints’ can ‘find a way at the same time to embrace and articulate legal frameworks for promoting more reliable, rather than less reliable, understandings of important social and scientific facts’.
68
Jackson goes on to suggest that: [P]romoting respect for the goals of accuracy and objectivity in identifying facts relevant to public decisions may well entail articulating the grounds for respecting particular disciplinary norms—whether academic, journalistic, or judicial—of proper research, reporting, or factfinding, and understanding the purposes for which facts asserted in these different domains warrant respect in public decision-making domains.
69
Segall and Jackson’s interventions are indicative of a larger debate about the role of law professors in the current populist moment. Indeed, in the UK, there are misgivings articulated about constitutional scholars working within politically partisan think tanks such as Policy Exchange. As Paul Craig argues, ‘the [Judicial Power Project] seeks to exert political influence. That is readily apparent from its placing within the larger Policy Exchange network, from the fact that the Secretary State for Justice turns up when the leading JPP theorist is giving a lecture and from multiple other sources on the site’. 73 This discomfort suggests a desire to find the line within the constitutional academy between expert knowledge and partisan political activism. This line between the partisan political speech and the academic expertise is implicit in Stone’s distinction between academic freedom and freedom of speech. For Stone, ‘academic inquiry is pursued through distinct disciplines, each of which is characterised by methods and standards designed to ensure expertise and independence in research’. 74 Moroever, the ‘constraints of the disciplines, the commitment to academic methods and standards are designed precisely to address the kinds of problems that bedevil public discourse’. 75
How then, do we go about determining the line between political activism and constitutional expertise? Max Weber, in his famous essay Science as Vocation, confronted this question. For Weber, the ‘prophet and the demagogue do not belong on the academic platform’. 76 He was emphatic about the distinction between academic scholarship, or ‘science’ as he called it, politics and religion. 77 Weber viewed the scholar as teacher, which in turn gives rise to a particular set of responsibilities relating to the presumption of authority and expertise. So while ‘the prophet’ and ‘demagogue’ could speak ‘openly to the world…where criticism is possible’, teachers ‘stand opposite’ their audience, who have ‘to remain silent’. 78 Thus, Weber’s conception of Wissenschaft rested on the ideal of ‘value-freedom’ as an ‘elementary duty of academic self-control’. 79 This duty was closely aligned by Weber with ‘the duty to observe intellectual honesty and integrity’, which remained central to an ‘authentic Weltanschaung’ and which was ‘the only specific virtue that should be taught in a University’. 80
For Weber, the notion that scholars are all morally bound by the pursuit of ‘value-freedom’ did not necessarily result in the pursuit of technical ‘objectivity’ as an end of scholarly work. On the contrary: [O]ne of the primary functions of ‘value-free’ Wissenschaft is not merely to produce good technical work…but to lay bare the comprehensive value-context within which both the academic and the users of Wissenschaft (the student and the politician) must operate: that is, the ‘struggle’ of a plurality of ultimate values and value-axioms.
81
The values that Jackson and Segall aspire to are well captured in Weber’s conception of academic self-awareness. This notion captures a range of vocational and ethical aspirations in a discipline characterised by inherent normative contestation. 84 Academic self-awareness is expressed not only by rendering one’s own value framework transparent but also in good faith engagement with opposing value arguments. It neither requires that value neutrality can ultimately be achieved, nor does it go as far as adopting the post-structural practice of announcing one’s positionality. 85 Much like Jackson’s idea of objectivity and decentralisation, or Bernard Williams conception of ‘truthfulness’, 86 academic self-awareness is the practice of engaging with a diversity of value claims with ‘intellectual honesty and integrity’. 87
V Conclusion: The Duty of Independence
With scholarly expertise comes the claim to authority. That claim was on full display at the US impeachment hearing. The premise of the testimony provided, even where they disagreed, was that Law Professors are judged by their peers, and the broader public, to be experts. Scholarly expertise is protected by academic freedom, and it is also recognised publicly as a claim to authority in democratic discourse beyond the internal audience of the academy. Academic self-awareness must thus include a consciousness of the use of their authority in this public realm and the potential for that authority to legitimate, or conversely undermine, constitutional propositions: in short, the power to shape constitutions.
Academic authority and expertise is symbiotic with academic self-awareness. As Williams so aptly puts it: ‘the authority of academics must be rooted in their truthfulness in both respects: they take care and they do not lie’. 88 But of equal importance to the public trust in academic authority is trust in academic independence. Certainly, if we think of constitutional scholars as constitutional actors that are analogous to integrity institutions, then it becomes even more important that academic propositions, conclusions and reasons must be formed independently. The independence of integrity institutions is described as their ‘single greatest hallmark’. 89 As Appleby explains, this independence must be capable of being exercised in the subjective sense but also in the objective sense: that the public can be confident of their independence. 90 Independence must also be ‘decisional’ in the sense of having a ‘personal independence of mind’ and ‘institutional’ in the sense of being operationally independent. Institutional academic independence may require higher scrutiny where research and writing is funded by an institution with particular political goals. 91 Decisional independence may also be undermined where improper influence is exercised upon the academic expert.
While individual and institutional independence underpins academic freedom, it also constitutes a public ethical expectation against which the constitutional academy is held accountable. As Kildea argues, ‘the flipside of independence is accountability’. 92 The freedom and professional accountability of constitutional academics consequently needs reconciliation. As Tushnet notes, ‘the tension between accountability and independence is not unique to judges. Whenever we design institutions to commit some substantial amount of public power to professionals—scientists or social workers, no less than lawyers and judges—we do so because we want to combine accountability to the profession’s norms with accountability to the people’. 93
Scholarly authority is, and ought to be, intrinsically connected to its independence both decisionally and institutionally. Simply put, academic authority should not be bought and sold for the delivery of convenient ideas or shaped merely in the pursuit of government, corporate or institutional policy. It ought to be the product of an independence of mind and conviction. Consequently, for the claim to authority to be legitimate it ought to be exercised independently of political power. ‘Freedom from political interference’ is consequently required, for example in the Principles of Scientific Advice for Government in the United Kingdom, 94 a principle which is now urgently essential (and more frequently tested in populist environments) in the current coronavirus pandemic. 95 This crucial element of academic independence is central to the notion of academic credibility and the capacity of knowledge institutions to inform democratic decision-making.
For these reasons, public confidence in academic independence must be safeguarded by a strong professional and public commitment to a duty of disclosure, a common practice in academic writing. 96 The objective is to make transparent when an academic is writing in a non-independent context or for specific partisan purposes. The objective of this disclosure is to distinguish transparently between independent scholarship which engages in a political or constitutional debate on the one hand and scholarship which acts as a mouthpiece for particular political influence (government, think tanks, foundations, political parties and trade unions etc) on the other. Finally, there may be a case for a special and more exacting duty of dislosure where scholarship is conducted on behalf of the executive by direct arrangement. Indeed, the duty of disclosure is at its most important when constitutional scholarship legitimates the case for an increase in constitutional power. Simply put, while independent constitutional scholarship may itself be supportive of claims to constitutional authority, it must be distinguishable from scholarship which has been gamed to legitimise such authority. In short, while the independence of constitutional scholars must be safeguarded by the protections of academic freedom, constitutional scholars as constitutional actors can be expected to act independently of all actors within a constitutional order.
