How to improve Oxford’s interviews

In my last post, I suggested that we can’t understand the persistence of the Oxford admissions interview without understanding its ceremonial function. It is an initiatory rite that expresses and secures the power of  tutors who get to select which undergraduates they would like to teach.

This conjecture has not met universal favour among my colleagues, or at least not among those who are interviewing this week.  They say, rightly, that I exaggerate the lack of uniformity among subjects when I describe our system as ‘chaos’.  Isn’t our Common Framework for admissions a steadying force? Others mention that this is ‘not a good time’ to cast doubt on the fairness or effectiveness of Oxford admissions.   And several tell me they are adequately warned against unconscious bias and that they are not, in fact, conscious of any unconscious bias in their own interviewing.

There is no doubt that admissions interviews could be, and historically have been, much worse (including when I used to do them).   Still, I think we should abandon them, for the reasons I gave.

Oxford knows how to admit talented students without the ritual. That is how we already admit people to our elite, tutorial-taught, postgraduate degrees, including the B.Phil. and B.C.L.: centrally, on the ‘paper file’, and without interviews.  Many of them come to Oxford without ever having had a tutorial or anything like one, yet they learn how to learn in our system.   Indeed, many of their tutors gave their first Oxford tutorials without ever having had one; they too learned. Yet we persist in the fiction that only by seeing the cut of their jib can we be sure that applicants can work the magic of an Oxford tutorial.

In any case, if interviews are to persist, there is one way we can improve them: No one should interview those they will have the blessing (or burden) of teaching: nemo iudex in causa sua. If an applicant really is incapable of learning in our system, let that determination be made by someone other than the tutor who will be charged with trying to help them.   This argues for more centralized, faculty- or department-led, ‘blind’ interviewing.    Perhaps it even argues for the inclusion of non-specialists (academics in other subjects, or alumni, or even students!) on our admissions panels.

I do not pretend that eliminating or improving interviews will make Oxford more representative of the communities we serve. For that, more drastic measures are needed.   I shall sketch the case for one of them in the New Year.

In the meantime, all good wishes for the holidays, and my sympathies to those of you who are interviewing, or being interviewed. Best of luck!

Why Oxford’s admission interviews persist

A week from now, one of Oxford’s annual rituals begins.   Clueless teenagers arrive in force to be interviewed for an undergraduate place.

I call it a ‘ritual’ because admissions interviews are not really functional; they are ceremonial.  They take place in buildings that, unless you live in Downtown Abbey, seem utterly alien.  Directions are given in code (‘call at the Porter’s Lodge’, ‘meals will be taken in Hall,’ ‘await instruction by the Old Smoking Room’…). The interview is a minuet in which smiling tutors and grimacing candidates dip and swing around questions that are supposed to distinguish minds that are truly graceful from those that are merely trained.  None of it makes our admissions process more accurate, reliable, or fair.

Oxford has many rituals that are harmless, even valuable: gowns, punting, Evensong. The interview is not among these.  It adds expense, work, and stress for no benefit. But compelling empirical evidence of unconscious bias, negative and positive, in face-to-face interviews has no impact on the high priests of the process, the admissions tutors. Some of the most inquiring and skeptical minds on the planet display a touching faith in their own ability to spot a diamond in the rough while never being dazzled by the flash of fool’s gold.  The ritual is hated by applicants, hated by the press, and increasingly hated also by the government.

So why does it go on? Few are actually proud of the fact that, year after year, we admit a vast disproportion of applicants from private (i.e. fee-charging) schools. Only 6.5% of the cohort are educated in such schools, but last year they made up 41% of Oxford’s intake. (The average for all UK universities was only 10%.)   And few of my colleagues are unaware that their counterparts around the world do not have the burden of interviews.

In part the explanation is stasis: ‘”How many Oxford dons does it take to change a light bulb?” “–What do you mean, ‘change’?”’

In part it is chaos: Oxford is a federation of 38 universities, its colleges, without a coherent overall admissions policy.

But I’m afraid that another important part of the explanation is power. Admissions tutors do not want to yield the power to choose the students they would like to teach over the next three or four years of their careers. The interview is a ritual that expresses, secures, and celebrates their power.

It is not generally understood that, at Oxford, those doing the interviewing are those doing the teaching.  Nor is it understood that those at the top of the hierarchy, the Professors, normally have no obligation to teach or admit undergraduates.   It is the Tutorial Fellow, overworked and often underpaid, that does the heavy-lifting. (Oxford, unlike many leading universities in the US or Canada, has not yet shunted undergraduate teaching onto graduate students.) That is why they are so keen to keep control over those they admit, and why a dysfunctional and damaging ritual continues.

But the secret is starting to leak out. British author Alex Preston, writing in what is, I think, intended to be a defence of the interview system, openly acknowledges that he was crammed for it: ‘I was prepared for my interview by the genial headmaster of the Sussex state secondary I attended. We met most mornings in the weeks leading up to that fateful October day and he’d fire questions at me about Eliot, Pound, Woolf and Joyce…’

Preston is touchingly unaware how few applicants have a ‘genial headmaster’ able to coach applicants for ‘most mornings’ over a period of weeks.   But Preston does have enough self-awareness to figure out what the Oxford interview is really for:

the interview was about my potential tutors deciding whether I was a pupil who would manage to stick out the three years of essays and exams, whether I’d bore them in tutorials, or infuriate them…’

An ineffective ritual that leaks bias into  admissions is sustained by the tutors’ desire not to admit students who might ‘bore’ or ‘infuriate’ them (or, I suppose, who might threaten or offend them).  Even our students have started to figure it out.

What is to be done?   We are unlikely to abolish interviews (see above, under ‘change’ and ‘chaos’); but there are  ways to limit their damage. I shall explain two in the next post.

How Spain violates the rule of law

The least important fact about the prospect of Catalonia declaring independence from Spain is that such a declaration would be void under the Spanish constitution.   The most important  is that Rajoy’s government seems willing to hold Catalonia against its will, and even by force.

It unthinkable that Canada would attempt to hold Quebec captive should it vote to leave the federation. It is unthinkable that the United Kingdom would send in  troops to keep control of Scotland or Northern Ireland.  Yet neither state has any constitutional provision for regional or national independence.   The Canadian federal government, though formally limited in its jurisdiction, has vast powers to invade provincial domains. The Westminster Parliament is  unconstrained, and could abolish the Scottish Parliament entirely. It is not any legal difference that explains why neither Canada nor the United Kingdom would behave in such ways. It is a matter of political culture and public morality.

It is true that Canada and the United Kingdom have a deeper and longer loyalty to democracy than does Spain—but that is not the whole story. The larger difference is over another ideal, that of popular sovereignty. It is ultimately for peoples to decide by whom they shall be governed.  Popular sovereignty includes the right to make that decision wrongly, and in some cases even to make it in a way that impedes democracy. If Syrians were to freely vote for a theocracy, no other nation should intervene to prevent them.

Some people admit only  a thin version of this ideal. They say only colonized or oppressed peoples are entitled to self-determination; everyone else must accept their lot and work within existing law, no matter what.  Canadians and the British reject that view. They do not think Quebec or Scotland have the right to decide their futures because they are oppressed by their central governments.   On the contrary, they would fiercely deny that proposition and yet  still respect the will of the minority nations within their borders.

But what about the rule of law? Must the illegality of any unilateral declaration of independence violate this ideal?  The question is more complex than some suppose.

First, if there is any conflict between popular sovereignty and the rule of law we still need decide which should prevail. The idea that existing law should always rule, and  be obeyed, no matter what is a repugnant principle. It is one that kept Spain under a dictatorship for years.

Second, and more important, it is not obvious that an unconstitutional declaration of independence on the part of Catalonia would violate the rule of law. To see why, think again about Canada and the United Kingdom. Each not only tolerates but makes possible a lawful route to independence for  minority nations.

In Canada, a route to the independence of Quebec is secured by the authority of the 1998 Supreme Court decision in the Reference re Secession of Quebec. The decision did not amend or reinterpret the Canadian constitution.  It directed how Canada’s government should respond to any declaration of independence: by good faith negotiation. In the United Kingdom, a lawful route to independence is secured by Parliament’s demonstrated willingness, in Northern Ireland and in Scotland, not only to respect the result of a border poll or an independence referendum, but to provide for, regularize, and recognize such votes. Canada and the UK make possible, and lawful, what Spain leaves to pressure and violence.  Spain’s fundamental law renders independence unlawful.  It  takes a difficult political eventuality for which many countries must somehow provide and puts it beyond the realm of legality.

So is Madrid, not Barcelona, that violates the the rule of law.  In denying any lawful route to independence, in disrupting polls, in assaulting voters, and in threatening to remove the regional government of Catalonia, Spain also shows contempt for one of the central ideals of the European Union.   And, in refusing to condemn this, the European Union  collaborates in an attack on popular sovereignty, and on the rule of law itself.

 

 

 

Why it is hard to be a campus conservative

When the right claims that US universities have been taken over by ‘liberals’, and that faculty and students of ‘conservative’ opinions are afraid to speak up, they do not mean that its campuses are now swamped by people who think we should restrict liberty only to prevent harm to others, or who demand that social inequalities benefit the worst-off. They mean American universities are full of people who believe things like this:

  • Species arose through natural selection.
  • No author of any gospel ever met Jesus.
  • Homosexuality is a normal variant in human behaviour.
  • The United States lost a war against Vietnam.
  • Human activity is a significant cause of climate change.
  • The United States has worse public health than do countries with nationalized health care.

Even more threatening to conservatives, however, is not these individual claims which are endorsed by all but a minority in serious universities. It the dominance of  habits of thought, modes of inquiry, and sensibilities of outlook that lead people to these conclusions. But none of this is because US universities are bastions of liberalism. It is because they are universities.

Of course, as Mill explained, every society should tolerate some truth-deniers. (He went further. He said that if a society lacks truth-deniers it might invent them, to keep us all on our toes.) But Mill never said their place is in universities, or that it falls to universities to provide ‘safe spaces’ for those whose political identity is bound up with  ignorance and superstition.  A university must tolerate, and even welcome, those who follow evidence and argument to conclusions that are false or unpalatable; but it may reject those who seek a platform for hatred or deception.  That is why it counts counts against Middlebury College when it shouts down Charles Murray but it counts in favour of Berkeley when it excludes Milos Yannopoulos.

That means universities can never be comfortable for a certain kind of conservative.  Those who need the lecture hall to flatter their personal convictions are bound to feel lonely and misunderstood.  Those who think views in the college should mirror votes in the electoral college are bound to feel cheated.  Maybe they can take comfort in the welcoming company they can find in America’s churches, legislatures, and even its courts.  But they should expect only argument from its universities—not speaking with a single voice, but speaking in that irritating way that universities do: insisting on belief that is proportionate to evidence, and on standards of reasoning that are neither liberal nor conservative, but merely human.

How to make your gay students uncomfortable

Professor Louise Richardson, the Vice-Chancellor of Oxford University, is quoted as giving the following awkward if well-intentioned defence of free speech on campus:

I’ve had many conversations with students who say they don’t feel comfortable because their professor has expressed views against homosexuality. (… ) And I say, ‘I’m sorry, but my job isn’t to make you feel comfortable. Education is not about being comfortable. I’m interested in making you uncomfortable. If you don’t like his views, you challenge them, engage with them, and figure how a smart person can have views like that.

In later qualification, Professor Richardson explained that she wasn’t talking about ‘many’ conversations here at Oxford.  I believe that.   I also believe Professor Richardson knows her legal obligations under the UK Equality Act to ensure the university is a comfortable place for its LGBT communities to do what we are all here to do: to teach, to research and to learn.  In any case, most of what needs to be said to remind her of that obligation, as well as her obligation to defend academic integrity from incompetence and quackery, has already been said.

Except, I think, for two points.

First, how does it come to be that any university teacher is expressing ‘views against homosexuality’ in a class?  I’m baffled. Maybe it was a seminar on human sexuality, moral philosophy, or human rights law.  But what if it was on quantum mechanics, modal logic, or numerical analysis? Maybe a university policy on sex discrimination or free speech was under discussion.  But what if it was merely that the rainbow flag was flying, and that gave the professor a homosexual panic attack? These distinctions matter.

I expect my gay law students to be willing as anyone to test the view that sexual orientation should be a prohibited ground of discrimination, or to be able to assess arguments about same-sex marriage. I do not expect them to have to put up with the casual homophobia of everyday life, with irrelevant or biased comments or examples, or with the stench created by some professor’s religious incontinence.

Second, where debate about homosexuality is relevant, it does not fall only on students to tackle false, ill-informed, or unsympathetic views on the part of teachers. And it certainly does not fall mainly on gay students to do so. It falls on all of us, starting with the Vice-Chancellor.

In my own fields, there are only two or three faculty whose homophobia intrudes in their work. Their disapproval of homosexuality is usually gracious, emollient, and even, in its twisted way, ‘reasoned’. I am less troubled by them than I am by pusillanimous  colleagues, tenured liberal faculty who regard such views as outrageous or pathetic, but who never dare put pen to paper, or even a hand in the air, to join in the argument and, in that properly academic way, help make their gay students more comfortable.

As Professor Richardson says, ‘If you don’t like his views, you challenge them, engage with them’.  But she should also have said, to her colleagues as well as to her students, ‘and this means you.’

Donald Trump, Laura Kipnis, and the Intolerable

No one I know who voted for Donald Trump has told me that he (or, conceivably, she) did so.   But then I hang out in the wrong circles: lawyers, academics, immigrants, gay people, and adults who are able to read and write. Still, I am sure there must be some. I suspect several of my rich American friends, most of the constitutional ‘originalists’ I know, and far too many ‘Christians’.

None of these actually approves of Trump, his values, or his conduct. On the contrary, they held their noses when voting, because they thought the alternatives worse, and because they thought Trumpism would secure the things they do approve: the wealth and power of the rich, a Supreme Court free of liberal-minded people, and a country in which women and LGBT minorities know their place.   That is to say, the sort of people I know who voted for Trump did so, not because they approved of him, but because they were willing to tolerate him.

Now, that does not eliminate, or much mitigate, their moral responsibility in helping support one of the most unjust, corrupt, and vile regimes of any aspirantly democratic society.   They share in the blame for its increasing corruption, not because of what they favour, but because of what they are willing to tolerate in the name of what they favour. They tolerate the intolerable—and mostly they still tolerate it—and that is wrong.

Which brings me to Laura Kipnis, and her illuminating, powerful, and controversial polemic, Unwanted Advances: Sexual Paranoia Comes to Campus.   Daring to question some complaints against a Northwestern professor hounded out of his academic post as a result of allegations of sexual misconduct—and, more important, daring to question the fairness of some universities’ procedures created to address sex discrimination—Kipnis  now finds herself exposed to a variety of complaints and lawsuits, essentially for supporting, or at least tolerating, the intolerable.

There are reasons to doubt that these claims will succeed.   But even if they fail, many will urge that this is because free speech, academic freedom, and procedural fairness are, in the US, treated with more affection than is gender equality. The more we insist on procedural fairness—a presumption of innocence, a right to confront one’s accusers, and to test their evidence—the easier life will be for harassers and rapists, and the harder for victims.

That is true, and because (alleged?) harassers and rapists attract little sympathy, it is a truth that dominates discussion about sexual predators on campus. After all, whose side are we on?

It is a good question. But a good answer to it should mention, not only the interests of the (alleged) victims and the accused, but also a group that no one ever mentions: the bystanders.

A graduate student whose instructor or supervisor is suspected of sexual misconduct will attract  suspicions.   Even when, and especially when, she is not a complainant, it may be assumed that this is because she is compliant. Or, if not compliant, then at least tolerant of a supervisor who is a harasser. Now, graduate students don’t have a lot of power, but most of them have enough power to ditch a supervisor who behaves in such ways. They do not need to show that he assaulted them. It is enough not to want to work with someone who assaults other students.   One willing to work with such a person when she could change that can fairly be assumed to tolerate his conduct. And, like voting for Trump, this is to tolerate the intolerable. (‘I know he is a sexist—racist, homophobe, adulterer, liar….—but he really is the world’s expert on the Roman Law of Dogs, so it is fine for me to keep working with him.’)

And this takes us back to procedure. A false accusation of harassment, racism, homophobia, infidelity… damages, not only the accused, but those who, in virtue of their own decisions, can  be supposed to tolerate the accused’s behaviour.   So fair and accurate procedures are important, not only for the sake of those who may be wrongly accused, but also for the sake of innocent bystanders, who may be wrongly accused of tolerating the intolerable.  It is time for them, and not just the wrongly accused, to speak up in favour of fair procedures.  They too have an interest at stake.

 

 

 

 

 

 

On Judicial Plagiarism

It is an open secret that judges sometimes plagiarize from submissions by the lawyers before them, and even from articles and books by academics.   With respect to the latter, they are often aided and abetted by their clerks—law students working with them as research assistants.

Unlike scholarly or literary cheaters, the worry about judicial plagiarists is not that they undermine the research process, violate authors’ ‘moral rights’, or steal someone’s intellectual property. Judicial plagiarism is worse than any of these. It undermines the rule of law and the independence of the judiciary. A judge who knowingly or recklessly reproduces words or arguments of others as if they were his own may not be making his own decisions. If discovered, this undermines public confidence that the judiciary can be relied on to think for itself.

Still, we know judicial plagiarism occurs. We also know why. Courts are underfunded and under-staffed; there is far too much work; many judges struggle with an impossible docket.   So the temptations to silently lift others’ work can be powerful.   Some lifting will be obvious.   A claimant will not fail to notice if a judge copies out page after page of the respondent’s pleadings, interspersing phrases like, ‘as we can clearly see’, or ‘ surely the better view is….’ But unacknowledged material that a clerk, or judge, copies without attribution from sources on Westlaw or Google is harder to spot, and can silently infiltrate judicial decisions.

This is why we should be concerned by reports of plagiarism on the part of Trump’s nominee to the US Supreme Court.  Judge Neil Gorsuch’s 2006 book, The Future of Assisted Suicide and Euthanasia , has been shown to contain passages and descriptions offered, without citation or acknowledgement, as if they were his own, but which were taken from other authors. That book was in turn based on Gorsuch’s 2004 thesis, submitted for a degree at the law school where I teach. It can only be a matter of time before someone downloads the thesis from the Oxford University Research Archive, to see whether it also contained the passages impugned in the press reports on his book.

If it did, and if Gorsuch were still an Oxford law student, he would be subject to the jurisdiction of University, which unambiguously prohibits plagiarism.  It does not matter whether silently copying others’ work is intentional or not; it does not matter whether it is done with the tolerance of those copied; it does not matter whether the passages copied are central to an argument or peripheral.  At Oxford, as at most other universities, the wrong is in the misrepresentation. It is an offence of academic dishonesty.

There is, of course, an important question of degree to attend to.  There is much worse plagiarism around, even in our universities.  And plagiarism in Gorsuch’s book has only been alleged in a few passages, though one of them is fairly extensive. But why is there any at all?  These passages seem to have survived an awful lot of scrutiny. In writing a thesis, submitting it for examination, revising it for publication, responding to editorial comments, and correcting texts and proofs there are many opportunities to spot, and correct, honest mistakes or omissions.  Indeed, it is not too late to do so even now.  So why the silence from Gorsuch and all the loud denials from his apologists?

Here at Oxford, our chief disciplinary officers, the Proctors, do not merely have a reactive role. They have broad powers they must use, not only to enforce our regulations, but to prevent future breaches of them. Why is this important? Gorsuch is no longer a member of Oxford University, so the Proctors have no enforcement jurisdiction over him. But they can and must act to prevent misconduct on the part of current students or faculty.

They should be concerned, then, that Gorsuch’s former Oxford supervisor has provided a statement to the ‘Gorsuch team’ denying any plagiarism in the book:

Having reviewed the examples provided by BuzzFeed News to the Gorsuch team, the professor who supervised Gorsuch dissertation, Emeritus Professor John Finnis of Oxford University, provided a statement to the Gorsuch team, concluding, “[I]n my opinion, none of the allegations has any substance or justification. In all the instances mentioned, Neil Gorsuch’s writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he and I work.”

This opinion has been widely republished and read, not only by the politicians for whom it was written, but by law students around the world.  And this opinion, coming from such an influential scholar, sends the wrong message to young lawyers and scholars.

If by ‘the field of study in which [Gorsuch] and I work,’ Professor Finnis means university research in law or legal philosophy, then his claim is unfounded. Oxford University’s regulations and guidance to students, and years of interpretation of  them by the Proctors and others, put this beyond doubt.   But perhaps Finnis means that lower standards of integrity apply to law books than to law theses? I do not think that is true either; but it is in any case it is the standards of our University that our students need to comply with, now and in the future.

For my own part, if ever I encountered plagiarism in work by one of my own students I would insist they revise their thesis to include full acknowledgement and citation, using it as a ‘teaching moment’ to explain why it is critical to get this right, especially for lawyers. Legal citation is, as they say, not exactly rocket science: misattributions or non-attributions, if not accidental, suggest a cheater seeking to gain advantage from the work of others, or someone who has contempt for academic culture.

Good judges are sensitive to the further issues at stake. In a British Columbia appeal against a trial judge’s decision that lifted wholesale from one the parties’ submissions, Mr Justice Smith wrote,

Trial judges are busy, and there can be cases… where a party’s submissions so accurately reflect the trial judge’s reasoning that nothing would be gained by postponing other pressing work in order to rewrite the reasoning and conclusions in the judge’s own words. However, judges who are tempted to prepare reasons for judgment in this way should be acutely aware they may create a perception that they did not reach their decisions independently. Such a perception would tend to undermine public confidence in the impartiality and independence of the judiciary generally and would bring the administration of justice into disrepute:

Of course, an academic book or article is not a party’s submission, but for a judge to rely on it without citation would raise similar worries.   Indeed, that case would be worse for, as I mentioned above, judicial plagiarism of that sort will be a lot harder for the parties and others to detect. Given that it can always be avoided by a mere footnote–by a moment’s attention–failure to provide one is wrong.   That is why we demand it of our students, our judges, and ourselves.

When writing as an academic, Neil Gorsuch did not have a trial judge’s excuse of the extraordinary pressures of work. He was not copying from submissions others had read, but from authors most readers would not even know. With the leisure of the ivory tower, and with no one but scholars depending on his writing, Gorsuch failed an easy, elementary test we demand of every student: acknowledge all your sources–every single one–truthfully and fully. How should we expect him to behave when the stakes, and temptations, are higher?

Should Parliamentary Sovereignty Trump Popular Sovereignty?

On June 23rd the UK referendum on membership in the European Union delivered a clear, if narrow, result: the country should leave. Much still remains open, but as far as that issue is concerned, the matter is decided. I’m sure that British voters had no view about which mechanism would transfer their decision into law; but they understood that something would. No one supposed that a clear result might be treated as a helpful hint to politicians, or as a preliminary comment in a national seminar on the constitution.

Today’s judgment in the High Court repudiates that understanding. (R (Miller) v Secretary of State for Exiting the European Union). Lord Thomas of Cymgiedd CJ, Sir Terence Etherton MR, and Lord Sales decided that the UK executive lacks any power to transmit the will of the people into law by triggering the notification procedure for exit that is outlined in the EU Treaty. The court holds that the absolute sovereignty of Parliament must be respected, and that such prerogative power as the executive has to act in international affairs, including  treaties, can never repeal rights in domestic law. So Parliament must still decide whether to leave the EU. The matter remains open.

The breadth of the doctrine is breathtaking. The court does not merely say that Parliament is not, in this case, strictly bound by the referendum result; it declares that any popular vote is of zero legal relevance until Parliament expressly chooses otherwise. It is not even legally persuasive: ‘a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question.’ [emphasis added]

If the Supreme Court confirms this decision, the entire national debate on the EU can begin over: in the House of Commons, in the (unelected) House of Lords, then possibly back again to the courts, or maybe even the electorate. And that is what the claimants want: delay and time for second thoughts and further lobbying–not on the ground that the referendum result was unclear or the procedure unfair, but on the ground that the question was wrongly decided.

I agree that the question was wrongly decided. I also think that referendums are a very poor instrument of ordinary governance. But when what is at stake is the boundary of a constitutional people, we have no better procedure than a referendum, and courts should use their powers to uphold, rather than undermine, the result. Those who regret the result (as I do) should spend less time trying to overturn or forestall it, and more time trying to rally opinion around one of the better options that it has left open. Lawyers shouldn’t feel sidelined: whatever happens there will be work for them.

Democracy is government by the people. But the definition of ‘the people’ is not a matter solely for Parliament. It is matter prior to parliamentary democracy, and the legitimacy of Parliament depends on settling it correctly. The people have a right to decide for themselves the most basic terms of their constitution, including the people who will empowered by that constitution. That is why it is for Scots to decide whether to remain in the UK—and not for the UK as a whole; and why it is for the British to decide whether to remain in the EU—and not for the other member states.

What we might call English Constitutional Theory has long distrusted popular sovereignty.  An influential line of thought running from Hobbes, through Blackstone and Bentham, to Dicey and Jennings, equates popular sovereignty with Parliamentary sovereignty. Even today, the High Court repeats with approval Dicey’s words : ‘The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament’. Of course, it is plausible to think that the ‘will of the people’ needs practical expression. But when we have—as Dicey did not—lawfully organized and fair referendum procedures, it is implausible that only an Act of Parliament can ever speak for the people.

The UK has a fluid, informal constitution, and when disputes about its basic ground rules reach our courts, they generally lie in a penumbral zone where, whatever judges pretend, their decisions not only have political consequences but are made, and can only be properly made, on grounds of political morality. There are no ‘purely legal’ decisions at this level.

Today’s decision sidelines an important principle of political morality. It is not inexorably driven to do so by law or by logic. The judgment depends on two propositions that remain as debatable after the decision as they were before: (1) that the UK’s notification to withdraw from the EU cannot be made conditional on anything, and (2) that the European Communities Act 1972 not only gives EU law direct effect in UK courts, but also makes it part of UK law. Since the parties all accepted (1), the court did not test it. On (2), the court rejected the government’s argument that rights of British citizens under EU law result from an interaction of domestic and European law, and do not rest in domestic law alone.  Legal philosophers have struggled with the general issue at stake in (2).  Compare:  if conflict-of-laws rules sometimes require English courts to give effect to French law, does that make French law part of domestic English law?  It is a delicate question.  The Court makes short shrift of it.  Oddly, given its enthusiasm for Dicey’s doctrine that Parliament is omnicompetent, and its insistence that it only addresses ‘purely legal’ questions, the court  declares  (2) wrong because it is unrealistic: ‘In a highly formalistic sense this may be accurate. But in our view it is a submission which is divorced from reality.’

I wish the court’s desire to shape the law with an eye to reality had gripped it in some more helpful way. Since the UK is a union of peoples, not just one people, the declaration that any referendum, on any matter at all, can only ever be advisory will not go down well in Scotland, or in Northern Ireland. Nor will the conclusion, which follows inexorably, that Westminster can by explicit legislation repeal the Scotland Act 2016, notwithstanding what ‘a decision of the people of Scotland voting in a referendum’ (s 63 A) might have to say about the matter.  Does the Act itself give such a referendum legal force?  If so, it only takes a simple majority, which might consist only of English MPs, to amend or repeal it.

Contrast the more sensitive, and sensible, approach of the Supreme Court of Canada when addressing the constitutional significance of a possible referendum result in favour of Québec independence:

The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.  This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec.’ (Reference re Secession of Quebec, [1998] 2 S.C.R. 217)

The formulation is inexact, but the idea is sound. The idea that ‘other constitutionally recognized principles’ necessarily trump any clear expression of popular sovereignty is a danger to the continued existence and operation of any constitutional order. The Canadian Court knew that to endorse that idea could risk national calamity. By their judgment they changed, if only marginally, the basic ground rules of the Canadian legal system. It was a wise move.  Perhaps our Supreme Court will follow it?

Popular sovereignty is a moral ideal. Parliamentary sovereignty is an institutional device, helpful where it secures important values, but a hindrance when it does not.

 

Why every academic under 60 must have a blog

As I have mentioned before, there is an enormous over-production of scholarly writing, especially in the humanities and social sciences. Some of it is driven by mandates imposed by governments, and lots by universities’ apparent craving for self-harm. Still, quite a lot is also caused academics themselves (i.e. ourselves). We are competitive, self-deceptive, and rarely good at much apart from academic writing—teaching not excepted.

What to do? One possibility is strive for  self-control and to resist writing—and certainly publishing—unless one knows something that at least twelve other people need to know and will never otherwise find out.

Two considerations argue against this approach. The first is that we seem to be very poor judges of what others need to know. The second is that we tend to over-rate the significance of own work. A good friend, X (an enormously distinguished academic) once told me—in a moment of ethanolic honesty—that he had now resolved to publish nothing more unless it was a true ‘X-gem’. Of course this came to nothing, as you will have guessed by the very fact that he presupposed that some non-trivial amount of his work would turn out to be not only of lapidary, but even gemological, beauty. Scores of papers appeared anyway, many of them repeating the repeated lines that had made him influential, in his own scintillating way.

But now consider the obvious alternative: external editors. Won’t that work? Sadly, no. And I say this, in all humility, as an editor of an annual, of a book series, and as a member of the editorial boards of what are regarded as top journals in my fields.

Undeniably, in the outlets for which I am part-responsible, it has never once been the case that we published because: we needed to fill a number, we needed to replace an author who didn’t produce, we thought there could be a market for a ludicrous argument, we liked someone, or we needed to keep up the pace in order to remain on the radar. Still—all of these are true of every other academic outlet in the English-speaking world. In particular, US law reviews (of which there are thousands) are filled (up) with material that, absent such considerations, would never find a home anywhere. They are products of ‘internal’ necessities only—and of the institutional necessity to publish the writings of their own faculty while buffing the CVs of their student ‘editors’.

So here is my suggestion. Every university teacher under, say, 60, should be contractually required to have a blog. (Oldsters will be forgiven their tech-phobias.) The blogs will be hosted and maintained by their own universities, and the universities will not claim intellectual property in the blog-publications, and will never attempt to impose any regulations on faculty blogs apart from those required by general law. But no blog entry will be citable, or mentionable, in any internal context, including deliberations about tenure, promotion, salary, etc. And no one will be allowed to complain in any such context that Professor X is a sourpuss on his blog, or that he published something that their students found offensive, micro-aggressive, or dumb.

The idea is that compulsory blogs could in time become safety valves, relieving pressure from journals and book publishers. Professors will thus be nudged—not compelled—towards writing in places where the marginal cost, and harm,  of another publication is about zero. No longer will someone wake up, realize there is a tiny non-sequitur in some argument, and then start his article-generator grinding away at the literature review, the three alternate interpretations, his own ‘better view’, his reply to all possible objections, and his final, predictable, agonizing, Summary of My Argument—which gets fed into a paper-submission-app, inevitably to be accepted by, shall we say, the Southern-Canadian-Columbian-State-Journal-of-Transystemic-Legal-Studies.  Instead, he will  just have a double espresso, practice three minutes of mindfulness, and then take to his blog. After the scholarly ejaculation has subsided, he will take a nap and prepare for class.

How can I be sure? Actually, I’m not. But what alternative do we have? Everything I can think of seems much worse.

What ‘Brexit’ Really Means–Explained

My part-time colleague, Bo Rothstein, argues for a second referendum on the United Kingdom’s membership in the European Union–if and when the government comes up with ‘a deal’.

Fair enough.  But is his second referendum supposed to be able to reverse the decision of the first one?  Strangely, Rothstein doesn’t tell us.   In light of his examples of referendums of which he disapproves, it is natural to think that he means not merely a second referendum on an independent issue (e.g. the UK’s membership of the European Economic Area–yes or no?) but a second referendum capable of undoing the first, that is, of leading to the UK remaining in the EU–the very option that was so clearly rejected in June.  No referendum result (or election result, or judicial decision) has absolute authority.  But does this one really have zero authority?  Is it liable to be annulled on the ground that it was wrongly settled?

I am not surprised that Rothstein is coy about all this, for offering any definite view would require at least a sketch of the conditions under which a government should comply with the result of a (legally) advisory plebiscite.  He gives us none.  Rothstein does not notice, let alone refute, Richard Wollheim’s old but important resolution of the so-called ‘paradox of voting‘, namely, the fact that one can consistently think that one ought to support X against Y, yet also think that, if the majority supports Y against X, then one should support that. (Within limits.)  Wollheim said there is a difference between our ‘direct’ and our ‘oblique’ policies, and that it is  reasonable to have different policies about what we should ‘directly’ favour (were it up to us alone) and what we should ‘obliquely’ favour when called on to consider which policies should settle differences in what people ‘directly’ favour. So it does not follow from the fact that there was ample reason for me to vote Remain that, after a clear majority voted Leave, I should now insist on discounting their advice, relying instead on the grounds that justified my own initial vote.  The actual, positive, fact of a majority vote matters, and before we decide to ignore it, we need a better reason than that the majority was wrong to vote that way.

Wollheim’s labels never caught on, but his idea did, and it was put to work by writers like HLA Hart, John Rawls, Joseph Raz, John Finnis, Jeremy Waldron, me, and lots of others.  Nowadays we talk about the authority of ‘content-independent’ reasons, or of procedures. I’m not sure that ‘content-independent’ is any catchier than ‘oblique’, but it is the thing we need to consider when we weigh the moral authority of a referendum result, or an election result, or a court decision.  We don’t hear about this from Rothstein, who never tells us when he thinks it is right (if ever?) to give weight to content-independent considerations.  Of course, in a short journalistic piece one doesn’t expect a detailed argument.  But not even a hint?   Not a gesture?  The silence suggests that he thinks positive facts  have no authority at all to set against what is (in ‘truth’) right and proper.

Like most sensible people, he sees that the referendum result is a disaster for the UK–especially for those of us who teach in its universities; but for many others as well, including many who were duped into voting Leave.  But a second referendum?  What about best three out of five? And why not the same for general elections: the law of large numbers may help iron out the wrinkles caused by deliberate deception, voter ignorance, blindness to expertise, and so on. No MP should be elected without winning, say, 3 out of 5 elections.  Or 5 of 7.   There is an internet; it could be done.  But we will need to settle on the number of elections (or referendums) that need to be won in order to produce a settlement.  People will disagree about that, too.  Should we  hold a referendum on that question?  Or ask the philosophers to decide?

Rothstein also says ‘The slogan “Brexit means Brexit” is … meaningless because no one knows what a Brexit alternative will look like.’  That is just false.  I agree that we do not know what the feasible alternatives will be.  I know that Theresa May’s ‘Brexit means Brexit’ was a silly slogan to buy peace among warring factions of her Conservative Party.  But none of that comes close to showing that ‘Brexit means Brexit’ is meaningless.  For starters, everything is what it is and not another thing, so the sentence, if  uninformative, is meaningful.   Taken literally, it is also (trivially) true.  Of course, everyone also knows that it was not intended literally.  It was intended to tell us not to get our hopes up that Brexit will prove to be something other than what it said on the tin.  And what did it say on the tin?  Since so many now claim to be mystified by that, I am going to tell you, for I know what ‘Brexit’ means.

‘Brexit’ means a BRitish EXIT from the European Union. And that means that those who favoured Brexit wanted the United Kingdom to cease being a member state of the EU. May’s slogan assures her colleagues that that will eventually happen. (‘Eventually’ is a very big problem: I may come back to that another time.)

Now, member-statehood in the EU is fairly crisp, well-defined concept. There are no hard cases of EU membership; it is even pretty easy to find out which states are in and which ones are out.  Admittedly, Leave voters may not have known what they wanted instead of EU membership. But that is a different question, and it was not, as far as I recall, on the ballot paper. What’s more, there is nothing suspect about not wanting X while having no idea of what one would want if not X. People can rationally leave destructive marriages or jobs without settling what they might do next or instead.  I think that those who voted Leave were tragically and terribly mistaken. I even think that many of those Leavers who were literate were culpably mistaken, as they  refused to bear what John Rawls called ‘burdens of judgment.’ They negligently failed to inform themselves about highly pertinent, non-controversial, matters of fact; they refused to confront evidence that ran contrary to their prejudices.  Be that as it may, to suggest that neither Leave voters nor anyone else knows what Brexit means is plain dishonest. For a serious academic to repeat that tired, journalistic lie is close to professional malpractice.

Finally, Rothstein–like most other commentators–says nothing at all about one real, politically serious, ambiguity in the referendum result.  It isn’t helpful to talk about what ‘Britain’ decided, unless that is a casual way of talking about what the member state, the United Kingdom, decided.  That is the relevant entity as far as the referendum, and the EU treaties, are concerned.  And don’t say that ‘Britain means the United Kingdom’, as that is worse than ‘Brexit means Brexit’, inasmuch as the former is false and the latter is at least true.  Most of the Northern Irish voted Remain, as did most Scots, whose relation to ‘Britishness’ is more complex than the English imagine.  The referendum decided that the United Kingdom should leave the European Union. So that means that all of Great Britain and Northern Ireland will probably be given what only England and Wales voted for.  About that, there is a reasonable complaint to be made.  Admittedly, in the eyes of most English lawyers, Scotland’s and Northern Ireland’s rejection of Brexit is a detail of no constitutional significance, or no more constitutional significance than London’s.  But the opinions of English lawyers are not as important to Scottish or Irish politics as the English suppose them to be.

As for Brexit, the Scots and Irish, like the English, understood perfectly well what was being asked in the referendum.  They knew that ‘Brexit means Brexit.‘  That is why they opposed it.