JOSEPH RAZ was one of the most important and influential legal theorists of our time. Born in Mandate Palestine in 1939, Joseph died in London in May of this year. A memorial was held at Balliol College, Oxford on December 10th. I am no longer able to travel, but Joseph’s family kindly let me present these pre-recorded remarks at the event.
Joseph Raz and Les Green, at Balliol College 1984
In my last post on academic freedom, I suggested that alongside ‘the tyranny of public opinion’ in universities we need to consider the dictatorship of money and influence. Universities always needed money, and public money came with strings. But now we are symbiotically dependent on private money: tuition fees, corporate grants, work-for-hire, and always and everywhere the philanthropy of the rich, especially, rich alumni.
Payment schemes are overtly transactional: fees for tuition, grants for research. In a weirdly aristocratic way, universities regard these as more suspect, more degrading–as if the family had married into ‘trade’–than alumni donations and legacies. But it seems to me that the closer university support comes to a market transaction (some fresh tit for a bit of ancient tat) the more above-board things are. There will be CFPs, competitions, contracts, accountants, and the possibility of regulation. The downside is that tuition turns students into consumers who must not be disappointed, and non-productive subjects and departments become impoverished.
I have served on ‘development’ or ‘advancement’ committees in every university I’ve worked at, and every charity with which I volunteer. Although I am (as the late G.A. Cohen would put it) extremely rich as the world population goes, and even quite rich as university professors go, I am not all that rich. Yet for reasons I have never understood, the odiously rich often get on with me. I can make a million pounds piss its pants with laughter, while standing it Château Yquem for Château Yquem, and crooning folk songs in any of four languages. So I know about ‘advancement’ culture.
It is not overtly transactional. It is covertly transactional. The covert part is the problem. The only side of the exchange the public ever sees is a name on a library or a professorship. But that is only the bill before VAT. The tax has still to be paid. That is accounted in influence: the understanding that a call will be answered, a meeting held, an opinion considered, a direction affirmed or thwarted. Donors need not ask for influence anymore than the treasury need ask for VAT at the till. It is common knowledge that it must be paid.
Covert transactions can work smoothly, and also innocently. But now and then a donor feels disturbed, even cheated, and then trouble begins. He may have misread the price-tag. He may not only have paid for things to happen, he may think he bought the right that things not happen. Faculty working in good faith are then blinded-sided by constraints they never knew existed. Pressure is applied. Sometimes it causes bruises that show in public. Like a battered wife, a pusillanimous dean tells everyone she walked into a closet and that her husband still loves her. And, in truth, she does crave the creature comforts of his family mansion.
As in battered-wife syndrome, escape from a covert transaction gone bad requires publicity. But how can that happen? Those who know most are the most involved, a small group. And a university scandal can affect everyone there, including innocent bystanders. Many have an interest in shutting down scrutiny. The first screw they tighten is the appeal to confidentiality. (A covert transaction, get it?) Then the unctuous appeal to ‘collegiality’ is wheeled in, holding off the use of actual ostracism until the top blows off. You need to understand just how badly concealment now matters. Actually, I doubt you can understand unless you have been there.
In the last post I offered examples of external assaults on academic freedom. This is how a typical internal assault develops. And that is why—if I may here answer some emails—it falls to ‘outside agitators’ like me to intervene. (Email 1: ‘It’s none of your fucking business!’) In the cases I wrote about, it was the fucking business of the academic deans and presidents who had most to lose. It was the business of everyone in their faculties with a shred of integrity. In one case, it is now the business of the judiciary.
But it is also the business of the lawyers and academics around the world including the Butlers, the Chomskys, and the Falks who now demand transparency at the University of Toronto, (Email 2: ‘So what? They sign every protest’.) It is the business of professors like the Leiters who take time out of their work to make the covert overt and to ensure that news from tiny fiefdoms reaches others in what we still, optimistically, call the ‘academic community’. (Email 3: ‘You proffesors [sic] getting off on your blog. If you know so much say that name. I know why, you Zionists [sic] always protect.[sic]’ {Author’s note—does the sender not have access to Google?}
Probably, for many readers of this blog, it is your business too.
The university year begins soon, and my students will be having what will be, for most, their first encounter with legal philosophy. (Online, if you’re in my own seminar or lectures. The pandemic is not going to disappear.)
At Oxford, as in much of Europe, jurisprudence is a compulsory part of our law degree. Since competent lawyers graduate from perfectly adequate law schools like Harvard or Yale, you may wonder why you will be made to study some philosophy. I will explain.
My non-jurisprudential colleagues may tout the non-specific benefits of philosophy. You will be promised transferrable skills that carry over to subjects like contract, constitutional law, or conflicts. What skills? The capacity to think: to read with care, to reason systematically, to parse complex arguments, to notice subtle distinctions. The objection is glaring: if you haven’t been able to develop these skills working with legal arguments, how will you ever master them working with philosophical arguments?
In terms of ‘skill sets’, law and philosophy are close cousins. They differ mainly owing to the fact that, in law, finding a relevant authority strengthens your case, while in philosophy the ‘appeal to authority’ is the name of a fallacy. So it would be strange if you found that law comes easily while jurisprudence is arduous just because there you need to read, think, and test arguments.
But good students are thrown off balance by the fact that in legal philosophy there are no authorities. No practical authorities of any kind–no one before whom you have to bow (unless you sign up to a dogmatic religious jurisprudence). As for our theoretical authorities— genuine experts whose say-so warrants credence–they are limited to a few technical and historical areas of the subject. It is a feature of most legal philosophy that you need to do it for yourself, though in the process you can have the pleasure of doing it in the company of some of the most penetrating thinkers in history, from Plato to… well, let’s just say to many of my friends and colleagues.
But pleasure isn’t everything, and maybe the intellectual pleasures aren’t your thing. For some of you, push-pin may really be just good as poetry. (I will explain that reference in my lectures. For now, substitute ‘Minecraft may be just as good as Mozart.’) And if that is true of you, it is absolutely fine: people differ. I’ve lived in England for thirty years and never once (intentionally) seen a cricket match. So just ignore imperious professors who tell you that X is intrinsically fascinating and fruitful, whereas Y is objectively boring and sterile. They don’t get out much.
Now, someone who did get out–in spite of a very difficult life– and who understood more about life itself than many of your professors (perhaps because his own life was so very difficult) was the writer David Foster Wallace. He also knew the answer to your question about philosophy. At a now-famous graduation address, he said this about the value of the liberal arts:
‘[I]t isn’t really about the capacity to think, but rather about the choice of what to think about. … How to keep from going through your comfortable, prosperous, respectable adult life dead, unconscious, a slave to your head and to your natural default-setting of being uniquely, completely, imperially alone, day in and day out.’
I’m afraid this applies to you, in spades. Lawyers have cultivated ways of being imperially alone together. Mention ‘sovereignty’ in England and most lawyers tend to think in unison of, and with, Albert Venn Dicey. In US law schools, every ‘theory of free speech’ struggles in the shackles of the First Amendment and its labyrinthine doctrine. What could be more dead, unconscious, and lonely than that? Sovereignty and free speech are things that matter. If they matter to you, why suppose that everything worth knowing or valuing about them begins (and usually ends) at home?
Legal philosophy is here to remind you that you are not a slave to your own (legal) head, that there is an escape from the ‘default setting’ of your own little legal system, however profitable and powerful it may be. It will explain how something that is true ‘legally speaking’ may be utterly false. It will show you the difference between the way things are around here and the way things ought to be. It may even help you envision the way things could well be, if only we cared enough.
That is why you will study jurisprudence.
Good luck with it!
What will things be like after COVID-19? At least in rich countries, there will be a time after this pandemic. I do not think it will be soon. And, for reasons not here pertinent, I am unlikely to see it. But I think I see, perhaps darkly, some features of your future. We now know that parts of many jobs—and all of some jobs—will be done remotely. ‘Working from home,’ we now say.
Some predictions about how that could change our lives will prove as comically wrong as travel by jetpack. It will not stop the climate crisis, eliminate cars, or move all shopping online. It will not reverse—it may exacerbate—the grotesque inequalities of wealth and power that scar capitalist societies. ‘Essential workers’ will need to show up, and they will still be paid—if they are lucky—no more than their marginal product. In the medium term, the ‘reserve army of the unemployed’ will grow, so their wages may even go down.
But for people whose access to work is limited mainly by disability, especially by mobility impairments, things may improve. At least, they will if equality and employment law remain roughly as they are in the more decent societies. Many countries have something like the following regime: employers may not discriminate against people on grounds of disability, and they have a positive duty to make ‘reasonable accommodations’ or ‘adjustments’ in employment so that people with disabilities can participate with dignity and on fair terms. What is ‘reasonable’ is contested. An employee has to be able to do the job, but need not do it in the time, manner, or with the efficiency of one with no disability. The point of equality law is to put a thumb on the scale in favour of disabled employees. For nearly all employers that means a cost, and often a nuisance as well. Compliance is therefore patchy.
As my own mobility declined (I use a wheelchair), I discovered that even attentive employers struggle to understand, never mind accommodate, disability. I have never encountered ill-will or indifference, but plenty of incomprehension and dithering. And, incredibly, I have seen institutions that draw on the public purse build or renovate in ways that introduce new barriers to access. (The distinguished Canadian lawyer, David Lepofsky, rightly says that this should be a red line.) But here is the good news. Everyone now knows that significant aspects of some jobs can be done off-site. We know this is possible because it is actual. (Legal philosophers: take note.) Classes, seminars, lectures, and meetings are being offered in new ways because, well, for now we have no choice.
Some of these are imperfect substitutes for ‘the real thing’. They will be dropped, as general practices, just as soon as it is safe to do so. But—and here is my point—for some employees they will become not only feasible but required forms of accommodation. An academic ‘manager’ once told me, ‘We already have the most flexible work conditions there could be!’ They did not mean to suggest a flexibility including the right to work at a time or place that accommodates a disability. (Nor did they have in mind casualized teachers: they meant tenured law professors.) But COVID-19 has taught us that there are, after all, flexibilities we never noticed.
Not everyone who could ‘work from home’ should have a right to work from home. And, really, how many would want to? But some should have that right, including some people with disabilities. I would rather we had learned this some other way, but at least we have learned it. I hope you remember it when this disaster passes.
In the early days of the covid-19 pandemic, a philosophy professor posted in the social media a cry of despair: he was having trouble ‘working from home,’ knowing that almost any work he might do would be less important than anything he could do that would help others. A friend quipped, ‘It took the pandemic to make you see that?’
I have no doubt that the philosopher had at hand all the familiar replies: (a) we have a contractual obligation to do our work, but not to help a frail neighbour get groceries; (b) we have our own lives to lead and are already set on them; we are not resources for the use of others; (c) we refuse to be taken for suckers, and our colleagues are getting on with their work; (d) our work may not be helping others, but at least it isn’t hurting anyone.
Those are, in ordinary circumstances, good reasons for not conscripting us to help those to whom we owe no special obligations. But in our actual circumstances, they are pretty weak reasons for deciding to do nothing to help anyone outside our households.
As terrible as this pandemic is, we have not yet reached the point where general conscription is justified. But any of us can now change the balance between getting on with our research (or scholarship, or whatever) and attending to someone else. Most of us could do so without coming close to breach of contract, abandoning our lives, becoming doormats, or hurting more than we help. The most senior and best paid among us can do so at no significant cost to ourselves or even our careers. So why don’t we?
An easy answer is selfishness. But I have come to think that explanation is too easy. It isn’t merely that when we are dependent on reciprocity selfishness can be self-defeating. I think it isn’t as easy to be selfish as some assume. It takes discipline and effort to bring yourself to care mostly about your profession, your recondite passions, trivial marks of distinction, or purely positional goods. We were taught the necessary skills as students. Many of us then adopted principles that reinforced those skills. For some, keeping faith with those principles became an end in itself. It was hard work, and did not come naturally.
To think a narrow selfishness is the academic’s default is as wrong as thinking that bias is the default disposition of a judge. Left to themselves, many judges would be decent. It takes a deep commitment to the rule of law to be willing to apply, consistently and without exception, any and all existing laws, no matter what they are or how they affect people. That disposition is not impartiality: it is a willingness to give full effect to the biases encoded in the law. Without discipline, an ordinary (human) judge is liable to veer off into justice, humanity, or common sense. Solomon’s wisdom did not lie in his skill at applying rules.
My guess is that academics (in my own fields, anyway) are less selfish than we are embarrassed to help. Admittedly, a few seem without shame in explaining to epidemiologists how the pandemic will progress, or to all of us how we should value human lives against the stock markets. But they are outliers. Many of us feel ashamed at now having so little to contribute to the public good, especially if we were educated (as I was) entirely at the public expense.
One remedy is to remember how much we can do that is non-specific. Any of us can help someone (the housekeeper, the gig worker, the laid-off server) fill in the forms that stand between them and the benefits our ravaged welfare states still provide. Before heading to the grocery store, any of us can ask someone what we can pick up for them—and not, by the way, by saying ‘Let me know if you ever need help.’ We know, or can easily find, people who always need help. Don’t expect them to supplicate. We also probably have phones, as well as the numbers of people who just need to talk. (And not, unless you are under 25, by texting.)
We omit these small services, not because we are selfish, because it is hard to admit that these are the only sorts of things that many of us in good jobs, ‘working from home,’ can do for others. We feel embarrassed that we have little more to offer. We wish for something grander, something that would display our expertise, perhaps leading to acknowledgment of how smart and important we really are. That is not selfishness. But it does exhibit, shall we say, an unhealthy relationship with one’s self.
For the first time in ages, I did some research. I do not mean I did whatever it is that, when added to my teaching and administrative duties, sums to 100% of my contractual obligations as a university professor. I mean I researched something—I found out something I didn’t know, but which was there to be known. (‘What authority do Scottish courts now accord the 17th century ‘institutional’ writers, such as Erskine and Stair?’ There is a [vague] answer to this question, and I found out what it is.)
I also often try to find out what others are saying about things I’m interested in: so I do look at periodical databases, SSRN, Westlaw, and so forth. But that’s not really ‘doing research’. What’s more, that once-common activity of ‘keeping up with the literature’ has become, like visiting parish churches, the pastime of a certain class only. An influential philosopher told me he never reads the journals anymore: he has his own work to get on with. It takes a certain kind of person to assume that everyone else is waiting for your next, while you have nothing to gain from their last. (A kind of person now well represented in my subjects, and I suspect in the humanities more generally.)
But if I’m not doing research in jurisprudence, what exactly, or even roughly, have I been doing all these years? For a long time, I thought that it should be classified as scholarship. I arrived at that conclusion by applying this rough test:
R=df: If your failure, or delay, in writing something means someone else might do it first, then you’re doing research.
S=df: If your failure in writing something means that no one else will ever do it, then you’re doing scholarship.
I think you get the drift. But the definition of scholarship proves over-inclusive. No one else is going to write your poems either, and not just because of the metaphysical necessity of origins. It’s just that, if you don’t write them, they are not going to get written by anyone. There weren’t competing crews working on a Toy Boat, then Ocean Vuong’s crew crossed the line first. But that doesn’t make Toy Boat a piece of scholarship.
My definition also struggles with historical studies. In principle, someone else might be working on A History of Freemasonry in Kilbarchan, and might publish before you; but his will not be your history. Indeed, if your history is any good, it is unlikely to be just like his. He will approach your shared subject with different preoccupations, background, and maybe even methods. Still, both of your histories are likely to include, or produce, research.
I’ve now come to think that, not just my definitions, but my dichotomy of research and scholarship is too crude. I am now wondering whether we might think of some of our work in jurisprudence, or in philosophy more generally, as more like curating. (I wanted to write ‘curacy’, but OED tells me the word has been taken.) Like research, curating can find out things; like scholarship it can communicate things in a way unique to, or bearing the indelible imprint of, the creator. But curating also does something else.
A curator attempts to care for knowledge and culture we already have. Not by freezing it or ensuring no others can touch it, but by conserving it while placing it in a new context, or displaying it from a new angle, or in the company of new ideas, so as to make it intelligible and perhaps useful to those who follow us. A curator protects what we already know (and value), not only against forgetting, but also against the disintegrating forces of self-importance (including national self-importance) and against the blaring noise of the news cycle.
At the end of his play, The History Boys, Alan Bennet gives the closing words to Hector, the childlike schoolmaster whose career is ruined by his fumbling and fondling affection for the boys. But it is Hector, not the smarmy if effective Irwin (another, even more tragic, closet-case) who actually gives the boys an education. Irwin merely teaches them how to game the system and win places at Oxford. Yet Hector does neither research nor scholarship: he recites, assembles, displays and, especially, places in the context of their world some truths the boys need to know. Mostly, they are things everyone already knows, but which cannot be counted on to survive without care. Some truths are fragile:
“Irwin He was a good man but I do not think there is time for his kind of teaching any more.
Scripps No. Love apart, it is the only education worth having.
Hector Pass the parcel.
That’s sometimes all you can do.
Take it, feel it and pass it on.
Not for me, not for you, but for someone, somewhere, one day.
Pass it on, boys.
That’s the game I wanted you to learn.
Pass it on.”
The thought is put more sentimentally than we should in jurisprudence or philosophy. But Hector’s core idea now seems true to me—some of what we do, and some of what we should be doing—is neither research nor scholarship, but ‘passing the parcel’, in the hope that it will be of value to someone, somewhere, one day. It’s a decent, and honest, ambition.
Suppose someone asks to be referred to by a gender-neutral pronoun: ‘their’, or maybe ‘ze’. (A) Do you have to do it? (B) Is it wrong if you don’t? (C) Does anyone else have the right to require you to do it? The answers are: (A) Yes; (B) Normally; and (C) Sometimes.
(A) We have a social obligation to address people and refer to them in the way they prefer. If your friend wants to be called Daniel and not Dan, then Daniel it is. If Dad wants to be called Dad and not Bob, you call him Dad. If Ms. Ahmed marries Mr. Mackenzie, you continue to call her ‘Ms. Ahmed’ unless and until she tells you otherwise—you never insist on ‘Mrs. Mackenzie’ against her wishes. You call an instructor ‘Dr’ or ‘Professor’ as appropriate, unless invited to call them something else. (Especially in the case of women. They earned their titles, yet often suffer ‘Miss,’ or even ‘Judy,’ from people who reflexively acknowledge the authority of male instructors.)
(B) At the same time, a breach of a social obligation isn’t always a big deal, morally speaking. You shouldn’t wear a Hawaiian shirt to a funeral, and you shouldn’t smoke in a friend’s company without permission. But these are matters of etiquette, not morality. Why is deliberate mis-naming different? People’s names, titles, and pronouns are part of their identity, and to deliberately address them in a way other than they wish is a gratuitous insult. That is wrong in itself. But it is also to presuppose that they are to be admitted to your conversational world only on your terms, not on their own. That is not only offensive to them, it is also an offence against them. Of course, there are exceptions. If you oppose titles of nobility or religious nomenclature, you have no duty to call someone ‘Lord Black’ or ‘Father Brown’, even if their bearers prefer it. But what if you firmly believe married women should take their husband’s names, because St Paul said something that, in your view, requires that? Doesn’t that make it morally permissible for you to insist on calling Ms. Ahmed ‘Mrs. Mackenzie’? No: Love your neighbour as yourself. And grow up.
(C) Now, what about free speech? Even if mis-naming is a breach of social obligation, and even when it is also a breach of moral duty, doesn’t the free speech principle prohibit others requiring me to address people as they wish. Isn’t that my call? Who is anyone to boss me around?
It is hard to believe, but a Canadian professor of psychology (who insists on ‘Dr. Peterson’ from the press) thought that this would amount to ‘silent slavery with all the repression and resentment that that will generate.’ Knowing even less about the law than he apparently does about psychology, Dr. Peterson fears that pronominal intransigence might expose him to hate speech prosecution. It would not. But it might, and I think it should, expose him to discipline on his campus.
Universities are not just public platforms; we have work to do. One aspect of that work is teaching students in an environment in which they can learn without distraction and, in particular, without being insulted or needlessly exposed to risk. To insist on calling transgender students (or faculty) by anything other than the name and pronouns they prefer is a gratuitous insult. (See above, (B): ‘Grow up’.) More important, students cannot learn effectively when subjected to regular offence or humiliation from their instructors. So take your opposition to the ‘silent slavery’ of pronouns to Youtube or Hyde Park Corner, where your audiences are not captive.
Mis-naming can sometimes be worse than an insult. Imagine an anti-Semitic professor who thinks far too many Jews are admitted to his university. Imagine it is already dangerous for Jewish students on campus. The professor breaches no other laws or regulations, but does insist on mis-naming his Jewish students: He knows that Green’s father changed the family name from ‘Greenberg’, so that is what he calls Green. He pronounces all middle-European names ‘correctly’, to emphasize their foreignness: ‘Weidenfeld’ gets ‘Vy-den-feldt’, never ‘Wy-dun-feld’. Mike always gets ‘Micah’. And so on. If challenged, he says his mis-naming is merely correcting errors. He says his purpose in doing that is to highlight Jewish over-representation. His secondary purpose–he also says–is to stand up for free speech, and to strike back at ‘social justice warriors’ who are trying to sell people like him into ‘silent slavery’. The effect of his behaviour is that Jewish students are now even more anxious than before, for he has made them visible targets for anti-semitic discrimination, or worse.
There used to be instructors like this. (Perhaps in some places they still exist.) But there are now many more instructors like Dr. Peterson, who insist on their right to call transgender students by a previous name (perhaps the one on their application form) or to refer to them by what he considers to be their genitally mandated pronouns. Where transgender people are at risk of discrimination and violence—which is to say, everywhere—this marks them as targets, even if the actual discrimination or assault is left to others.
But isn’t that effectively to ban discussion of transgender rights or (in the case of the Jewish students) to cramp exploration of admission policies? Of course not. Prohibiting deliberate mis-naming would be a reasonable time, manner, and place regulation in a university classroom. There is no ‘slavery’ here, silent or otherwise. Then what about ‘all the … resentment that that would generate’? Feelings of resentment are partially within our control. The case for campus speech regulations is at the same time a case for learning to control one’s resentments. If they prove intractable to rational control, there is always psychotherapy.
Michael Jackson had three qualities that would have made him comfortable with some members of the Roman Catholic hierarchy. He loved an audience, he wore astonishing garments, and he pretended that young boys consented to be his lovers.
Martin Heidegger had three qualities that would have made him comfortable with some members of Alternative für Deutschland. He loved his country, he had an astonishing way with the German language, and he pretended the Holocaust was not happening.
For work/life separatists what should engage our attention about Jackson and Heidegger is solely their work. Yes, their lives were entangled with evil—and of course the work/life separatist concedes that merits a preface or a footnote–but no one interested in popular music of the last century can ignore Thriller and no one interested in post-Kantian German philosophy can ignore Being and Time, and that is what matters.
The separatist is correct to this extent: any suggestion that we should now stop listening to Jackson, or stop reading Heidegger, would be seriously wrong. There are things of real value that we would lose. Anyway, where would it stop? Oscar Wilde may have been a brilliant writer and gay hero, but his rent-boys were boys. Charles Maurras may have been a critic of ‘scientific racism’, but he was an enthusiast of state-sponsored anti-Semitism. And exactly how old was Alcibiades during those early, flirty afternoons with Socrates? And what exactly did the writer of Matthew’s gospel mean when he had the Jewish crowd chant, “His blood be on us and on our children!”
So you see the appeal of work/life separatism.
And yet: We cannot rule out of hand the possibility that we will have a deeper understanding—musicological, not just historical—of Jackson’s work if we keep front and centre the fact that the loves in his lyrics may be pederastic. We cannot dismiss the possibility that we only appreciate Heidegger’s disempowering metaphysics of ‘Being’ if we see it as a screen for contemptuous attitudes towards actual human beings. But note: whatever merit there may be in such conjectures, it argues, not for erasing the works from the canon or boycotting them, but for keeping the lives conjoined to the works. It argues against separatism, but in favour of inclusion.
However, another point also needs to be made. Jackson and Heidegger are dead. Jackson is not engaging in the orgy of boy-rape sheltered by misogynist religions. Heidegger is not torching synagogues or introducing the Führerprinzip into university governance. (Though plenty of non-Nazi Vice-chancellors of English universities appear to think it has attractions.)
We would have reason to feel differently if the rapist was not a dead singer but our brilliant, energetic colleague down the hall; or if the anti-Semite were the smiling, emollient leader of our laboratory. In such cases we have a positive duty to speak up and to speak out. Academic freedom and tenure, where they exist, are not only there to ensure we can flog some abstruse doctrine hardly anyone cares about. They are also there to ensure we can do our other duties to the university and to our students. In most cases, we will also have a reason (though not a duty) to deny the rapist or racist what JS Mill called our ‘good offices’—our collaboration, our collegiality, our company.
But what about the works that make them famous, or the lectures that bring them prizes? Is their value somehow diminished by the rape, or tainted by the racism? In most cases, no. Nonetheless, while the rapists and racists are still alive, it is difficult for us to honour the work without also, to some extent, honouring the worker. So there are matters of moral consequence and proportion to attend to. And we can always return to give the work its due when the worker, like Jackson and Heidegger, is no longer in any position to derive influence from the honour.
Great artists and great thinkers often crave immortality through their works. Some of them believe their works will bestow it. They can hardly complain if we decide to wait before kick-starting their immortal lives.
The current UK government found a few supporters to affirm that a primary function of England’s universities is to provide a platform for free speech. This is a radical suggestion. It is undeniably one of the functions of the public realm—of news platforms, of the media, of public space, of Hyde Park Corner—to provide a platform for any and all comers, provided only their speech is lawful. These are the indigenous territories of flat-earthers and anti-vaxxers. But until recently, no one ever thought a function of universities is to provide a platform for open debate, however ill-informed, or however inimical to teaching and research. Nor did they think one could circumvent the main purpose of a university by an invitation from a student group.
Universities have several functions, but the primary ones are the search for and transmission of knowledge, and the exploration and preservation of culture. As every reader of JS Mill knows, these functions are cramped without freedom of speech. But no Millian ever imagined that a Geology department should hire someone who thinks the Earth is 4004 years old, or that a Psychology department should include those who think a homosexual orientation is a ‘disease’ that it might be ‘cured’ by ‘conversion therapy’. People who believe such things are epistemic failures, and one function of universities is to keep them well away from our core business. Of course, as Mill also argued, their views should nonetheless be lawful: their expression—somewhere or other—keeps us all on our toes. But Mill did not think, and never said, that their place is in universities. Just the contrary. Assuming a measure of expertise in universities, Mill favoured plural voting—a qualified elector could vote, not only for a member representing the constitutency, but also for one representing the university. (To be clear: I am not in favour of this.)
Admittedly, true cranks are now rare in universities. But there are a few faculty, mostly relics or showmen, kept on epistemic life-support by students too embarrassed to admit they share their views or too timid to challenge them. Still, university students are adults, and open to being judged by the company they keep. But I sometimes wonder—yes, this is paternalistic—whether those who choose to study with anti-vaxxers, homophobes, climate-change-deniers etc. know what they are getting in for, and how they will be judged by the wider world upon graduation. Is that unfair? Many German university students who were suck-ups, or simply silent, in the company of Nazi professors, had to live down the evil they tolerated. Not all of them were themselves anti-Semites.
What of autonomous student organizations? They need not, and often do not, share a university’s core functions. They may revel in foolishness and incompetence, if they wish. The Oxford Union, contrary to what many think, is no part of Oxford University. It is a private club that sometimes gets its kicks, and its clicks, by inviting ludicrous, incompetent, narcissists to ‘debate’ serious issues. Being sited at Oxford, it tends to get press. The Union’s invitations have often been discouraging—a terrible waste for such a distinguished club. But I am not a member of the Union; so its doings are of no concern to me. On the other hand, the Apollo University Lodge (of which I am a member) is Oxford’s 200-year-old Freemasons’ Lodge. (It counted Oscar Wilde among its more illustrious members.) Apollo, too, is just a private club. But as a member I feel a personal obligation to ensure that idiots, homophobes, and racists are neither members nor speakers. Interestingly, at Apollo, in contrast to the Union, this has rarely been an issue. But then Freemasonry defends Enlightenment values, and is universal in aspiration. No wonder the Nazis, and Stalin, repressed it.
My distinguished former colleague, brilliant jurist, reactionary Catholic ideologue, and career homophobe, John Finnis, is once again attracting the attention of Oxford’s law students. This comes in waves. In the past, it was triggered by things like John’s attempts to defend frightening moral views, or by his legal interventions on the side of prejudice and superstition, or by his disowning Oxford’s standards of academic integrity (when breached by students who share his views). What could have triggered the ludicrous new petition to have him ‘removed’ from Oxford?
I’ve been away on sick leave, so I may have missed something. But reliable sources tell me there has been no fresh controversy. Of course, each year there is a fresh group of students to be shocked by Finnis-type views. That encounter can be like reading Hastings Rashdall for the first time. (Rashdall argued that the well-being of the ‘higher races’ matters more than the well-being of the ‘lower races’. I was first made to read Rashdall in a tutorial at Oxford.) Actually, it is more like reading Rashdall and then, just when you stop trembling, walking into your seminar and there is Professor Rashdall! And now it’s your turn to engage in ‘more speech’.
Still, the petition to ‘remove’ Finnis from Oxford is seriously wrong in principle and mistaken in fact. Principle: To fire someone from an academic post solely on the basis that he defends false or repugnant views is a clear violation of academic freedom. As my friend Brian Leiter rightly says, it is pretty embarrassing to see Oxford Law students signing up for this. (I’m hoping none of the signatories was in my classes on freedom of speech.) Fact: one cannot ‘remove’ someone from a post he does not hold. John Finnis is long retired from Oxford Law, though it is true that he is still occasionally invited to teach seminars, and also to participate in hiring decisions. (At Oxford, ‘compulsory retirement’ is fully compulsory only for those who lack friends.)
But is academic freedom the only thing at stake here? Consider whether, when Hastings Rashdall retired from New College, Oxford, they should have gone looking for a replacement to defend his articulate, philosophical form of racism, or whether they should have kept Rashdall on an occasional basis, to ensure that students of the ‘lower races’ would have some controversial views to take on. (It was 1910—philosophical racism was still a thing.) If such a case could be made, it would have to appeal to something like intellectual diversity or pluralism. (‘We need someone to stand up for racism around here!’) But it couldn’t be advanced on grounds of academic freedom: that protects those who have an academic role, it doesn’t tell us who should have an academic role in the first place. If there is an objection to not replacing (or re-hiring) racists or sexists or homophobes, it is not an objection from academic freedom.
Now, back to the future: Oxford’s official response to the Finnis petition was as distressing as the petition itself, though for different reasons. (I have never understood why, but this particular issue is something our administration gets wrong, time after time.) The University says, ‘We are clear we do not tolerate any form of harassment of individuals on any grounds, including sexual orientation. Equally, the University’s harassment policy also protects academic freedom of speech and is clear that vigorous academic debate does not amount to harassment when conducted respectfully and without violating the dignity of others.’
Fair enough. But the petition does not allege that John Finnis engaged in ‘harassment of individuals’ and, myself, I would consider any such allegation incredible. John is a kind teacher, a generous colleague, and a gracious man. However, our student lawyers do understand the University’s obligations under the Equality Act better than the University does. The University has an obligation not only to eliminate individual discrimination against, and victimisation or harassment of, gay students, but also a positive duty to advance their equality of opportunity and to foster good relations between gay people and straight people at the University. In its garbled (and partly unlawful) proposals, the petition fairly demands that the University take more seriously its positive equality duties, at least by clarifying how it sees those as relating to academic freedom.
We never run out of opportunities not to discriminate or not to harass, but serious opportunities to advance equality or foster good relations come up only now and then, and only in certain contexts. In a University, retirements are among those contexts. Every retirement frees up resources to do new and, if we can, better things. Instead of replying in its familiar, defensive, way, Oxford should have explained to the petitioners all the ways it has used things like Professor Finnis’s retirement to advance the equality of gay students. But perhaps that list was too short to merit mention?
SEMPER VIRIDIS 