Wednesday’s Child: My job description grows again

Every year, my job description gets longer. Research and teaching, obviously, and a share of university administration ancillary to that. (For instance, preparing the Law faculty’s REF submission and, more dangerously, chairing my college’s Coffee Committee [OfCoff!].

For the professoriate, these things have always come with the territory. Now, however, I am also drafted as a delegate authority to assist the government in implementing its political agenda. The UK’s self-destructive policies on migration, including the admission of foreign students, are to be monitored by people like me. I have a duty to report how often I lay eyes on my visa students. (What if Oxford students are not really having panic attacks in the library but are actually off in Isis training camps?) I also have a ‘prevent’ duty to make sure they aren’t being sucked into terrorism. (What if they come to believe John Locke’s claim that one may make a violent ‘appeal to heaven’ whenever the rulers try to govern without consent?)

My own view—I wish the Vice Chancellor would endorse it—is that these new duties must not only be ‘balanced against’ my duty to support academic freedom and my Public Sector Equality Duty to advance the status of protected groups—they must be subject to them.  Academic freedom and social equality should be side-constraints within which any ‘prevent’ duty or duty to monitor migration is exercised. Otherwise, the essential bond of trust between teacher and student will be ruptured, and the status of our universities will be undermined.

Consider this. If I do not see a postgraduate student at least three times in eight weeks, I need to report that to the administration.   If I have concerns about why I have not seen her, I need to report those too.  If I fear a student is being ‘radicalised’ I also need to report that. How will I know? The University has a duty to train me: ‘We would expect appropriate members of staff to have an understanding of the factors that make people support terrorist ideologies or engage in terrorist-related activity.’ Of course, the University can’t know what ‘factors’ cause support for ‘terrorist ideologies’ until it knows which ideologies are actually ‘terrorist’. No worries— ‘BIS offers free training for higher and further education staff through its network of regional higher and further education Prevent co-ordinators. ‘ I am not making this up.

Today, I learn that the government is pressing ahead with legislation to ensure that the security services have access to a year’s worth of our online data, including a complete list of every website you accessed. (If you haven’t done so, download Tor now, and browse with nothing else until this legislation is repealed or, if you are in Scotland, until independence frees you from still more English insanity.) The availability of this information will feed into the duty to monitor migration and prevent terrorism.

It isn’t hard to see where this could lead.  I’ve only seen a visa postgraduate twice in eight weeks? Her email says she is away conducting research in Washington. But we can check to see if she has accessed our servers, and from where, and what she is searching for.  We have a duty to keep that data.   A student used to favour power-sharing in Northern Ireland but now jokes that the DUP needs a whiff of gelignite?  I can alert the university to check out his Facebook and Twitter feeds.  Indeed, I must. The statutory guidance says:

‘Radicalised students can also act as a focal point for further radicalisation through personal contact with fellow students and through their social media activity. … Changes in behaviour and outlook may be visible to university staff. Much of this guidance therefore addresses the need for RHEBs to have the necessary staff training, IT policies and student welfare programmes to recognise these signs and respond appropriately.’

It is clear that this government cares little about academic freedom, civil liberties, or social equality. More surprisingly, they seem to care little about the competitive position of our leading universities. (Our opposite numbers at Yale or Harvard are not burdened by any of this–nor by REF or TEF.)   So where are our senior administrators on the issue?  Where is UUK? Where is the professoriate of the ‘elite’ Russell Group of British universities?  I guess they are all off at free BIS training sessions on how to recognize and prevent radicalization among  students.  Or perhaps at job interviews at U.S. universities.

Wednesday’s Child: The New vs The True

A paper by a junior scholar greatly impressed me. I thought it should be published. A distinguished philosopher did not share my view: ‘It’s warmed-over Rawls,’ he wrote, in a curt letter of rejection.

Now, I could see for myself that the central claim of the paper wasn’t completely new. But it was, I thought, completely true. And its case for a familiar truth was different from—though not inconsistent with—other arguments to the same conclusion.  So why the obsession with the new?

This misery has company elsewhere, including in the social sciences.   I do not only mean that, when others try to replicate famous ‘findings’, they cannot get the same results. I mean that hardly anyone tries to replicate anything.   You can see why. Replication is expensive and unoriginal. Editors do not fight over a paper that argues that the findings of an earlier paper are all correct. Hence, there is a high prior probability that a lot of what finds its way into print is rubbish. (And then that rubbish is cited, and the citations re-cited, by philosophers who want their work to be ‘continuous with’ the advanced social sciences.)

In the humanities we do not have the excuse that originality is cheaper than replication. Admittedly, some of our work is not truth-apt, and some that is truth-apt is not truth-oriented (for instance, because it is bullshit). But I imagine that most of us hope that our claims about things like justice or law are, if not true, then true-ish.   Yet our collective behaviour reveals a strong preference for the new over the (merely) true.

In my own fields, the pursuit of novelty has bad effects: one can be pretty sure that the next general theory of law will be more daft than the last one. And in moral and political philosophy writers continually ‘discover’ principles that no one in the history of humanity ever heard of.

The novelty-fetish has further  knock-on effects.   It isn’t enough for ideas to be new; others need to acknowledge that they are new, so small novelties get over-emphasised, and the errors of past writers exaggerated. No longer are others merely mistaken, misguided, or muddled—their claims must be ‘ridiculous’, ‘disgraceful’, or ‘ludicrous’. These epithets have various meanings, but they have a common use. They are all ways of pleading, ‘Don’t read him! Read me, me, ME!’

Though not excusable, this is understandable. Most of us write for a serious audience of a few hundred, of whom maybe a couple of dozen actually engage our work. (Legal and political theorists who imagine they have ‘impact’ in the halls of power, or even literature, mostly live in a hall of mirrors.) To lose a few precious readers to the judgment that our work is warmed-over Rawls (or Mill, or Marx…) feels like an amputation without anaesthetic.

We need to get over that.   David Hume exaggerated when he wrote of political philosophy that, ‘New discoveries are not to be expected in these matters.’ But he was not ridiculously, ludicrously, or disgracefully mistaken.   Here as elsewhere, Hume was mostly right—though with some one-sided over-emphasis.   And there was nothing new in that either.

Wednesday’s Child: When ‘Normative’ becomes Normal

I read in the BBC News Magazine that ‘Nightly dreaming is a feature of the normatively-functioning brain – it is therefore part of our biological inheritance…’ Ignore the glaring non sequitur. What about ‘the normatively-functioning brain’? Is that a thing? Does the author, Shane McCorristine, ask his doctor if he has normative blood pressure?

Language changes, and the normalization of pompo-verbosity is a vector of change. That is also what gives us ‘gender discrimination’ in the place of ‘sex discrimination.’ Generally speaking, this usage is harmless. No one thinks that appointing four male drag queens to the UK Supreme Court is going to fix its current ‘gender imbalance.’

The tendency to avoid ‘normal’ in favour of ‘normative’ has two sources. One is the disreputable desire to make a banal point sound fancy or academic. The other is the reputable desire to distinguish the typical from the desirable.  But we don’t need ‘normative’ for that. Your gran knew what ‘normal sex’ means and, like Dorothy Parker, she also knew that ‘Heterosexuality is not normal, it’s just common.’   Of course, Gran would have been able to master the phrase ‘heterosexuality is not normative…’ and even, ‘heteronormative sexuality is not normatively normative’.   It’s not complicated, once you know the code.

During a period of flux, however, we need to disambiguate. In contemporary jurisprudence, pervasive ambiguities have made the terms ‘normative’ and ‘normativity’ practically unusable. An article entitled, ‘Explaining the Normativity of Law’ could be about almost anything: there is no way of knowing in advance, and often no way of knowing in retrospect either. Here are some of  questions you might find addressed under that title, together what seem to me the right answers, in telegraphic form.

  • Q: What is the relationship between laws and norms? A: Some laws are norms.
  • Q: What motivates people to conform to the law? A: There is no interesting general answer.
  • Q: How does the mere existence of law give people reason to conform to it? A: It doesn’t.
  • Q: How is it possible that the existence of a law could give people reason to conform to it? A: It depends on what kind of reasons you have in mind.
  • Q: What explains the fact law provides a general moral justification for coercing people? A: There is no such fact.
  • Q: What warrants the use of normative terms in stating rules of law? A: The same kind of things that warrant the use of normative terms in stating rules of football or grammar.

As you can see, questions about the ‘normativity’ of law could be about the character of laws, about motivational psychology, about semantics, about practical reasoning, or about political morality. (I address some of the moral questions here.)  There are probably other possibilities too.

This makes it difficult, especially for beginners, to find a safe path into contemporary legal philosophy. Pitfalls that have always been there are now obscured. In 1957, Lon Fuller asked how there could be ‘an amoral datum called law, which has the peculiar quality of creating a moral duty to obey it’. The question-begging was so obvious that any undergraduate could step around it. But today, a begger of Fuller’s sort might ask, ‘How is the facticity of law consistent with its normativity’? Would you blame a student for thinking that there is a deep problem here? Or for hating jurisprudence?

I’m afraid it is probably too late for ‘normative’; it is going the way of ‘gender’. The best we can now hope for is logic-chopping to keep the path as clear as we can. It is so normal to use ‘normative’ for ‘normal’—and a bunch of other things—that that has become ‘the new normative’.  You ‘could care less’? I hope so.

Wednesday’s Child: Academic Over-production

Today’s woe is scholarly over-production.

No one keeps up with the literature. There is too much. Some of the causes are well known. In addition to an over-supply of people (which increases the number becoming academics), there is institutional pressure to publish almost anything. We end up with what my former colleague Harry Arthurs calls a ‘production-driven research culture‘. Enabling this, there are also too many journals—especially in the US, where student-run law reviews proliferate, pumping out oceans of poorly chosen work that is then often edited so as to make bad writing even worse.

Less well understood are two internal factors.   Young academics seem increasingly keen to adopt  a ‘line’: an outlook capable of generating an article on almost any subject. In addition, the Facebook generation seems addicted to ‘likes’: watching their SSRN or Google Scholar hits rack up, never mind whether anyone is reading or engaging with their work. A word of woe about each of these.

The ‘Line’

I don’t blame rookies for working a ‘line’. I have seen promising young scholars fail to get appointments because they were thought to lack one—‘She seems smart; but I don’t see what her line is’.   Or, ‘He wasn’t very responsive. I asked him what his view implied for my work on inter-state trucking law and he had nothing to say.’

Law and economics is a famously productive defence against such stupid criticisms; so too are the utilitarian and neo-Kantian machines that clank and chug along in their charming, steampunk, ways. Whatever their demerits, they have the merit of never leaving one without an opinion, and of leaving no doubt in others’ minds about what one’s ‘line’ is.

But there is a downside. Probably, no such ‘line’ could be faithful to the law we have, or to the law we ought to have. And if you have a ‘line’ you will need self-restraint in knowing when it isn’t worth pursuing. I imagine people thinking, ‘But I’m sure you are all wondering what my theory has to say about the Roman law of dogs.’ Actually, no; we aren’t. We know what your theory has to say about things of general interest: that is why it is a ‘line’. And what matters—to those who care—about the Roman law of dogs is the doctrinal lore. We already know that if dogs’ happiness is happiness then we should count it, and if dogs matter because they make people happy, then we should optimize the distribution of dogs.   And we already know that, outside a public order of Right no one really owns a dog. They may have dogs, yes (and the dogs may make them happy)–but they do not have their own dogs.   Like tic-tac-toe, these games are fun to play, but only with a child.

Working a ‘line’ also tends to generate long articles. Before you’ve spun your story, you can have twenty pages on the history of the ‘line’ and, after you’ve done it, you can consider twenty pages of objections, including those that would only occur, as Bernard Williams once put it, to the malicious or the clinically literal-minded.   Best of all are objections coming from a different ‘line’. ‘Lines’ live off each other, symbiotically. This produces still more writing.

The ‘likes’

Followers, views and downloads are the new academic’s equivalent to ‘likes’.   They live in hope of the SSRN message that tells them the paper they posted last week, in the dead of the summer, scores a top-ten download. Or that shows they have had viewers, or even followers, in Bhutan.

Now, no one can ‘like’ what you don’t write. And once written, you need to get it out anywhere and everywhere.   The otherwise admirable SSRN enables bad behaviour here. It is like taking whisky to an AA meeting. Since there is no substance editing in its journals, people need to rely on their internal editors to exercise restraint.  Few manage.

Often, there is often no editing of any kind. For example, In current number of the Philosophy of Law Ejournal (Vol. 8, No. 125: Aug 18, 2015) there are 12 papers, only two of which are even about the philosophy of law. The Social and Political Philosophy eJournal is as bad, or worse. Now, I do not really think that their authors imagine that the following papers are any kind of philosophy: ‘‘It’s Not for a Grade: The Rewards and Risks of Low-Risk Formative Assessment in the High-Stakes Law School Classroom’, or ‘What leads to Homeless Shelter Re-Entry: An Exploration of the Psychosocial, Health and Contextual Demographic Factors’. More likely, they were unable to resist ticking every conceivable box on the upload form, hoping for one more ‘like’ from someone, somewhere.

I am not sure how to cope with the pressures of the ‘line’ and the ‘like’.  And I don’t think it is always blameworthy to yield to them.  But in addition to external pressures to over-production it is certainly producing a tragedy of the intellectual commons.