Tuesday, December 20, 2011

'Public interest' at the heart of our education & research agenda

At a recent celebratory conference in Athlone marking 30 years of the Irish Association of Law Teachers, (the Annual Conference IALT Saturday 19th November 2011) I was asked to join a plenary session on the public role of the academic lawyer. Given the growth of legal scholarship in Ireland during that time which has been marked by a celebratory publication launch the night before, and given that we had also recently marked more than 10 years of the IRCHSS, I chose to reflect on how much has changed in higher education and research in our country in that time. Literally distinctive Irish legal academic scholarship had emerged, and the architecture (IRCHSS) supporting research and literature in the humanities and social sciences (including business and law) appeared.
The following is the piece of musing or writing which emerged, which I offer with apologies for the long silence and still incomplete thoughts. (Within you will glean how events such as the recent announcement of the merger of IRCHSS and IRSET intervened to distract me from my blog!) Happy holidays to all!


The Public Role of the academic lawyer
Annual Conference IALT Saturday 19th November 2011


As the theme of this conference is “Added Value(s)-The Role of Law in contemporary society” and in this plenary session we are asked to focus on “The Public Role of the academic lawyer’, I thought I would examine the role of the academic lawyer in the public sphere from perspectives, reflective of my own experience of that role, within the spheres of:
(1) education for democracy and active citizenship (as well as occasional but not compulsory legal representation); and
(2) the nature of the academy within which we work and our students study; and
(3) the research and education environment in which we currently find ourselves and where and with whom our shared interests lie when fiscal considerations transfix governments.




(1) Starting with education, one of my current favourite quotes on our role is that of Martha Nussbaum in Cultivating Humanity
“It is up to us, as educators, to show our students the beauty and interest of a life that is open to the whole world, to show them that there is after all more joy in the kind of citizenship that questions than in the kind that simply applauds, more fascination in the study of human beings in all their variety and complexity than in the zealous pursuit of superficial stereotypes, more feminine love and friendship in the questioning and self government than in submission to authority. We had better show them this, or the future of democracy in this nation and in the world is bleak.”


Nussbaum speaks of cultivating in ourselves ‘a capacity for sympathetic imagination’ that will enable us to comprehend the motives and choices of people different from ourselves. She notes that the arts play a vital role here: cultivating powers of imagination that are essential to citizenship. There is a tension she identifies however between the liberal arts and a move towards vocational education (& away from humanities) which given the challenges facing governments in a time of financial constraint may influence policy development in that area.
This movement and phenomenon is what Nussbaum in her later publication Not for Profit-Why democracy needs the humanities (Princeton University Press 2010, p2) terms ‘a silent crisis’
as
“... the humanities and the arts are being cut away, in both primary/secondary and college/university education, in virtually every nation of the world. Seen by policy makers as useless frills, at a time when nations must cut away all useless things in order to stay competitive in the global market, they are rapidly losing their place in curricula, and also in the minds and hearts of parents and children. Indeed what one might call the humanistic aspects of science and social science-the imaginative, creative aspect, and the aspect of rigorous critical thought-are also losing ground as nations prefer to pursue short term profit by the cultivation of the useful and highly applied skills suited to profit making.”


If we think that too farfetched consider the forthcoming Forfas paper on research prioritisation - in it there is not one reference to the social sciences and the only reference to the humanities is in the context of digitisation. A second relevant development nationally is that of the technological Universities which will pose a considerable challenge to the traditional Universities, in that as Nussbaum again notes (at p 23)
“...all over the world, programs in arts and the humanities, at all levels, are being cut away in favour of the cultivation of the technical. Indian parents take pride in a child who gains admission to the Institutes of Technology and management; they are ashamed of a child who studies literature or philosophy, or who wants to paint or dance or sing. American parents, too, are moving rapidly in this direction...”


For lawyers any such impoverished view will lead to a move away from much of what we have gained as we moved closer to the heart of the academy-a focus on us as the ‘regulation or policy implication additions on to scientific inquiry-the campus lawyers (unpaid) or simply the pathway to vocational riches in legal practice.
The reason I liked or related to Nussbaum’s concept of the cultivation of a narrative imagination, is that I recognised it as coming close to encapsulating some of what has motivated my teaching criminal justice and evidence. In that realm the ongoing and continuing challenges to liberal democratic regimes posed by the accommodation and occasional disruption of political dissent and/or terrorism as manifest in the absorption of the state’s extraordinary response has fascinated me for many years. That theme of how much we tolerate in the name of our values in liberal democracy resonated for me with how much we tolerate in a trial in the name of justice and fairness; and how challenged we are by our (in)ability to identify with the accused-whether s/he is one of us, and what if they are not? The construction of a public discourse on these issues, the role of the media and the absence or compromise of democratic debate also proved a powerful element in consideration of this contemporary cultural interplay. A masters course emerged from this work, and in due course grew to an LLM in Criminal Justice. The option I offer on that programme Dissonance Terrorism and Criminal Justice focuses on these issues and themes, from a lawyer’s perspective, but drawing on material from other worlds that of the ‘real’ world of legal practice as well as those of literature and film where possible. In some senses the course merits a health warning for the law students as it attempts to engage them in a process of ‘unlearning’ what they had been taught as undergrads. Side by side with the clinical experience for those on the LLM Criminal Justice and its crash course on the realities of the practice of law, and the input of those who work in that general area (probation officers, victim support, the police and prison services etc), it can prove a heady combination. Although it offers no certainties however, and asks more questions than it ever answers, is run as a seminar or ongoing conversation with the students, where they have to do advance reading and lead the discussion (ie do most of the hard work!) it has proved to be the most satisfying course of my career-and I gather the students like it too. In sum, the course has its genesis in what might be termed legal deafness or the blindness of perspective, as manifest in the legal system, and the education of law students. Ultimately the aim is to develop a counterveiling wariness of assumption and certainty as well as of bias; and a sensitivity to the ‘other’ point of view. (hence the recognition factor in Nussbaum). A degree of respect for and comfort with the messiness, or straightforward inevitability of contradiction, is also helpful in navigating the course materials, as well as an appreciation of the value of dissent. It seems to me there is a lesson there not simply for lawyers or law students-but for all those interested in citizenship and education; and the value of these issues for our democracy where as Nussbaum’s warns :
“It would be catastrophic to become a nation of technically competent people who have lost the ability to think critically, to examine themselves, and to respect the humanity and diversity of others…It is therefore very urgent right now to support curricular efforts aimed at producing citizens who can take charge of their own reasoning, who can see the different and foreign not as a threat to be resisted, but as an invitation to explore and understand, expanding their own minds and their capacity for citizenship.”


Gayatri Chakravorty Spivak a literary critic and theorist who participated in the Cork Caucus on art possibility and democracy devised by the National Sculpture Factory as part of Cork’s tenure as European Capital of Culture, made the observation that her teaching experience over the past few decades, has firmed up her conviction that education, whether verbal or visual is to teach how to construct the object of knowledge. (Emphasis added)
“Therefore, for me, education is upstream from content. You can change your mind about content more easily than you can change the habit of a mind that makes you build what you know as you do. I also believe this is the only way to share epistemic formations. It is the only way to form a collectivity. I believe further that such formations are nearly always in the nature of unintended consequences. I think this is because education-this teaching how to construct, deliberately or not, the object of knowledge through the arts, through literature, through philosophising-is at best an un-coercive re-arrangement of desires. And yet, the element of persuasion in teaching is not so far from benevolent and patient coercion. That is where the element of surprise, of unintended consequence, of the ‘will have been’ comes in. You must let go so that you can be surprised, because otherwise-and given the educative process itself you cannot- in spite of the best intentions and deliberately non-hierarchical behaviour-you cannot altogether not coerce benevolently.”


I am sure that any of you who has struggled with the certainties of a newly minted law graduate in a Masters class, or the lifelong banker or tax inspector in an evening class, know what I mean-sowing the seeds of doubt in a mind that has been well schooled in a particular fashion is not an easy task-but a worthwhile one when it works! The height of my own success was when an elderly retired bank manager, a student in evening law having listened to me opine and occasionally rant over the course of a four year evening degree, with Introduction to the legal system (which I transformed into feminism 101); followed by criminal law where there was copious reference to MacKinnon and Dworkin (Andrea); through to the law of evidence (lots of terrorism) and labour law (more equality), he finally said to me after those four years of togetherness: “ I suppose there is another way of looking at things-you’re not right mind, but I see there is another way.” Success!


The LLM course I now teach focussing on the partiality of legal construction (at trial) and how terrorism and criminal justice interact explores that view. It forces students to think about what thinking like a lawyer means. It does so in an attempt not just simply to have them ‘un learn’ what they know but to explore how we might challenge the lawyer-or law student- perspective by looking at things differently –and at different things. The limits of the past affect how we see the present (Douzinas) as the role of art is often to force imaginings where reasoning will not go (McCann). The trial as the most visible (though not real as experienced-hence symbolic) aspect of the legal structure serves admirably as the locus of an inquiry into how such a framework constructs the past through the present while influencing the future. The result is illusion (not to say elusive) in its resemblance not at all to ‘what really happened’, but it constructs/decides/identifies for us what is truth, fairness, justice even just as it nominates who we are and who are other(s). In that sense the trial becomes a kind of moral compass for our lives.


Dame Sian Elias (CJ New Zealand) in the 8th Sir David Williams lecture 16 May 2008 on ‘Taking rights seriously’ makes what she terms a pratical point with some relevance here:
“…a critical role played out by law in our societies is as a method of argumentation. ....Expression of values which bear on the outcome promotes understanding and participation. Now this is not a claim for a process based theory of the Constitution, it is a more modest and practical point for the explanation of constitutional law through common law method and real controversies is valuable in itself”.


Our method is part of what we do and teach in legal education, and part of our contribution to the public is the training of lawyers- in a form of argumentation and consideration which exposes them to the other point of view-enabling them to empathise with the other, represent the other point of view, articulate from the narrative imagination.


How does this tale relate to the public role of academic lawyers –outside of that which is involved in the education and training of our students many of whom will become lawyers? Here I want to turn to focus on and within the University, considering the nature of the academy within which we work and our students learn.


(2) Nature of the academy
There is a parallel process of challenging our own disciplines and that of the structures within which we work- or there should be.
Kathy Lahey whom I quoted when delivering the UCC Annual Equality lecture many years ago wrote about tenure expounding the view that we should pass it to that ‘irritating young person down the hall’. While I am conscious that I am no longer that irritating young person (though the adjective still may have credence!), within our discipline of law the narrative of my own work reveals an interesting truth:
For years I focussed on the crime of rape -the choice an obvious perhaps even a stereotypical one you might say. Reform of the law on rape focussed initially on how it is named and defined-anatomical constraints etc-a very male point of view.(Andrea Dworkin-what bits go where in case we’d get it wrong)
Engagement with and of activists became part of that narrative and the long struggle that led legislatively to rape being on the legislative floor twice in Ireland in the decade 1980-90 (manifesting Carol Smart’s giving power to law)
The reality of course was that of the change in the law-the nomenclature-not working to effect what was wished for-a more effective method of investigation prosecuting and judging this crime perpetrated against (predominantly) women. The reason why requires uncovering the hidden truths of the male narrative-that of the power of adjudication in translation-the narrative that would be believed and recognised by the system of police prosecutors and juries-the importance of a story that has cultural resonance and recognition in a way that marginal stories of existence sometimes do not (the date rape scenario for example). These issues were ones of credibility-legal assumptions and rules about same (corroboration) and assessments and barriers to relevance-past sexual history having something to say about consent for example.
The court room and trial narrative-cross examination and the factual context-and therefore belief-on the part of the jury are powerful layers here. The judge and jury will ultimately endorse a story which they recognise as true and society will comfortably mark as unacceptable behaviour which it already knows is-and so the pattern is circular and the voice which attempts to challenge that is silenced.
Hence my interest now in the underbelly of the criminal justice system-the way allegations get turned into truths and fact finding a creative and interpretive process. So how is this tale which might be described as a tale of misdirected energies limited effect and hence defeat, reflected in particular in University hierarchy where some of us occasionally find ourselves?
If you have ever felt the real conversation is being held elsewhere-or that once you are on the Committee the really important meeting is held before that committee meets, I think you are probably part of that community of voices that don’t get heard in the corridors of power. One of course needs critical mass to change narrative/challenge assumption & truths. You also need bravery on the parts of those there not simply to buy into the assumptions and presumptions of truth that about-nor indeed the ready roles you will be given! Challenging a narrative in a powerful way sometimes involves embracing the ‘other’. In my area of interest Justice Catherine McGuinness did this powerfully in my view when in constructing ’fairness’ she pointed out it was just as unfair to assume credence on the part of an allegation of a historical claim of sex abuse, as it had been to automatically disbelieve rape victims. That alternative narrative she endorsed there offered a genuine alternative perspective and is in that sense a ‘game changer’.
The challenge for us is how in our universities to have the hierarchies know that same effect.
Kathleen Hall terms 'a new politics of knowledge' the "…setting the perameters for how we think about the purposes of education and is silencing alternative forms of politics, educational visions and expertise by challenging their usefulness, relevance or scientific rigor".
This is significant because defining what is 'relevant' 'useful' or 'credible' knowledge-or what delivers limits our view:
To quote Hall again in the context of education:
"This discourse is producing not only strategies for improving education, but the boundaries of what remains outside-unspoken, unspeakable, and unthinkable-within the terms of this debate. Fundamental questions about the purposes and politics of education and its relation to the common good cannot be easily formulated within a system orchestrated by the logic of calculation and of measuring outcomes and results. What matters is what works, it is said. Yet is knowing what works all that matters?"
The old humanities idea after all was that knowledge is capable of being its own end (Cardinal Newman). In terms society and influencing public policy, I would suggest that the public interest dimension to the academic endeavour is key. To quote from Kathleen Lynch in a recent paper presented to the European Conference on Educational Research (ECER) where she reminds us that Universities and other higher education institutions have justified public funding for their activities on the grounds that they serve the public good:
"[Universities and other higher education institutions] have traded on the Enlightenment inheritance that they are the guardians and creators of knowledge produced for the greater good of humanity in its entirety."
Some such as Wang speak of 'the decline of the Humanities as a precursor to its likely collapse in the not too distant future'.
This decline Wang says "…signifies more than the disintegration of the institution itself. Rather it represents the demise of the idea of the University as such. The idea that intellectual inquiry is worth pursuing in its own right has been not only a justification of the existence of the Humanities, but the very foundation upon which the entire edifice of the University rests…Unless the current trend is stopped…higher education will sooner or later cease to be an institution informed by intellectual autonomy; instead it will become an appendage of corporations, a place of professional and technical training tailored to the needs of industry and commerce. If this indeed comes to pass, it will perhaps be only in museums that future generations will find out what the University was once like. The farewell to the Humanities, for which we have been prepared step by step, will thus be farewell to the very idea of the University."
Lieberwitz has identified commercialisation of the University as a crisis for higher education:
"Commercialisation of the University is a crisis for higher education. By bringing market models into the core university research and teaching functions, universities have damaged their mission to serve the public. Crucial to the integrity of the university is the independence of faculty and the university from private financial interests, including those of corporate donors. This long standing principle …has been linked to the value of faculty academic freedom to pursue research and teaching that breaks new ground and challenges the status quo. These well-internalized academic values have created a strong presumption against the legitimacy of university commercial activities, given the contradiction between the university's public mission and the private good of the market"


Even though this may appear too ‘far fetched’ for the Irish academy, just consider the following:
• Proliferation of industry & university collaboration on research the recent Forfas prioritization exercise being a case in point.
• The power of the science paradigm in research. This is now since last week exacerbated by the merger of IRCHSS and IRSET risking loss of autonomy, dedicated funding streams for AHSS and law and social scientists diverting energies into 'collaborative' (funded- science identified with law as a policy implications 'add-on') research, neglecting other areas of enormous public interest (or none at all).


• Measurement (under the guise of accountability). RIS 'measurement/peer review may mean research similarly (mis)constructed. Citation indeces (and counting) may threaten public dissemination of research. Wang brings home the implications of this process of measurement (in which we are already involved, not to say complicit) and its implications for our disciplines:
"…one's position in the academic hierarchy has little to do with the "what" of one's work but everything to do with the "where", and the "where"- whether one publishes in prestigious journals or obscure ones-is determined not by whether one's scholarship provides original insights into important intellectual issues, but by how visible one has managed to become by following academic trends or by "subverting" them here and (535) there within the broad parameters of these trends. The determining factor, in other words, is not so much the intellectual choice and treatment of the subject matter as the relative standing of the venue of one's publications: so long as one publishes with the prestigious academic presses and journals, one's publications are "excellent"."


• Time (loss of the sabbatical) in a high teaching load environment where our disciplines may be treated as the cash cow of the Universities, threatening the solitary scholarly monograph (which takes time but breaks new ground). A mention also of the 'disappearing' academic- when one looks at the staff statistics and profiles in our institutions, it is striking how many are not traditional academics but research staff whose tenure may well be related to a certain grant or centre. Moreover the increased 'casualisation' of academic staff caused by the ECF, moves us away from academic tenure which Lieberwitz identifies succintly and powerfully with the heart of the academy :
"The tenure system creates a foundation to support the values promoted by academic freedom: free expression of controversial ideas-theories; experimentation with new research agendas; teaching that challenges majority views; disagreement regarding university policies; full collegial debates on academic decisions, including curricular development and peer reviews; participation in faculty self governance bodies such as faculty senates and policy committees and public statement concerning social issues."


These concerns need a voice. I might suggest ours because legal academics don't need a client-unlike their practitioner friends. They explore similar issues but with a broader brush, a different angle– that can be the public role (in part at least) of the academic lawyer.


(3) The research and educational environment.
A Shared project: Reconstituting 'public interest' at the heart of the academy and our research infrastructure


One of the interests we share in the humanities and social science and one that is critical for the future is precisely that of research which is driven by no agenda other than curiosity, acknowledges no standard except excellence, and aims at an understanding and contextual appreciation of the ‘grand challenges’ facing human existence. Addressing these questions at a critical time for university education and society in Ireland, is part of an endeavour which links our research and teaching, ensuring a quality future where teaching is not 'hived off' as a secondary, ill resourced, cash generating activity to bolster more expensive research activities elsewhere. By linking the two and making it integral to our methodology we will do our students a favour by ensuring they are not badly served, we will also secure the future of our discipline within the academy and our own. We will also challenge the orthodoxy that research is something performed by great teams in a lab at great expense to be promulgated by a select few in peer reviewed esoteric publications with no communication to the general public either feasible or desirable. It will meet head on any tendency to reallocate university budgets from arts social sciences business and law to subsidise science and engineering. But it does something more in insisting that the sum of knowledge is not quantifiable or manifest in technical tools or widgets, that the solution to all our ills (including jobs) is not in science and technology-and asserts that the really important line of inquiry may be the one not predetermined by a programme of funding but a scholar looking at the margins-turning things around, reading things backwards perhaps. The space for those contributions formed part of the European Horizon 20:20 discussions in the aftermath of the green paper which I attended in the British Academy in London, where it was acknowledged by our own Maire Geoghegan Quinn the relevant European Commissioner that the ‘grand challenges’-like climate change or security for example are not just to be solved and addressed by science. That is an important fissure in the straightened assumptions heretofore and we need to broaden that aperture and get in there. It needs reflection and repetition nationally where the new ‘research Council’ will need a strong HSS input and presence.




Barrett already questions"[t]he dilution of the higher education subsidy, by universities placing undergraduates in large class sizes and the downgrading of undergraduate lecturing by universities to cross subsidise other activities…[which is]...seriously open to question from the perspectives of taxpayers, students and the wider society."


Universities have transformed over recent times into powerful corporate networks, whose public values have been seriously challenged. Lynch's conclusion is that
"[t]he university operates in a complex cultural location in many respects. It is at the one time a product of cultural practice and a creator of culture; it is a powerful interest and a creator of interests. There is a sense in which its intellectual independence is always at risk, given its reliance on external funding from many sources, and yet its history grants it the capability to reclaim its own independence (Delanty 2001). To maintain its independence, the university needs to declare its distance from powerful interest groups, be these statutory, professional or commercial. It must not only do this rhetorically but also constitutionally. Maintaining a critical distance from the institutions of power is vital if one is to protect the public interest role of the university".


Liberwitz makes a similar point, that " [a]s Universities take on the identity of commercial corporations they may lose their unique position in society as institutions trusted to engage in independent research for the public good."














Our aspiration for the academy has to be a framework for securing traditional (and still important) disciplines as well as new emergent ones, which involves scholars and students engaging with the construction of the public interests. Internationally the identification of the issues and the questions which will be funded under Horizon 2020 and future programmes, are and will be significant for us. We have things to say about the grand challenges such as the sustainable society and security from crime, that are greater than the sum of the technocrats’ ability to design ever more sophisticated surveillance or tracking devices for instance. The importance of preserving space for research guided by the ground up-not programmatic-individual inquiry and alternative narratives is vital here in the public interest. Nationally for Ireland, it is important to have the architecture and capacity for research in the Arts Humanities and Social Science (including business & law) which will allow us to stay on and influence that European field. The merger of the IRCHSS and IRSET into a new conjoined research council undoubtedly weakens that structure, unless we are very careful indeed to preserve the autonomy and funding streams within what emerges. The legacy of the celtic tiger for many of those disciplines including law, for instance, that is often forgotten or unacknowledged, is the body of newly or recently minted PhD graduates who were IRCHSS scholars, many of them who had opportunities in this country well beyond previous generations’ imaginings. They are the intellectual capital of this economy and society.
At the national European level we need to claim the relevance of our disciplines to the grand challenges by addressing issues that are central to AHSS. In terms of engagement with the University as a whole we need to be part of a community of scholars central to the academy and committed to public interest and the cultivation- and on occasion- of dissent within the academy and research.
Law has over the past 30 years in the academy in Ireland exhibited a transformative capacity, as celebrated by the IALT last night. I believe that leaves us well placed to do more outside that place of ours – and that for the sake of the public that we should. Having moved outside my comfort zone of the Law Faculty in UCC (still my true home), I can offer some perspective on that and also a minor health warning connected with my own experience of now being on the margins out there and how that feels. Here I quite like a quote from Tony Judt in The memory chalet (at p.206-7):
“I prefer the edge: the place where countries, communities, allegiances, affinities and roots bump uncomfortably up against one another-where cosmopolitanism is not so much an identity as the normal condition of life
...To be sure there is something self indulgent in the assertion that one is always at the edge, on the margin. Such a claim is only open to a certain kind of person exercising very particular privileges. Most people most of the time would rather not stand out: it is not safe.” (emphasis added)
“But if you are born at intersecting margins and thanks to the peculiar institution of academic tenure-are at liberty to remain there, it seems to me a decidedly advantageous perch: what should they know of England who only England know?”

2 comments:

  1. Like many other IRCHSS funded scholars I received an email on behalf of the Council at the time of the merger announcement advising of the change and that it should be seen as a positive development . Given your `musings` now are you saying as chair of the Council that the merger is not the positive development claimed in the IRCHSS circular? Great if you are as the original statement worried most of my colleagues in the HSS research community and raised many questions regarding the policy competency of the Council members.

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  2. regarding the policy competency of the Council members.https://www.afu.ac.ae/en/sru/goals/

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