I apologise that I have not been around much. Things have been very busy - teaching an intensive subject, several illnesses in my extended family, trying to deal with university bureaucracy… I did not realise how prescient this piece would be when I wrote it back in early 2023.
While scholars can be advocates for a particular view, activist scholarship is inimical to the mission of open-minded and inquiring scholarship. I don’t care in which direction the particular activist barrow is being pushed: left, right, or another direction entirely. Advocacy is one thing. Activism is another.
First, I need to define what I mean by “activist”, simply because, when I’ve written on this before, I’ve been chipped for not being clear. The Merriam-Webster dictionary says that activist means “a person who uses or supports strong actions (such as public protests) in support of or opposition to one side of a controversial issue.” Activism, to me, is not simply advocating a point of view. It is adopting one side of a debate wholeheartedly, to the point of taking strong actions to support it.
The corollary to this, often, is that anything said which questions the activist account in any way, even a small way, is verboten, evil and ridiculous. Strong action must be taken against questions, and they must be shut down.
Advocacy is different. Advocacy involves arguing a particular point of view strongly. I believe advocacy is appropriate in an academic context, as long as the possibility of other credible points of view are acknowledged, and the reader is shown where those points of view can be found.
Let me explain the difference between advocacy and activism. The common law system is adversarial: both sides make arguments for their client’s position. Barristers are hired guns, advocates who argue for a fee. They often argue points with which they personally disagree, but I know from my experience of being a legal practitioner that knowing the other point of view makes one’s arguments better, because you can anticipate what the other side may raise against you. Secondly, barristers owe an overarching ethical duty to the court, beyond their duty to the client, to bring to the judge’s attention cases or laws which may conflict with their argument. To be a good advocate, you must note the flaws with your own case, and that there are other points of view.
To make a fair decision, courts must be in possession of the full picture. This means an advocate signals trustworthiness by conceding that there are points against his or her case. A very good advocate acknowledges the downsides of her case.
The question of trustworthiness is of relevance for academics as well as barristers. While partisan work may speak to the converted, it becomes less trustworthy to those who do not believe the fundamental premises undergirding the source. Activist material (of whatever stripe) goes even further than this. It assumes that certain contentious propositions are true, and that any questioning of those propositions is “evil”. The opposing view cannot even be mentioned, other than in passing, to be derided.
However, just as with arguments before a court, academic arguments become stronger, not weaker, when authors engage in good faith with opposing views, and note those views in their work, so that the reader can make up his or her own mind.
I know from personal experience that I resent it when I am told that a particular view is the only right one. This is so even if I am prima facie inclined to agree with that view. There’s nothing more guaranteed to get my back up than to tell me I have to agree with something, and that if I do not, I am an evil, stupid, or malicious person. I become suspicious and begin to question—why must I believe it? Why can’t I look at other points of view?
Any litigator knows that there are always two sides to the story. I am an ex-litigator and judge’s clerk. The best way to convince me of a particular point of view is to give me the options and let me think about it, rather than forbidding me from thinking about alternatives. I like to extend others the same courtesy in my work, and even more so in my teaching.
My own field of study, private law, has (at times) been riven by partisan disputes. No, not disputes of the party political sort! The disputes in our area tend to concern the appropriate way in which to theorise and conceptualise legal doctrine. For example, some decades ago, well before social media, a long-running dispute arose between Equity scholars and judges and restitution scholars and judges.1
Here is a quote from the fourth edition of Meagher, Gummow & Lehane’s Equitable Doctrines and Remedies, written at that time by three Australian judges (the late Roddy Meagher, Dyson Heydon and Mark Leeming). It is a treatise which, from its beginning, has argued that the history of procedural reforms in the late nineteenth century must determine how Equity law interacts with common law doctrine in the modern day:
The fusion fallacy involves the administration of a remedy, for example common law damages for breach of fiduciary duty, not previously available at law or in equity, or in the modification of principles in one branch of the jurisdiction by concepts that are imported from the other and thus are foreign, for example by holding that the existence of a duty in tort may be tested by asking whether the parties concerned were in fiduciary relations. Those who commit the fusion fallacy announce or assume the creation by the Judicature system of a new body of law containing elements of law and equity but in character quite different from its components. The fallacy is committed explicitly, covertly, and on occasion with apparent indifference. But the state of mind of the culprit cannot lessen the evil of the offence.2
In a move I can only applaud, in the fifth edition of the treatise, the approach of the authors was much more temperate, and the above passage has been moved to a footnote.3
And here is the late Professor Peter Birks, in his famous treatise, An Introduction to the Law of Restitution, suggesting that a restitutionary analysis is essential to private law, particularly in the area of unjust enrichment, but also in private law more generally:
The first evil [of a failure to accept unjust enrichment analyses] is the uncertainty which comes from there being no shared and stable pattern of reasoning. In contract or in tort, whatever differences of detail there may be, everyone knows roughly what analysis must be used to solve a problem or to structure an argument or judgment. The stability in those areas is based ultimately on a common sense grasp of the events which are involved, agreements, careless injuries, defamations and so on. These elementary images, accessible to a child, are starting points from which the evolution of a stable analysis begins. In restitution even this starting point is missing. Failure to adopt and use the words of the generic conception has meant that there has been no description or image to elaborate and analyse. In the result it is almost impossible for two lawyers to converse about the subject, for want of a common framework.4
Note the highlighted words in each passage. The authors suggest in either case, that if the reader fails to adopt the suggested analysis, he or she may fall into “evil.”
The two views were fundamentally incompatible, with Gummow J of the High Court of Australia (who falls into the Equity camp) ultimately decrying the “top-down reasoning” of restitutionary scholarship in Roxborough v Rothmans of Pall Mall Australia Ltd.5
If you are not part of this debate, you may be bamboozled, and perhaps even inclined to laugh. Please don’t worry about the details, just accept my assurances that this was (and maybe still is) a deadly serious debate. Each side thought its analysis was essential, because it ensured that the law was properly and justly administered.
It appears that I am evil, because I don’t accept either analysis. In fact, I tend not to favour complete theoretical systems. All too often, theories are Procrustean: theorists have to chop off the law’s limbs in order to fit it into the theory.
Moreover, I don’t think people who disagree with my academic ideas are evil. I have friends, colleagues, and acquaintances whose views differ very much from my own. These people live in different countries, have different religions and ethnicities, range across the political spectrum, are within academia and out of it, and have different social backgrounds and preferences.
It should not be necessary to say this, but people who think differently from me are seldom evil. They tend, however, to rank things differently from me, and their views have been shaped by different priorities and experiences. I have learned much from talking to people with very different views. Exposure to different views is essential to learning. I cannot think of anything more boring than reading academic pieces which all say the same thing, disagreeing only on the details. I love reading well-argued views that are different from mine, and I find constructive disagreement very productive.
Why, then, do people seek to persuade others? And why do others accept it?
Robert Cialdini’s book Influence is instructive on why people seek to persuade others to accept their viewpoints. He recounts how some researchers infiltrated a small doomsday cult. The cult believed that a flood would engulf the world, but that believers would be saved by a spaceship. Prior to the predicted flood, the cult was quiet, almost secretive. When the predicted flood and salvation by the spaceship did not transpire, their behaviour changed entirely. Cialdini notes that the group members had gone too far into their beliefs to see them destroyed—some had quit their jobs and given up all their money, or alienated family.6 It was precisely when the views had been thrown into uncertainty that it was necessary to seek social proof:
The greater the number of people who find any idea correct, the more the idea will be correct. The group’s assignment was clear; since the physical evidence could not be changed, the social evidence had to be. Convince and ye shall be convinced!7
In other words, sometimes, when we are uncertain of our beliefs (and feel worried that we may be wrong), we seek “social proof” to make our beliefs more certain. If other people also believe, then we feel less wrong. Often, on controversial questions, there is considerable uncertainty. What comfort, then, to believe that one has the solution; and of course, one must convert others.
But that doesn’t explain why eminent scholars and judges would describe anyone who disagrees with them as evil. Why would this occur? In The Status Game: On Social Position and How Use It, Will Storr explains why this might be:
Our status games are embedded into our perception. We experience reality through them. So when we encounter someone playing a rival game, it can be disturbing. If they’re living by a conflicting set of rules and symbols, they’re implying our rules and symbols - our criteria for claiming status - are in invalid, and our dream of reality is false. They’re a sentient repudiation of the value we’ve spent our lives earning. They insult us simply by being who they are. It should be no surprise, then, that encountering someone with conflicting beliefs can feel like an attack: status is a resource, and they’re taking it from us. When neuroscientist Professor Sarah Gimbel presented forty people with evidence their strongly held political beliefs were wrong, the response she observed in their brains was ‘very similar to what would happen if, say, you were walking though the forest and came across a bear’.
When this happens we’re often compelled to take comfort in the presence of our like-minded kin. …
But the dream is now becoming dangerous. It takes the differences between us and our rivals and weaves over them a moral story that says they’re not simply wrong, they’re evil. …8
In academia, there are clear status advantages to following a particular school of thought, whether consciously recognised by the players in the game or not. As I have noted in an earlier post:
Academia involves what author Will Storr calls a “status game”. In The Status Game: On Social Position and How Use It, he argues that are three ways in which humans gain status: through dominance (forcing others to respect our status by brute force), through virtue (convincing others that we are worthy by demonstrating belief or behaviour which serves the group interests, and decrying people who are not virtuous) and competence (being the best at something). His book made me realise that I am an end-product of Western status games of competence: “acclaim is earned by what you do, not who you are.” Who I am is irrelevant. I want to be judged by my output, regardless of who I am.
Convincing others that we share the beliefs of a larger group is of obvious utility in academia. This is even more the case when one’s promotion depends in part upon citations, reviews, and the opinions of other academics. Status through virtue becomes a wise strategy to adopt: a signal that you serve the group interests. And of course, some are true believers.
This is how activist scholarship develops in academia. The metrics of success exacerbate the problem.
As I said above, it doesn’t matter to me whether the point of view proposed is left-wing, right-wing, or something else altogether. It’s fine to say that another scholar is wrong, especially if you justify exactly how they are wrong, and if your criticism is constructive.9 Indeed, it’s very important that you be able to do so for the development of scholarly knowledge: that is the core of academic freedom. It’s not fine to say that another scholar is evil simply for disagreeing with you. This is inimical to academic freedom, and freedom of conscience.
Moreover, scholarly activism does not aid teaching or learning. I’ve said before that I do not believe that it is my role as a lecturer to tell my students (or anyone else, for that matter) what to think, i.e. what the “correct” views are on a controversial issue. My role is to teach students how to think for themselves. I tell students that there are different views on an issue, and try to set them out fairly, or at least, if I can’t describe a view very different from my own, refer students to sources which eloquently argue a different view. It is up to students what view they personally adopt, and I will not penalise them for adopting views different from my own. Naturally, in class discussions, I require contentious issues to be discussed civilly, and I set out rules for such discussions in my first class.
I have come under fire for saying what follows previously, but I will say it again: the more activist and polarised academics become, the more they will be doubted and distrusted by those who have different experiences or beliefs. Many students will publicly express a preference which matches that of the lecturer, at least while they are at university, because their grades depend upon it, but underneath, they may have doubts. Intelligent students who possess different views may later come to resent the academy for treating their views as evil, and when those people come to power, they will wish to shut down or largely gut the academy, because they regard what they were taught as authoritarian nonsense, where they would be penalised for disagreement.10 That is my fear, a fear based on frank conversations with people who have different politics. (Of course I have pleaded with them not to destroy the academy, but I do not think I have been successful in persuading them.)
In our academic work, we can be advocates for a particular point of view, and indeed, it would be strange if we were not. But, to me, being an advocate means noting that others may have a different view, and not writing them off as evil or misguided. It means for me, as a legal academic, citing cases, legislation and scholars which conflict with my arguments, not simply ignoring them as though they don’t exist. It means being courteous to those who read our work by trusting them to judge for themselves. Advocacy generally flows from researching all points of view, from informed judgment and knowledge. And a true advocate generates trust, even if she has a particular point of view.
Activism, on the other hand, presumes certain knowledge is inherently true, and allows no room for dissent. I believe that there is no place for activism in academia. I do not want to be the academic with whom people agree simply because they fear being scorned or ostracised or sacked. I want my colleagues and my students to think for themselves, to come up with interesting and different points of view, to challenge me, and for us to learn from each other. That’s what the academy should be about.
The Equity scholars and judges mainly hailed from New South Wales, whereas the restitution academics and judges had often studied in Oxford or been influenced by scholars there, but some were Australian as well as British. In my view, the tussle reached its nadir when the High Court of Australia handed down its decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, where, at [131], a unanimous High Court said that the decision by the New South Wales Court of Appeal to take a restitutionary analysis in the case below “was very unjust and it has caused great confusion.” I thought this was unduly personal towards the New South Wales Court of Appeal bench involved.
RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow and Lehane’s Equity – Doctrines and Remedies (Sydney: Butterworths, 2002, 4th edn) pg 54.
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (Sydney: Lexis Nexis, 2015, 5th edn) [2–140], [2–145].
Peter Birks, An Introduction to the Law of Restitution (Oxford: Clarendon Press, 1989, rev’d edn) pg 19.
(2001) 208 CLR 516, [2001] HCA 68, [72]–[74] (Gummow J).
Robert B. Cialdini, Influence: The Psychology of Persuasion (New York: Harper Collins, 2007, rev’d edn) pgs 127–28.
Ibid, pg 128.
Will Storr, The Status Game: On Social Position and How We Use It (London: William Collins, 2021) pgs 158 - 159.
It’s nicer to be civil to one’s opponents—people are more likely to listen to you!—but I recognise that civility should not be a precondition to academic freedom, as Carolyn Evans, Josh Forrest, Adrienne Stone and others have argued. See my previous post.
It is possible to disagree, but there is a perceived risk that one’s grade will suffer for expressing different views.
Very true, and I'd add "journalism is not the same as activism OR advocacy."
Academia should be about searching for the truth, not pushing one's own version of it and shouting down all the others.