Academic lawyers, civic engagement, and human rights

I was very pleased to speak at the inaugural UCD Student Legal Convention on Thursday of last week. The Convention, sponsored by A&L Goodbody and associated with the Student Legal Service (of which I was senior treasurer when I worked in UCD) brought together an impressive range of speakers from politics, the senior civil service, the legal profession, the judiciary and the academy to discuss a broad variety of topics. I spoke on the panel on civic engagement and below are my speaking notes. The delivered remarks were considerably shorter but adhered to the general ‘gist’ of the below.

Although rights are not merely legal instruments, the effective enjoyment of rights often requires legal work; not just litigation, but also the construction of arguments around the desirability, meaning, consequences, content and enforcement of rights. This extends across the drafting of legislation and regulations, implementation mechanisms, policy making, assessment, international rights-related supervision, and international and domestic litigation. In Ireland at least some of our public debate about rights happens in the context of constitutional referenda of which we have a fairly high number and which, although political, are often—and in my view rightly—heavily informed by legal analysis, debate and information. This has extended into the Constitutional Convention which has welcomed and used very well the expertise and perspectives of lawyers from across this island and, indeed, beyond in presenting perspectives and arguments to the delegates to inform their debates and final votes. Even beyond formal debates around constitutional rights that are framed by constitutional events such as referenda, the Convention and high profile constitutional litigation, much public debate about rights in Ireland is deeply intertwined with law and lawyers can and do make important contributions to those debates. In this context, academic lawyesrs have something important and distinctive to bring by means of civic engagement.

While there are still some academics who practice law and some of those also engage in research, I am speaking here primarily about full time professional academics, not because other colleagues are not valued or do not have something to contribute but because that is the model with which I am most familiar both as a full time academic myself and as a member of a research-intensive Law School and University where all academics are researchers.

So what is distinctive about what academics can contribute? To answer this question one needs to think a little bit about what academics do. Contrary to some popular opinion we do not spend all or even most of our time teaching. Teaching is part—but only part—of what we do and it happens in lectures, seminars, tutorials, office hours, supervisions, un-timetabled discussions in corridors and hallways and at dinners and events like this. Like all other professionals, we also spend time engaged in grinding bureaucracy around form filling, meetings, marking, peer assessment, university governance etc but that hardly makes us distinctive. Rather, what is distinctive about the academic—and what the academic can bring by means of a valuable contribution and civic engagement—is research.

Generally speaking, those of us engaged in legal academic research seek out, see, explore, understand and try to resolve big questions in broadly understood ways. Rather than trying to resolve a particular question in a particular set of factual circumstances with particular implications for particular people, such as practitioners acting in a case might do, as academics we try to see what the broader questions of law, policy and society that underline many of these disputes are and to come up with ways to suggest why these questions matter, how they might be resolved, and what the implications of those potential pathways towards resolution might be for individuals, groups, society, legal structures and so on. We have the privilege—and it is a privilege—of thinking through these ideas without the immediacy of a client or the need to find a way to reach a particular conclusion. We also have the space and the right—protected by tradition, convention and law—to think independently, set our own academic priorities and agendas, speak freely and engage with stakeholders to inform our research.

In this academics are also different from politicians. Unlike the politician, we are and should be judged not by the view that we hold but by the rigour with which we reached that view; the strength of the arguments we make to support it; the extent to which we handle both supporting and opposing views; the methodologies that we use and our openness to being persuaded by stronger evidence. It is within the best traditions of our profession that we disagree—often very strongly—but that our disagreements are fruitful, constructive and oriented towards the advancement of knowledge. This is why people with different views teach together, write together, design and run projects together; because we are fundamentally interested in advancing knowledge and helping to resolve big questions. This is also—and I hope we can all agree on this—why we are paid primarily through the public purse and why public discourse that focuses solely on academics’ timetabled contact hours should be strongly resisted not only by academics but by our students as well. It is also why the contribution that academic lawyers can bring to human rights discourse and rights work is distinctive to that which practising lawyers bring.

Those contributions are large scale (i.e. understanding what rights are, how they should work and how they can be framed in abstract terms), smaller scale (i.e. recommending changes to legislation or advising NGOs or practitioners on thematic areas of work), and discrete (i.e. engaging with consultations, litigants etc). They comprise not only of providing evidence bases for policy and law reform, but also in suggesting imaginative ways of tackling issues, constructing arguments, and advancing law. In my view these contributions are very important not only because they flow from rigour and are independent, but also because civic engagement of this kind is part and parcel of being an academic; someone who is—and let us be clear about this—paid with all-too-scarce public monies to think and to communicate those thoughts.

Of course, large numbers of academics do engage in rights work and in lots of different ways. Some that come immediately to mind include: sitting on committees and statutory bodies concerned with rights such as the Irish Human Rights Commission and ad hoc working and expert groups; agreeing to be nominated for and/or serve in international bodies and tribunals; responding to public consultations and appearing before parliamentary committees; working with NGOs in advisory and directorship capacities; participating in public debate on rights-related matters in order to ensure there is an informed debate including through blogging, twitter etc; presenting at public events such as the Constitutional Convention; undertaking commissioned research to add to the evidence base in major policy fields; and engaging informally with key decision-makers and stakeholders on rights-related matters (politicians, judges, practitioners, NGOs, journalists etc).

Academic lawyers can and should do as much of these kinds of activities as their expertise and resources allow. However, there are significant barriers in the way. The first is very simply a fundamental misunderstanding of our job by research users such as journalists, politicians and the public at large. Very often people simply do not know what we do, and in many ways that is our fault as well as emanating from the persistent political trope that privileges timetabled contact hours in the discourse about academics. This misunderstanding sometimes, though not always, extends to the traditional legal professions and better communication between academic and practising lawyers is badly needed. That is not unique to Ireland, but in other jurisdictions some structures are in place to ameliorate it such as Academic Fellowships in Middle Temple and academic memberships of some Chambers in the UK.

A further challenge lies in the paradoxical ratcheting up of expectations around research quality and quantity within academic structures and the simultaneous plummeting of resources so that with the same amount of time and considerably less research funding academics are supposed to teach more students, mark more assessments, attend more meetings, do more research, publish more papers and build more international profile. With the best will in the world academic lawyers cannot continue to contribute significantly to the evidence base in policy making and legal reform–or even to increase that engagement–with fewer and fewer supports and resources.

A serious challenge for individual researchers lies in ‘getting known’ so that one is actually asked to contribute to these processes. In Ireland, but not only in Ireland, it sometimes seems as if the same people are frequently asked to contribute even in areas where their expertise is only tangential; as if what is required is more to sound like one is an expert, rather than to actually be one. Intended or not, such patterns can bring advantages in profile to people based on gender, location, availability to comment at the drop of a hat (which often advantages men over women especially around news cycle high points of 8am in the morning nad 9pm at night when breakfasts, dinners and bedtimes are often in full swing) and so on. Thankfully, this pattern seems to be changing in Ireland, and measures such as the public advertisement of major positions like membership of international and domestic committees and bodies is to be welcomed, but journalists, special advisors, practitioners and others must be prepared to simply try harder to find expertise–and academics must be willing to try harder to get their expertise out there. Again, blogging and so on helps with this, as does participation in structures designed to bring research out of ‘the university’ and into public discourse such as The Conversation UK supported financially by numerous universities. In other jurisdictions regulatory incentives to generate and document ‘real world’ impact from research (such as the REF’s impact requirements in the UK), although controversial and sometimes criticised, have effectively forced universities into supporting academics in learning how to engage with research end users and the public in order to translate research into public processes of reform, debate and discourse. These kinds of nudges within regulatory frameworks mean that academics who are committed to civic engagement can now enjoy rewards in career progression for that difficult and consuming work, and that research end users (including NGOs, politicians and journalists) have become aware of the importance of providing the quid pro quo of attribution and recognition when research is used, thus creating more rigour and intellectual contestability within public debate.

None of these barriers is insurmoutnable and indeed if we look around at stuctures to support civil engagement by academics elsewhere this becomes evident. This is not to suggest that those other stuctures are perfect–far from it–but they offer some guidance. They certainly suggest the following:

  • As academic lawyers we need to communicate more clearly what we do to relevant research users including the public.
  • Professionals who want to engage with us (practitioners, politicians, journalists, NGOs) need to understand, value and acknowledge our contribution. Academics are not unpaid service researchers and being treated as such disincentivises engagement.
  • Research and engagement must be valued and resourced at institutional and national level including in academic governance systems (promotion, hiring and, if one is introduced in Ireland, a national research assessment framework).
  • Research end users including journalists and politicians need to be willing to do a bit more work to seek out appropriate expertise, which would be aided by the provision of financial support for establishing and running expert networks.
  • Academics need to remember that being an academic is a publically funded profession in which civic engagement is appropriate, if not demanded.

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