A Matter of Content, not the Dilemma of Form. A Response to András Jakab and Wojciech Sadurski

The recent discussion between András Jakab and Wojciech Sadurski concerns the role and the possible moral dilemmas of a constitutional scholar and teacher in ‘autocratizing regimes’. However, the unexpressed experience behind the views is the dramatic passage of Hungary and Poland from a position of liberal democratic champions to the vanguard of illiberalism in the European Union. This local context sheds light on the core of the discussion. I claim that the issue central to the moral situation and professional integrity of a constitutional scholar is not the method of an action undertaken, but his or her sensitivity to the existing social circumstances. As a consequence, this is also an issue of the boundaries of his or her scholarly focus.

I think this discussion, to a large degree, is about the potential clash within the (engaged part of) academia in the region. The clash between more traditional strategies of defence of a scholar’s integrity is on the one hand, and the strategies more directly inspired by a constitutional jurist’s function in what used to be called ‘mature liberal democracies’ is on the other hand. Before I try to indicate what appears to be lost in this discussion, I will start my argument with a concise focus on the positions of both Professors.

András Jakab suggests a path for a constitutional scholar that somewhat resembles the path of Central-European resisting intellectuals, academics and teachers under the communist regime. To recapitulate Jakab’s position, a constitutional law teacher should focus on the abstract, theoretical revival of key concepts and values of the constitutional order, suggesting their current relevance to the audience. This strategy echoes, mutatis mutandis, the resistance strategies of teaching and intellectual work during communism and even during the Nazi occupation. The strategy could be characterized as: the return ad fontes in the teaching material (explanation of the basic concepts), references to the universal principles (e.g. international law), the turn to the historical parallels, transmission of information ‘between the lines’.

In response to Jakab, Wojciech Sadurski invokes Ronald Dworkin, a leading post-war legal scholar living on the other side of the Iron Curtain. Taking Dworkin, Sadurski argues that it is not per se harmful for a constitutional scholar’s integrity to belong to a political party or not to try to hide one’s political beliefs. While repudiating the ‘radically “positivistic”’ approach of constitutional scholars (being blind to the ongoing problems of constitutional democracy for the sake of the alleged neutrality), Sadurski’s position also resembles a largely ‘positivistic’ understanding of legal academic practice. He advocates for a constitutional scholar being ‘objective (whatever it means)’. He compares the role of a constitutional academic in a time of democratic breakdown to a role of an epidemiologist in time of a pandemic. Both can and should use their ‘scientific knowledge’ in public for the good of the society. This resembles some kind of a ‘positivistic’ view, according to which ‘the law’, but also its abstract and general principles, are something ‘out there’ to be described and properly named so as to become self-evident for the public.

I think the discussion does not give due regard to one fact: a lot has happened and changed in Central European societies between 1989 and the rise of the current autocratizing trends. A constitutional scholar cannot but take this into account.

I have troubles with unreservedly subscribing to Jakab’s opinion that ‘[o]ne of the key functions of constitutional law is the softening of political conflicts (i.e., integration, peaceful conflict resolution etc.).’ I however agree with him that ‘constitutional lawyers (constitutional scholars) should behave in a manner that is compatible with being (and looking like being) above everyday party political conflicts.’. How would this look? In my opinion the key ‘function’ of constitutional scholars would perhaps be an attempt to reformulate existing conflicts, or to unearth their deep layers – of course, in accordance to the rules of academic integrity and boundaries of the field of expertise.

Let us take the example given by Jakab and referred to by Sadurski: a constitutional scholar ‘joining a pro-rule-of-law political party’. I think the formulation of the dilemma as ‘whether or not do it’ is highly reductive. What is crucial instead is a scholar’s attitude (manifested in his or her actions) to the practice of partisan political movements. A constitutional scholar should be aware that, for any political party, being ‘pro-rule-of-law’ is highly contingent and fragile. To a large degree the party’s stance depends on the changeable political reality and calculations of political interest. The story of Fidesz is informative. Hence constitutional lawyers certainly cannot contribute to seeing ‘the problem of the rule of law’ in Central Europe as the fight between eternally good and evil forces. They can, and perhaps should, speak aloud in the ‘pro-rule-of-law’ demonstrations. But it must never even be suggested that they belong to an imagined, bi-polar, ‘Star-Wars-like’ public life concentrated on the struggle between strikers and defenders. It is not only a matter of academic integrity. Rather, it is most of all a matter of public reliability and the social role of scholars, who otherwise are easily cast as member of the elite on the side of one of the warring political forces.

But what should a constitutional scholar speak about? Both teaching about the abstract concepts in the lecture room and defending the rule of law in demonstrations risk the radical limitation of the constitutional law’s focus. As mentioned above, the Central European experience from the period of between the communist regime and the illiberal rule cannot be omitted. For a constitutional academic it means that teaching and defending the abstract rudiments of liberal constitutionalism is not enough. The odyssey from 1989 to 2010 and 2015 must be taken into account. Constitutional scholars cannot ignore the process of democratic decay, degradation and corruption of the political class that preceded the rise of autocratic tendencies. While securing the hinges of liberal democracy, lawyers and scholars must give regard to the fuel for illiberal resentments that emerges from economic inequalities or effects of economic transformation. In order to explain and protect the value of judicial independence or the apolitical appointment of judges, constitutional scholars need to be sensitive to the immense Central Europeans’ disappointment with the functioning of their courts after 1989. Before speaking in demonstrations, a constitutional jurist should take into account the post-1989 social demobilization and decomposition of civil involvement. It is only such an integral and non-positivistic attitude that can save both integrity and credibility of constitutional scholars in the autocratizing states. Many of the methods suggested by Jakab and many of the activities defended by Sadurski, are potentially suitable as a form for manifestation of such an attitude.