John Finnis and the Law Society

Would the Law Society of Ontario punish a scholar for failing to promote equality, diversity, and inclusion? What about those who defended such a scholar’s academic freedom?

One of the less appreciated issues with the Law Society of Ontario’s demand that its members produce “statements of principles” acknowledging a purported “obligation to promote equality, diversity and inclusion generally, and in [one’s] behaviour towards colleagues, employees, clients and the public” is that it is inimical to academic freedom and the freedom of expression of scholars. This problem is neatly illustrated, however, by the story of the latest attack on an academic who happens to dissent from politically correct views.

The academic in question is John Finnis, “a giant of jurisprudence” in the words of Jeremy Waldron, another such giant himself. Robert George has posted a fairly detailed review of Finnis’s oeuvre (drawn from published work) over at Mirror of Justice (detailed, but still incomplete ― there is, understandably, no mention there of the not insignificant role Professor Finnis played in the patriation of the Canadian constitution; fortunately, he has told the story himself). But the most important point for the present purposes is elided in Professor George’s description: as Brian Leiter put it on his blog, Professor Finnis “has written foolish and sometimes quite ugly things about gay people for years”. And so, as the Guardian reports, “[m]ore than 400 people have signed a petition calling for [Professor] Finnis to be removed from teaching”. Now, there is no allegation that Professor Finnis has actually discriminated against a specific student. The complaint is based entirely on his scholarship which, however distasteful one might find it, is widely regarded as formidable and important ― if also, in many people’s view, profoundly misguided.

Being a generally acknowledged giant and not just an unknown graduate student who can be bullied into submission or chased out of the academy without anyone paying attention, Professor Finnis has been defended by other prominent scholars. Les Green, writing at his blog Semper Viridis, points out that “[t]o fire someone from an academic post solely on the basis that he defends false or repugnant views is a clear violation of academic freedom”. Professor Leiter use stronger language, writing that the students demanding to be got rid of Professor Finnis “disgrace themselves and their university”. Professor Waldron put it best:

The campaign to have John Finnis removed is preposterous. His views on many things-torture, assisted suicide, sexuality-are uncongenial to some of us … . But defending & elaborating those views doesn’t amount to discrimination[.]

I agree with all this (and, just for the record, I also find Professor Finnis’s views on many things uncongenial, to put it mildly). And so, to come back to the reason for this post, I have a couple of questions for the Law Society of Ontario.

First, if Professor Finnis were a member, would you disbar him? Now, I suspect that he would not in fact conform to the Statement of Principles requirement, much like I and many others, and you’d go after him for that. But suppose he’d ticked the box through oversight. I think it’s fair to say that, whatever their scholarly qualities and interest as an intellectual foil, Professor Finnis’s writings don’t do much for equality, diversity, and inclusion. Would you sanction him for failing to promote these values? Do you think this is compatible with his academic freedom?

And second, what would you make of people like Professors Leiter, Waldron, and Green, assuming that they had not objected to the Statement of Principles requirement? Would you deem speaking out in defence of the academic freedom of a scholar whose work opposes (certain kinds of) equality, diversity, and inclusion a violation of one’s Statement of Principles commitments? After all, if one understands equality, diversity, and inclusion along demographic rather than intellectual lines, as you pretty obviously do, it is at least arguable that defending a scholar with Professor Finnis’s views opposes rather than promotes them. Would you sanction scholars who undertake such a defence because they conclude that, in this instance, academic freedom is a more pressing concern than equality, diversity, and inclusion, on the basis that they fail to “promote” them “generally”? Do you think that would be compatible with academic freedom?

The law society might, I suppose, point to its now-mostly anodyne explanation of what the Statement of Principles requirement is supposedly about, which is largely about complying with anti-discrimination legislation and of no real relevance to academics. Yet the explanation is not the requirement. It has replaced a previous version that spoke of “demonstrat[ing] personal valuing of equality, diversity and inclusion”… and might again be replaced by something that would actually make sense of the never-retracted demand that lawyers ― including lawyers who are academics rather than practitioners ― “promote equality, diversity and inclusion generally”, and not only within their professional relationships with clients, employees, and the like.

In New Zealand, universities are required ― by statute ― to “to develop intellectual independence” in their students, and to “accept a role as critic and conscience of society”. A different provision “declare[s] to be the intention of Parliament … that academic freedom … be preserved and enhanced”, which includes “the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”. I’m not sure if there is an equivalent legislative framework in Ontario, but at any rate these seem to me to be sound moral guidelines ― principles to abide by, if you like ― for any free society that values learning and scholarship. I’d say that, for an institution that is statutorily required “to protect the public interest”, the Law Society of Ontario shows very little respect indeed for the fact that the public interest requires the existence of people and institutions capable of independent thought, however far astray they may sometimes go in the process of exercising this faculty.

The Idea of the Marketplace

Apologies for the lack of blogging for the past week. We had this minor disturbance of a hurricane, and then I went to a conference in Chicago to present my paper on federalism and judicial review.

My topic today is the highlight of that conference, a keynote address by Robert Post, Dean of the Yale Law School. Dean Post spoke about academic freedom, and how (American) courts struggle to understand it and integrate in the the First Amendment jurisprudence. Dean Post as expressed much the same ideas in a brief essay, “Discipline and Freedom in the Academy”, (2012) 65 Ark. L. Rev. 203 (which will, presumably, be available on the Review’s website in some not too distant future), and in a book he published this year (which I haven’t yet looked at). There is a lot of food for thought there, but I would like to focus on one specific claim.

One source of difficulty that courts have with figuring out the true meaning of academic freedom, says Dean Post, comes from the interference of the notion of the “marketplace of ideas.” It is a staple of the American free speech jurisprudence; and of course it sounds intuitively relevant to a discussion of universities, since they are in the ideas business. Unfortunately, this intuition is misguided, according to Dean Post. In the “Discipline and Freedom” paper, he writes that “[t]he marketplace of ideas is designed … to eliminate content discrimination. It is supposed to enshrine an equality in the field of ideas.” But there is, and can be, no such equality in academia, or in any setting that is devoted to the pursuit of knowledge, especially of expertise, the institutionalized sort of knowledge universities are charged with producing. Academic disciplines recognize claims as true or false; arguments as valid or not. A university (as well as, say, a scientific journal) must be able to say that some ideas are brilliant and others rotten, and it does so all the time―when hiring a would-be professor, when granting him or her tenure, etc. Importing the notion of the marketplace of ideas into the academic setting contributes to the belief that academics are free to say whatever they please, but that’s nonsense. Once we understand that the purpose of universities is not to foster an equality of ideas but to generate expertise, we also understand, concludes Dean Post, that academic freedom is really the freedom of the academic profession to judge its members and their output by the standards of truth and validity it sets itself.

This is just a bare-bones sketch of one of the lines in Dean Post’s rich argument. I hope it is fair to him, even if it surely does not do it justice. Dean Post’s idea that universities, and the production of knowledge more generally, require discipline and judgment about what is true and valid, and what is not, seems obviously right to me. And I think Dean Post is right too that there is a danger in relying on the metaphor of the marketplace of ideas to develop a jurisprudence of academic freedom. But the danger is not exactly the one he sees. It is not that the marketplace of ideas is an inapt metaphor for describing the production of knowledge, but that it is a complex one, and easily misunderstood. Dean Post, I am afraid, it guilty of misunderstanding it in two ways.

First, a marketplace isn’t a place of equality. If the market is free, then everyone is equal in the sense of being legally able (which is of course not to say capable, or inclined) to enter it as a buyer or a seller. But not every seller will be successful, because every seller competes against other sellers of the same or similar products. Some products fare well; others do not. If the market is free, it is the preferences of the buyers, rather than the decisions of the government, that determine who succeeds and who fails. The marketplace of ideas is no different. It is not a place of equality. Some ideas are accepted, others rejected. When we rely on the metaphor of the marketplace of ideas in discussing freedom of speech, we imply that this particular marketplace must remain a free one, in the sense that the preferences of the “buyers”―the readers, the listeners, etc.―determine which “products”―ideas―succeed, and which fail. The government cannot pick winners here, or erect barriers to entry, or even engage in much of the regulation that we consider acceptable in other markets.

Second, the market doesn’t consist just of individual sellers and buyers. In most markets, (most) sellers (and often buyers, but the demand side is less important here) are firms. And firms, as Ronald Coase pointed out in his brilliant paper on “The Nature of the Firm“, do not function internally according to the market principles of free competition at all. They are like islands of central planning, little command economies, even as their relationships with each other are structured according to market principles. The reason for this, Coase explains, is that on (relatively) small scales, command economies are actually more efficient than markets, because they avoid transaction costs. What about the marketplace of ideas then? Does it too have its “firms”―organizations which, internally, are not structured on free market principles? Arguably, Dean Post’s insight about universities not obeying marketplace of ideas principles is the equivalent of Coase’s insight about firms―universities are (one sort of) firms in the marketplace of ideas. (Others probably include the institutional press, and perhaps other producers of ideas). Internally, as Dean Post points out, universities or scientific journals are not marketplaces of ideas. But externally, they are producers on the great marketplace of ideas of our society. When, for example, I submit a paper to an academic journal, the journal evaluates it according non-marketplace criteria of truth and validity. But once it decides to publish it, it arrives on a market place of ideas, where it might have to compete against other papers in the same area, which have also passed the tests of truth and validity, and where its success or failure will be measured not by any institutional assessment, but by the interest of the readers and their willingness or not to accept my claims.

Now I’m not yet sure what, if anything, the takeaway from this is. I think that Dean Post’s key insight about the importance of institutional practices of assessment of truth and validity of scientific claims and arguments holds true whether we describe this assessment as taking place outside the marketplace of ideas altogether or within special structures, not organized on marketplace of ideas principles, which are nonetheless themselves part of the marketplace of ideas. My thinking here is still a prototype―I want to show it off, but am not yet ready to put it on the market.