The State of the Academy and (the price of )a Lawyer's Soul
Caroline Fennell, October 23rd 2006
Caroline Fennell responding to Q&A at the conference
There is something disturbingly utilitarian in this conference's theme: the notion of delivery. As one who holds fast to the notion of the value of uselessness I will simply remark upon that assumption of utility as a value, but gloss over it- pausing merely to make reference to what Kathleen Hall terms 'a new politics of knowledge' which is "…setting the parameters 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?"
Therefore abandoning the strictures of my brief before I start, I will in true academic fashion, focus instead on that which interests me- and which I would also suggest interests the Humanities and Social sciences- namely that which is knowledge and that which is society, though not necessarily limited by their conflation into 'the knowledge society' whatever that construct might mean.
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: (society)
"[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."
The ability of the Humanities and Social Sciences to influence public policy presupposes their health-something which is not a given in 21st century Ireland or thereafter. For the humanities and social sciences may have a long history- but perhaps a rather more uncertain future. Indeed 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."
So if the humanities is in decline-what of the state of health of the academy?
1. The State of the Academy
Sub title: The (price of a) Lawyer's soul
Societal changes over the past few decades have ensured that many public institutions have been the subjects of a changed focus in so far as their activity has moved into the private sector: think prisons/public utilities/airlines etc. Educational institutions also increasingly form a part of the private sector particularly now at third level, but the University sector itself has experienced a withdrawal of state support and an invocation to pursue funds elsewhere which has considerable potential to influence its future development. In part this is a function of greater participation as Fitzgerald has noted which could be seen as a positive thing, but if the quality of type of education that tax payers now have access to is diminished, then that is a double disservice as they will have paid twice. But why should it be worse or how can it be made better?
Pedagogy within the academy is dependent on an academy committed to certain values, standards and public service which could in the current climate seem to be under threat. This has the power to affect all disciplines, but none more so than humanities, social sciences and law where historic lack of underfunding (stark certainly in some areas like law) combined with low unit costs makes for a heady combination for university managers anxious to maximise 'efficiency' in accordance with government rubric without changing the funding mechanism which has always favoured science and technology over humanities and social sciences. Staff student ratios being adverse, student demand keeping numbers high, and the failure to renew 'plant' all combine with the demands of measurement from the centre (quality review, Research Information Systems (RIS)/teaching portfolios) to ensure that the academic feels beleaguered, yet never has it been more important to raise our heads above the parapet and maybe together combat some of the developments within the academy generally that will affect our disciplines into the future. It is only comparatively recently that law in Ireland has moved away from a vocational focus (as a sole pursuit) as now many students will not have vocational aspirations; many staff no professional qualifications opting, instead for a PhD; and for many students and staff a research agenda well removed from the 'core curriculum' forms their identifiable world.
Hence it is also comparatively recently that legal academics have become literally more central to the University and that their discipline has moved closer to the heart of that territory occupied by humanities and social science.
I could be wrong but it seems to me that humanities social science and law students have the poorest service from their Universities- and that is at least in part our fault. Certainly it is the case in relation to law students that compared to their US counterparts they have no dedicated moot rooms by & large, few dedicated buildings, even fewer dedicated staff (as in staff student ratios), poor library resources (their labs)…. [When I visited Osgoode Hall in the mid 80s as a postgraduate I was astounded at the facilities. It is a shame to me particularly that Irish law students still do not have that level of 'plant support'.]
Recent restructuring has served to compound those difficulties, adding insult to injury by the relegation of faculties to schools (UCD); attempted amalgamation of departments into schools (TCD); and loss of seats by Commerce & Law at the table where the resource cake is shared (UCC). All of this means that humanities social science has lost voice(s).
As Barrett puts it:
"The university departments which restricted student entry acquired prestige and protection under restructuring. Departments in arts and social sciences did not restrict student entry and played a strong role in Irish economic development by catering for high point students at low unit costs. These departments are targeted under restructuring."
On the plus side though, confidence has never been higher in the humanities and social sciences: specialisation is available, research active staff abound, postgraduate options are rich and varied, access to all manner of resources online renders high quality research feasible without travelling to libraries abroad. Internal competitive processes like Government of Ireland scholarships and IRCHSS demonstrate the richness of talent amongst students and staff in law, the humanities social science and business disciplines.
So what then is the worry- or if we got more cake could we just eat it?
The short answer I believe is no and there are two reasons therefore:
(a) University commercialization- threat not opportunity
- Loss of the public (interest) voice- the reason we became legal academics (in whole or in part) and not (just) lawyers
2. Commercialization
[sub title: the corporate restructuring of our profession]
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, the hallmarks of commercialisation are there:
- Proliferation of industry & university collaboration on research & the presence of industry on campus under active consideration
- Business language being the means and the measure of government support (Strategic Innovation Fund) under the guise of efficiency and accountability (measurement)
- Proliferation of administrators (management) at great cost to implement 'reform' while chalk and talk issues (state of lecture theatres; library resources) remain unaddressed (and the connectivity between those two). Barrett makes this point:
'The TCD proposals to abolish departments failed, but schools were established in any case thus introducing an extra layer of bureaucracy with departments, schools and faculties' of UCC where 'Colleges' were developed to cover faculties, but faculties still exist, as do elected Deans, so an extra (expensive) layer of administration and bureaucracy has resulted. What is consistent and certain is as Barrett notes that "[costs per student will rise, in particular managerial and administration costs." (Government take note!)
- Science paradigm & fundraising (research grants as opposed to research for promotion) risking 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). Fourth level Ireland- growth in PhDs-again follows the scientific model of the 4 year PhD-the additional year to acquire transferable skills which social scientists & lawyers already have.- Arts graduates are arguable the most transferable of all graduates- not always seen to be in their favour. Definition of terms in scientific parlance risks misunderstanding, resulting in events such as the recent PhD scheme in UCC (ironically enough the President's scholarship scheme for the Humanities, Social Sciences, Business and Law) neglecting the self directed nature of research and therefore looking for the supervisors to apply- the exact opposite of the IRCHSS model. The proliferation of the phrase 'Principal Investigator' (PI) similarly misses the point that in Humanities, Social Sciences our PIs are the students, and we do not take credit for their work despite the intellectual capital involved.
- Measurement (under the guise of accountability)
RIS 'measurement/peer review may mean research similarly (mis)constructed. Peer review- the saviour- may be meanwhile under threat in a collegiate, multi disciplinary environment with a non academic head. The latter may be more influenced by the needs of business and commerce in decision making about curricula, when faculty discussion and the disciplinary evolution should guide investment and curriculum development.
Citation indices 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 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- again a battle with the sciences) in a high teaching load environment may threaten the solitary scholarly monograph (which breaks new ground). A mention also of the 'disappearing' academic- when one looks at the staff statistics in our universities, it is striking how many are not traditional academics but research staff whose tenure may well be related to a certain grant or centre. This 'casualisation' of academic staff moves us away from academic tenure which Lieberwitz identifies succinctly 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."
The implications of all this? This leads us to the second challenge facing Humanities Social Science and Law.
3. Loss of Voice
[sub title: where's the public interest?]
Loss of voice here refers to the loss of voice of
- the academic
- the public interest: -legal or policy implications, being relegated merely to an 'add on' to science projects (funded)
- within the University a threat to interdisciplinarity through restructuring & potential funding preference for activities within colleges e.g. law & business as opposed to law & medicine/languages
- increasing bureaucratisation keeping more experienced teachers out of the lecture theatre
- a consequent danger of definition and limitation by the new contexts- in UCD & UCC Business & Law- with the '&' likely to disappear-and what that means for those of us who are not corporate lawyers.
And here I speak again as a lawyer- and suggest that that might be significant.
Legal academics don't need a client-unlike their practitioner friends. They explore similar issues but with a broader brush, a different angle, they have the freedom to dream, to explore without boundaries of litigation or client's interest, to be controversial, "to speak truth to power".
As Scattergood so eloquently puts it:
"The best academics are quiet subversives; nothing would change in their subjects if they were not." Their work is the academic mission- to think, write and speak in the public interest. That mission is of course central (or should be) to the academy.
If legal academia is struggling to find an identity now that it has outgrown its vocational role- that is a cause for celebration & not concern. For if, as Wang suggests , the old humanities was the site of free intellectual inquiry and the new institution (brought about by the corporate restructuring of our profession) one of vocational training, law is going precisely in the opposite direction- away from vocational training and closer to the heart of the humanities.
On campus social scientists amongst others now realise that law is much more central to any manner of inquiry and in fact the suitors who approach law in the run up to funding calls (such as PRTLI 4 etc.) could be quite embarrassing if not so flattering- if we were to be so naïve. What this reflects is a process whereby as Fiona Cownie has observed in her work on legal academics the legal academy is “ moving away from its exclusive concern with doctrine and in doing so…moving closer to the heart of the academy.”
The shape of the University has changed. We ourselves in our presence within it and our growth mark that development. We need to embrace that opportunity. A new base of power not built on historic privilege but on commitment to the values of academia needs to emerge. In part that must ensure the current and future quality of education- and in that we have common ground. But there is a bigger university wide dimension to what we hold dear. We need to articulate that, give it voice, a not inestimable task in the cacophony of those struggling to hold onto privilege and division, which has meant they have had it their own way for far too long.
Cownie in examining the role of legal academics points to the fact that in some respects there is still a noticeable lack of intellectual self confidence about academic lawyers. It may be a considerable surprise to many of our colleagues both professional and academic from other disciplines to hear talk of lawyers being voiceless or quiet.
After all lawyers within and outside the academy as so often characterised in like manner to Swift's description of lawyers as a '…bred up from youth in the art of proving by words multiplied for the purpose, that white is black and black is white, according as they are paid.'
We need to turn that characterisation on its head: seize the language and that skill, so often characterised against us, and rally round it. So then what do humanities social sciences and law share as a concern to be so articulated?
4. Shared project of pedagogy: Reconstituting 'public interest' at the heart of the academy
(No subtitle here. Unless-a new University in Waterford?!)
One of the interests we share in the humanities and social science and one that is critical for the future is precisely that of pedagogic research.- Education research offers an opportunity to address these questions at a critical time for university education in Ireland. In bridging the gap between research and teaching it can ensure 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 and law into physics and engineering.
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."
From my own discipline's perspective, given lawyers' skills of persuasion articulation & advocacy, it is extraordinary we have not played a more visible role within the Irish academy. Straddling the worlds of science and the humanities, with a new niche to carve for ourselves and a public interest motivation and mission, it is entirely appropriate (nay long overdue) that legal academics address some of the crises in academy in Ireland, particularly with regard to fostering and funding the non science side of the house. Now that we are not rushing back to the Four courts or hastening to a closing or negotiation, we have the time to give our rich and varied discipline the place it needs within institutions of higher learning. That which we lost through restructuring and a seat at the table (just as the cake was being carved!!) was ours on historic grounds only, and was part of a vision that is not the sum of our measure. To bring about that kind of security and authority once more however we need to build bridges with those who are our true partners in inquiry and not just those our (momentary) masters thrust upon us. We need to reach beyond and outside the academy's self imposed restraints: to those in the world of public service who share the same values and ethos as us; to those within the academy from whom we may be artificially divided but who share a common interest in our self identified areas of research, be they linguists/philosophers or engineers; to our students and graduates who vote with their feet to study our programmes and spend their lives showing us how those programmes then live; and to the public (community) who have funded universities through taxes, and who deserve the dissemination of our research and its valuing, oft forgotten in the rush to privilege 'peer review' publication over public discourse and debate.
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."
Humanities social science and legal scholars need to underscore that mission. For the latter group, Cownie feels confident of the ability of legal academics to combat the managerial and corporatist pressures within higher education. She suggests that they have " strong attachments to core parts of their academic identity which are focused on their discipline-on researching and teaching as part of an independent community of scholars." This makes it likely she suggests "that they will resist policy changes which threaten those core values."
An opportunity presents itself to re-establish academic values at the heart of the academy- a critical issue for the academy itself as well as for humanities and social sciences, and for the public interest. For my own discipline, the time has come for academic lawyers within the humanities and social science to carve out a role within the academy, which gives 'voice' to lawyerly like (but not solely lawyerly) concerns about process and values and public interest construction not often found in the commercial/business like speak of current university management. That is the challenge for Humanities and social sciences, but it is also their contribution. It is an opportunity and challenge to government to underscore the public interest mission of the Universities- for the sake of knowledge and society. This will reject managerial and corporatist tendencies at third (and fourth!) level, thereby returning the university mission to the taxpayer as citizen.
Robert F. Arnove makes this point rather well:
"International education and legal scholars have important roles to play in public consciousness-raising and social change. Far from being marginal to the (95) struggle to achieve social justice, universities…and law faculties, must play an instrumental role in preparing present and future generations of students with the knowledge, skills, values and ideals to comprehend and transform the world. Neglected in the current emphasis of policymakers' roles in educational systems, serving primarily the economic goal of national competitiveness in the global marketplace is the fundamental and historic mission of public schooling in contributing to the formation of an enlightened and participatory citizenry that would actively forge a more democratic and equitable society…In addition to critical analysis of current worldwide trends in economic and educational policies, it is necessary to stimulate the imaginations of teachers, students and policymakers, with reference to alternative and preferable futures consistent with ideals of democratic citizenship both locally and globally."
This is precisely what academics within the humanities and social sciences are good at-it is exactly what 21st century Ireland needs (whether it knows it or not (not)), and it is timely for us to remember and remind our paymasters and managers.
If that project fails, there may even be a case for a new University (of the Humanities & Social sciences)- one where the Humanities and social sciences-including law-return to the idea that knowledge is its own end, foster the academic endeavour and give tenure to that 'irritating young person down the hall'.
-And if there is, it must surely be located in Waterford?!
Hall, Kathleen D., 'Science, Globalization, and Educational Governance: The Political Rationalities of the New Managerialism' (2005) 12 Ind. J. Global Legal Stud.153 at p.180
Lynch, Kathleen 'Neo Liberalism and marketisation: the implications for higher education' (2006) Vol 5 No 1European Educational Research Journal 1at p.1
Wang, Xiaoying, 'Farewell to the Humantities' (2005) Vol 17 No 4 Rethinking Marxism 525 at p.537-8
Fitzgerald, Garret, 'Too much focus on economy-based learning' The Irish Times September 23, 2006 at p.16
Barrett, Sean D., 'The Economics of Restructuring Irish Universities' (2006) Vol. 54 No 2 Administration 43, at p. 59
Liberwitz, Risa L., 'The Marketing of Higher Education: The Price of the University's Soul' (2003-2004) 89 Cornell Law Review 763 at p.798-799
Barrett, Sean D., 'The Economics of Restructuring Irish Universities' (2006) Vol. 54 No 2 Administration 43, at p.59
Wang, Xiaoying, 'Farewell to the Humantities' (2005) Vol 17 No 4 Rethinking Marxism 525 at p.534-5
Lieberwitz, Risa L., 'The Marketing of Higher Education: The Price of the University's Soul' (2003-2004) 89 Cornell Law Review 763 at p.798
Scattergood J (2004), 'Comments on the Provost's Working Group on Structures, Management and Systems, TCD' 5 quoted by Barrett ibid at p.54
Wang, Xiaoying, 'Farewell to the Humantities' (2005) Vol 17 No 4 Rethinking Marxism 525 at p531
Fiona Cownie Legal Academics Culture and Identities Hart Oxford (2004)
Jonathan Swift Gulliver's Travels chptr. 5
Barrett, Sean D., 'The Economics of Restructuring Irish Universities' (2006) Vol. 54 No 2 Administration 43 at p.50
Lynch, Kathleen 'Neo Liberalism and marketisation: the implications for higher education' 2006 European Educational Research Journal Vol 5 No 1, 1 at p.12
Lieberwitz, Risa L., 'The Marketing of Higher Education: The Price of the University's Soul' (2003-2004) 89 Cornell Law Review 763 at p.786.
Fiona Cownie Legal Academics Culture and Identities Hart Oxford (2004), at p.205.
Arnove, Robert F., To What Ends: Educational Reform Around the World' (2005) 12 Ind J Global Legal Studies 79 at 94-5.
For as Barrett points out supra at p.61 aside from regional factors, 'the strongest case for a new university at Waterford is that it would not replicate the mistakes of restructuring seen on other Irish campuses in 2004 and 2005.'
