To Question Law, Without Condition

Following campaigns against pro-democracy and Occupy Central sympathisers at the University of Hong Kong, we must ask the old question: what are legal academics for?

Occupy Central Protestor 2014

Occupy Central protestor 2014.

Take your time but be quick about it, because you do not know what awaits you (Jacques Derrida).1

The heady days of Occupy Central have passed. The 79 day occupation of the centre of Hong Kong — alongside other sites in Mong Kok and Causeway Bay — dominated life and work for many in the city and became a focus of attention for international media. The movement is now in a period of reflection and consolidation, searching both for new strategies of engagement and, perhaps even, a sense of its soul or animating force. These are more quotidian times, far removed from those exceptional days in August last year. The future of Hong Kong, its path to democracy, its relationship with China, its legal and political institutions, all remain, for now, open questions. But for how long? And who will determine the moment when such questions are closed? Where and to whom might one address such questions? Who will answer?

It is, as such questions circulate, that the question of the university itself is being asked. The university — an institution undoubtedly of and for the question — has become the site of political intrigue in recent weeks. Two Beijing-friendly newspapers in Hong Kong, Ta Kung Pao and Wen Wei Po, have recently published highly critical articles regarding Professor Johannes Chan Man-mum, the University of Hong Kong (HKU) Law Faculty’s former Dean. Professor Chan, a vocal pro-democrat, is supposedly tipped to take on a high-level managerial job within the University. Wen Wei Po used recently published research assessment results that ranked HKU Law Faculty below that of the Chinese University of Hong Kong as a means to attack Chan’s record. Such slips in performance, so the argument went, was a direct result of Chan’s over-involvement in Hong Kong politics. These scurrilous accusations — revealing both an utter ignorance of the research assessment exercise and a gross overestimation of a Dean’s power to control colleagues’ output — are unveiled attempts to influence Chan’s nomination to managerial office. These clumsy efforts in propaganda seek to compound an existing campaign directed against fellow HKU lecturer, Benny Tai, a key figure in the Occupy Central movement. This all follows comments made by Hong Kong Chief Executive, C Y Leung, that criticised a recent student newspaper for publishing an article that discussed Hong Kong independence. These are unambiguous attempts to encroach on the institutional affairs of the university. We wait to see their long-term effects; given their heavy-handedness and general stupidity, these might well be nil. Nonetheless, these events prompt old questions that require renewed thought. In the current predicament it is legal academics, in particular, that must repose these questions. What — we must ask — are legal academics for?

In the common law tradition, legal study has a particularly vexed relationship with the academy. In England, the traditional home of legal training was the hallowed Inns of Court. Coke, Plowden and Hale, the early-modern champions of the common law’s unique form of reasoning and judgment, were deeply suspicious of “university men” who came to the law with a range of dangerous European influences: Aristotelian logic, rhetoric, dialectics and Roman law. Seeking to preserve the purity of English law, with a heritage that supposedly stretched to antiquity, legal education and training in the common law world has always been anxious of the university, unsure of its own position in relation to scholarship. Anyone working in a university law school will be familiar with the ubiquitous question, asked when one’s profession is revealed, of “why didn’t you go into practice?” The very idea of legal scholarship itself remains somewhat puzzling for many. Are legal academics servants of the law or servants of knowledge? Do they answer to the profession or the university?

The legal academy has been left as something of a chimera, enmeshed in practice at the same time seeking credibility as a scholarly pursuit. In the end, however, we can only sensibly pose law’s position, bridging the academy and the profession, as a question itself, a question open to debate and contestation. And these questions are precisely the questions asked within the university. These are questions, in fact, that cannot be answered without the university, without an unconditional freedom to pose and repose such questions, to seek out the truth to such questions, to hold open, even, the very sense of the question itself, to ask of the limits of critique and the very meaning of “truth.” None of this can happen without the university, a university without condition.

This simple but profoundly important claim is the subject of a lecture by Jacques Derrida: “The Future of the Profession; or The University Without Condition.”2 As Derrida puts it, ‘the university should thus be the place in which nothing is beyond question… [it should have] the principal right to say everything… the right to say it publicly [and] to publish it’.3 As is clear — to anyone with an even passing acquaintance with the academy — such a university does not exist and never has. Its necessary tie to the public sphere means that the university will always have to answer to a multiplicity of interests and forces: economic, technical, political and so on. The university without condition is impossible. As an aspiration, it claims too much and in so doing it reveals its very weakness; as Derrida suggests, ‘the university is… an exposed citadel, to be taken, often destined to capitulate without condition, to surrender unconditionally’.4 The university is, then, internally threatened, by its very own condition of possibility. That which allows for unconditionally free expression and thought sunders the institution from within. To be open to everything and be, in principle, able to say everything, the university must be open to its own destruction.

It is this impossibility of the university, the fact that it is a site of radical questioning and doubt that makes it so precious. But this preciousness is not without precariousness. What I want to suggest here is that recent events in Hong Kong make it clear that such a site, a site of impossible freedom, must be maintained and nurtured through institutions that resist forces which aim to close this free play of thought that animates the university. It is this defence of the institutional, to which legal academics must answer: how can we maintain the (im)possibility of an unconditionally free university? For Derrida the fate of the university lies in the hands of the humanities, for it is within these disciplines that questions of truth, critique, the nature of the public sphere, the question of the human, humanism and humanity, as well as the question of the university itself, are all put in question. It is the humanities that have the intellectual resources to maintain the university to come. But what of law and the law school?

As is well known, the relationship between law and the humanities is a contested issue. Not only straddling practice and scholarship, law within the university finds itself pulled in at least three directions: toward the social sciences with a desire to gather and analyse data; towards doctrine and the black letter of law; and, finally, towards the humanities, to studies not in but about law, a study of law that seeks, in the longue durée, to understand how law shapes and reflects the human experience. It would be foolish, and self-contradictory, to use this space to champion one of these approaches over another. To question law, without condition, is to necessitate a plurality of approaches to the subject.

Nonetheless, it is worth remembering the relatively recent shift in legal studies away from its humanistic roots towards professional training. The first European university in Bologna was established as a law school devoted to classical humanistic learning, nurtured by theological and philosophical traditions. Students, trained in grammar, dialects and rhetoric, viewed law as instrumental in effecting and reproducing the social bond and, through the law, sought to connect the secular with the holy, philosophy with matters of governance. Often pitched as an emergent discipline, “law and the humanities” has a long and noble heritage.

However, it is not the rich history of the humanistic study of law that gives the legal academy such potency today, but its heterogeneity. Octopus-like in reach, contemporary law schools are qualified to intervene in all aspects of political, ethical, social and intellectual life. This plurality, however, should not mask one centrally important role that lawyers and legal academics can play in maintaining the vitality of the university, to sustain a space that aspires to be without condition. The legal training is a training — hopefully a critical training — in the nature of institutions and the regulatory force they play in reproducing social relations. Lawyers, it seems to me, are uniquely placed to be guardians of the university without condition. When it comes to understanding the nature of limits, regulation and order, lawyers come into their own. As legal academics, then, echoing the ancient connection that law has with the university itself, we must commit ourselves to the on-going institutional crafting of the university’s form and scope. Without such institutional know-how, the university without condition — a vain hope for absolute freedom of thought, whispered as pledge of faith to the idea of the university itself — will be naught.

Today Hong Kong finds itself at a critical juncture. The system of “one country, two systems” that maintains autonomy for this region of China has come under unprecedented strain in recent months. Difficult questions lie ahead, for all parties, pro-democrat or otherwise. At this moment, the university — as an institution committed to asking difficult questions — is more important than ever. We must maintain the university as a space preserved for free thinking and open exchange. The institutional and regulatory expertise of legal academics finds its force at the borders of the university, within its negotiations with the public sphere with which it must always be in dialogue. Singularly positioned both within and without the university, the law school is capable of rising to the task that Derrida sets for the university to come by, ‘allying itself with extra-academic forces, in order to organise an inventive resistance, through its oeuvres, its works, to all attempts at re-appropriation (political, juridical, economic, and so forth), to all the other figures of sovereignty’.5

This sets the bar for the legal academic high indeed. It calls for renewed reflection on the nature of the offices of lawyer, professor and jurisprudent. It calls for us to ask questions of the law, without condition and to commit ourselves to maintaining a space where the hope of free thought remains alive.

Daniel Matthews is Assistant Professor of Law at the University of Hong Kong where he teaches and researches in law and literature and jurisprudence.

Show 5 footnotes

  1. Jacques Derrida, Without Alibi (Stanford: Stanford University Press, 2002), 237.
  2. Derrida, Without Alibi, 202-237.
  3. Ibid., 205.
  4. Ibid., 206.
  5. Ibid., 236.
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  1 comment for “To Question Law, Without Condition

  1. Robert Herian
    13 February 2015 at 12:05 pm

    Dan. Interesting piece that closely echoes a seminar I presented this week to colleagues at the OU. What are the chances..?!

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