Jakab, András

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Moral Dilemmas of TeachingConstitutional Law in an AutocratizingCountryAndrás Jakab 2020-07-15T14:30:32We often (here and here) talk about the methodological challenges that autocratizingregimes pose to constitutional scholars. However, so far we have not given enoughattention to the moral dilemmas that constitutional law scholars face on a dailybasis when teaching at universities that are geographically located in autocratizingcountries. Constitutional law professors in such regimes are today facing moraldilemmas that they definitely did not sign up for when they originally chose their jobs.Traditionally, in continental legal cultures, university education focuses on doctrinal-conceptual legal thinking (Rechtsdogmatik) which systematizes elements of positivelaw (legal provisions, judicial decisions) along key concepts, with the help of doctrinalacademic writings. All this presupposes a minimum level of the rule of law, andexactly this is fading away in autocratizing countries.Constitutional law professors have to hold lectures, for example about the separationof powers (which can even be explicitly laid down in the Constitution of their country),even when they know in fact that there are party soldiers of the government sittingin the so called independent institutions who are blatantly making decisions alongparty lines (sometimes even in clear breach of the legal provisions). Moreover, theirstudents are also aware of this fact. Several strategies exist in practice for dealingwith this situation.1. Ignore the problemsYou can just be cynical and continue teaching as usual. You can try to ignoreconstitutional reality and the blatantly biased decisions of the constitutional court ofyour country. You might disagree with such decisions but you continue to receiveyour monthly salary, and you separate your internal choices from what you haveto teach. This is a relatively comfortable option, requiring little consideration andresulting in minimal internal conflict. Thinking too much makes life difficult anyway!2. Cherish the brave new worldIf you identify with the autocratizing regime and internalize their main slogans, thenyour internal conflicts can entirely disappear. You do not have to ignore the gapbetween constitutional reality and constitutional law; you should defend and cherishit! You just absurdly redefine legal concepts and reinterpret legal provisions (ifnecessary, then several times) in order to fit the new legal reality and the presumedneeds of the regime. Moreover, if you voice your unconditional support for the new- 1 -regime during your lectures (also in writings and even possibly in the propagandamedia), then you might even be rewarded with a well-payed position at the supremecourt, at the constitutional court or at another captured institution. You pay theprice in moral integrity for your psychological and financial well-being. You shouldespecially consider this option if you are not particularly talented and/or industrious,but you are very-very ambitious and morally flexible. This is your once-in-a-lifetimeopportunity!If you have always disliked the principles of constitutional democracy anyway (in thiscase constitutional law was probably never for you…) and you are able to ignoremany (I mean: many!) elements of constitutional reality, then you might even depictyourself as a national hero that is fighting against the international conspiracy ofhuman rights lawyers. If you stay long enough in your bubble with like-minded pro-autocracy colleagues and benefit from mutual daily re-confirmations (don’t forgetthat they need your psychological support just as much as you need theirs!), thenyou might even begin to believe (at least a little bit) what you are saying. You should,however, be aware that if the regime ends one day and your bubble bursts, that youmight find yourself in a very awkward situation.3. Stand up and fight openlyA similarly political stance, but in the very opposite direction is this one. You decideto openly and unequivocally criticize the new constitutional reality, even during yourlectures and in the media (if there is any independent or non-governmental medialeft where you can do so). You might even join a pro-rule-of-law political party orhold speeches in pro-rule-of-law demonstrations. By doing so, however, you areleaving the role of a constitutional scholar. One of the key functions of constitutionallaw is the softening of political conflicts (i.e., integration, peaceful conflict resolutionetc.). In order to fulfil this function, constitutional lawyers (constitutional scholars)should behave in a manner that is compatible with being (and looking like being)above everyday party political conflicts. A constitutional law scholar who openly actslike a party politician (either on the side of the government, or on the side of theopposition) is a self-contradiction. It is, of course, possible to change careers, butyou cannot exercise these two roles at the same time. No matter how much you lovefootball, you cannot be the referee and the striker at the same time. The traditionalrole division, however, fits the normal operation of a constitutional democracy, and itis exactly this that is being unmounted in front of your eyes. The precondition of your traditional role as a constitutional law professor, namelythe teaching of conceptual-doctrinal legal analysis, is fading away (see above inSection 1). However, if you try to protect it like a political warrior, you are actuallycontradicting the conventional unwritten rules of your profession. No matterhow morally appealing it may be, this intrinsic contradiction will not go away.Moreover, specifically in an autocratizing country, you can also expect criticism frompropaganda media and sooner or later you might lose your university job (or miss outon promotion), or your university (academic research institute) might be stigmatizedand punished.- 2 -4. Protect with dignity what you canYou can partially redefine the situation by reshaping the teaching material. Youwant to teach something meaningful, but you are ashamed to teach the positivelaw because you would sound hypocritical and/or simply blind (remember: therift between constitutional law and constitutional reality is growing every day).Therefore you begin to concentrate on theoretical questions, i.e. you talk more about“the rule of law in general” as a theoretical abstract concept, and you can explainwhat the telos (abstract purpose) of a key concept is in the sense of a teleological(purposive) interpretation (e.g., in the case of the rule of law: limitation of or fightagainst the arbitrary use of government power). You can also only include cursoryremarks (among them also a few critical ones in an emotionless lawyerly style) aboutthe positive law of your country, but that should not be your main focus—you shouldrather concentrate on the fundamentals and the ideas behind them.Besides constitutional theory, you also have escape routes to constitutionalhistory, comparative constitutional law, international constitutional law (ECHR) or acombination of these. You can also write new textbooks in this spirit in order to showthe students what the abstract standard is on which your own constitutional regimecan and should be measured. This would be a legitimate option in legal educationeven under normal circumstances; consequently, it would be difficult to accuse youof engaging in political activity if you were to adopt this approach. Intellectually, thisis probably the most challenging, but also the most rewarding option. It is also subtle,self-reflective, and strategic in the interest of constitutional values. If you have anyhope that the night will end and the sun will once again shine over your country, thenyou should choose this option. This might not sound very heroic, but actually it is:you are preserving constitutional culture in the minds of your students and, when thetime is ripe, they will be able to bring it to life. As a teacher, this is the best you canhope for.5. Try to work somewhere elseYou can try to escape the daily moral dilemmas either by changing the universitysubject that you teach (perhaps to administrative law, international law or EU law),or by taking up an academic position in another country (unfortunately, as legalacademic work is traditionally bound to positive law and national language, this is notan easy option). Or you can just leave legal academia entirely.- 3 -

Moral Dilemmas of Teaching Constitutional Law in an Autocratizing Country

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Moral Dilemmas of Teaching Constitutional Law in an Autocratizing Country

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