The Academy and the Rule of Law by Tamar de Waal

The Academy and the Rule of Law: Reflection to the Opening of the Academic Year, Netherlands Institute for Advanced Study, Amsterdam, September 4, 2024

(The contributions by Michael Ignatieff, Tamar de Waal and Jan Willem Duyvendak are also avaliable in Dutch, in the Dutch Review of Books’ special issue on academia and academic freedom: Academia Quo Vadis?)

I was invited to reflect on what academia can contribute as a partner in a broader alliance to safeguard the democratic rule of law. This is in response to Michael Ignatieff’s assertion that universities cannot protect their academic freedom and independence against attacks of authoritarian regimes without such an alliance. This, to me, seems like an undeniable truth. However, it is also an assertion that raises many questions, including how such an alliance can be reciprocal: what can academia do to protect other powers and institutions that uphold the democratic rule of law?

The role of academia often remains unacknowledged

This is far from straightforward, for instance when we look at definitions or conceptualizations of the democratic rule of law in legal scholarship, where the role of academia is often overlooked. Legal scholarship typically states that the rule of law functions through three co-equal branches of government – the legislative, the judicial, and the executive – with checks and balances among them. Occasionally, journalism is mentioned as a fourth pillar, primarily responsible for uncovering the truth and informing the public. But even in these more constructive definitions, the role of academia often remains unacknowledged.

However, recent academic scholarship on the erosion of the rule of law and democratic backsliding does frequently highlight the restriction of academic freedoms. This, in my opinion, supports the conclusion that it is an odd omission to leave academia out of more constructive definitions of the democratic rule of law – and  I believe that we see daily evidence of the significance of this omission in the Netherlands.

Something of a different magnitude

As you are likely aware, in the Netherlands a government was recently formed with Geert Wilders’ radical right-wing, anti-rule-of-law PVV as the largest coalition party – a first since the establishment of our post-war democratic rule of law. We’re already seeing that facts seem to matter less and less, especially on topics like diversity and refugees. Examples abound, but for instance take recent official claims that Syria is safe again. While it could be argued that all politicians distort facts and academics understand that there is no such thing as an absolute ‘fact,’ there is something more significant at play here, something of a different magnitude. Another example is the government’s declaring an ‘asylum crisis.’ The goal, there, is to suspend the Aliens Act of 2000 and introduce a temporary Asylum Crisis Law for two years, halting all individual asylum procedures. The coalition agreement referred to this as an ‘asylum decision stop.’

EU law does allow for declaring an asylum crisis under specific conditions. However, after the proposal to declare an asylum crisis in the Netherlands, a broad consensus among academic and legal experts surfaced that the current situation in the Netherlands does not meet the legal criteria. The numbers are too low, and the so-called ‘crisis’ is largely the result of deliberate mismanagement and political unwillingness – such as the refusal to distribute asylum seekers evenly across the country. In short, it seems that judges will soon be forced to reject one of the new cabinet’s key initiatives because it is factually and legally indefensible.

A sought-after legal intervention

The cynical aspect is that all parties in the coalition seem to believe they will benefit from such a judicial intervention. The center-right parties in the coalition with Wilders think that the main points Wilders secured during the negotiations are legally impossible, while they are meanwhile achieving their own plans. Wilders, on the other hand, may welcome the judges’ likely intervention as an opportunity to blame ‘fake judges’ or the EU for his failure, thereby furthering his populist agenda. I think, therefore, that his coalition partners are mistaken if they believe they have outsmarted Wilders – Wilders will likely be the one to gain most electorally from this notion of an asylum crisis.

If we take a step back, this example shows us that fact-free politics and political opportunism – especially when intentional and cynical – puts the democratic rule of law under severe strain, in part because it leads to the legislative and judicial branches being pitted against each other. While I have just used asylum as an example, this dynamic equally applies to issues like healthcare, education and culture. As a result, when anti-rule-of-law parties are politically successful, the judiciary tends to come under political attack. This creates a tough situation for the judiciary, as it cannot easily defend itself. Courts may try to elucidate their rulings as best they can, perhaps hold a press conference, but beyond that there is not much they can do.

Academics can explain the democratic rule of law 

Here, academia could play a crucial role, as part of a broader alliance to protect the democratic rule of law. Academics, particularly those in legal scholarship, can help explain how the democratic rule of law functions, emphasizing that it only works if all branches of government are committed to it and when there is broader respect for truth, with the legislative branch playing a leading role. Academia can also clarify when measures clearly violate the law, EU regulations, or treaties; or present facts about migration and asylum; or explain how the reception crisis in the Netherlands developed.

But how is academia to go about this?

First and foremost, academia must uphold high standards. This includes guarding against superficial interpretations of ‘viewpoint diversity’ or ‘political correctness’, and clearly distinguishing between freedom of expression and academic freedom. Academic freedom is more specific and grounded in academic standards, rigor, ethical norms, and professional practices – whereas freedom of expression covers a broader range of speech.

Troubling assertions

It is precisely for this reason that I found some of Ignatieff’s remarks in the Dutch press about ‘political correctness’ in academia troubling. While we should indeed discuss how to ensure academic pluralism within our community, suggesting that researching certain topics or reaching specific conclusions – for example, that there is no legal basis to declare an asylum crisis in the Netherlands – could rightly be criticized as ‘politically correct’ (whatever that term may actually mean) and that this should affect one’s chances of tenure or promotion, as Ignatieff has suggested in De Volkskrant, is, quite simply, an attack on academic freedom. Moreover, in the current Dutch context and the power dynamics now prevalent within our rule of law, such remarks run the clear danger of providing ammunition to the very movements that defenders of the rule of law and academic freedom should squarely contradict.

Independence and impartiality

Above all, academic freedom should be based on independence and impartiality – qualities that other branches of government and institutions must also work to guarantee. And while effective academic freedom, independence and impartiality do of course not automatically mean that academia will always align with the judiciary or oppose the legislature, blatant lies or misuse of the law for political purposes should not be allowed to go unchallenged.

Second, it’s important that academics speak out and, if necessary, receive the resources, time, and protection from universities and colleagues to do so. Not every academic has to do this ­– choosing not to is also part of academic freedom ­– but the democratic rule of law needs universities and academics who are willing to inform and stimulate public debates.

Of course, presenting facts and analyses that support judicial rulings might lead anti-rule-of-law parties to target academia as well, portraying it as part of a corrupt elite opposed to ‘the people’, as the populist narrative goes. There is no simple solution to counter this dynamic. But it is crucial that no branch of power in a democratic rule of law stands entirely alone whilst carrying out its duties with integrity.

Thoroughness as a target

In this sense, I believe that academia and the judiciary share a special methodological connection: both are predicated on taking time to examine issues and weighing arguments before reaching conclusions. As a result, what might seem like a complex or ambiguous issue in public debate or politics might turn out to be quite straightforward in the courtroom or academic research. It is a thoroughness that makes both academia and the judiciary frequent targets for anti-rule-of-law politicians.

To conclude, I believe it is justifiable to consider academia as the fifth branch within the democratic rule of law, and that the rule of law can only function if most (if not all) pillars work to uphold the others. As such, it is incumbent upon academia to come to the support of other pillars – as much as it is for the legislative, the judicial, and the press to come to that of academia.

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Read the versions translated and edited into Dutch of the contributions by Michael Ignatieff, Tamar de Waal and Jan Willem Duyvendak at the NIAS Opening Academic Year 2024-2025 this week in de Nederlandse Boekengids.