McGill’s Annual Graduate Conference in Law
29 – 30 May 2014
Emerging Scholars, Emerging Scholarship
The hidden richness of imagination:
The role of the legal scholar as public intellectual in Canada
Jeffrey Smith
“A vigorous culture capable of making corrective, stabilizing changes depends heavily on its
educated people, and especially on their critical capacities and depth of understanding.” **
Abstract: Legal scholarship – the research of the law, its epistemological development and the discourse
among its practitioners – is done at some remove from civil society. Paradoxically, law scholars are
accorded space and resources by the society on whose law they labour when thinking about compelling
practical problems and developmental trends. Law as the public would use it is increasingly the province of
the legal scholar, given the complexities of the modern era, the growing understanding of law by citizens,
and the competing interests which engage multiple subject areas of the law and their relationship with other
disciplines.
This paper addresses the place of the legal scholar as commentator about the law in civil society: the role of
the scholar as public intellectual. The landscape for public intellectuals is considered. The challenges
and responsibilities for the legal scholar to illuminate, explain, engage and advance the law – sometimes at
odds with other civil society actors – is then assessed. The potential to use evolving communications media
is considered. The practical matters of speaking with legitimacy and the inevitable problem of the
politicization of public discourses are contended with. The intersection of the legal profession with its
exclusivity of practice for the public interest and the community that is legal scholars is then surveyed.
The aim of the paper is to advance structural and evaluatory criteria to better promote the place and the
role of the legal scholar as apologist and commentator about law in Canada. In reconciling the academic
and the public considerations of law the question to be asked is what we (as legal scholars) talk about,
when we talk about law (publicly).
Keywords: Public legal intellectual
We live in a juridical age.
The animating presence of the law in civil societies of much of the
Global North and, increasingly, the Global South is a pronounced social phenomenon of our
time. The anthropology of legalism and portents for it should be of much concern to us as
scholars, in part because we ostensibly care for the material condition (and progress) of the law
for its apparent social good as much as we do our quest to illuminate the law for a wider audience
in our academic vocation.
However, the legal academy – arguably more in states with a common law derived
tradition than in those of the civil world – remains cloistered, even as the modern university (and
with it, professional legal training schools known as faculties of law) has become (somewhat)
more accessible. Scholars of law, whom we might variously label as professors, academics, and
law teachers, invariably have exceptional knowledge of subjects within their disciplines. And yet
the reach of their discourse into society is confoundingly limited. The question in Canada, at
* Barrister, Doctor of Civil Law candidate, Faculty of Law, McGill University.
Jeffrey.Smith@mail.mcgill.ca
** Jane Jacobs, Dark Age Ahead (Toronto: Random House, 2004) 63.
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least and we can extrapolate it into the setting of western countries, is why we do not move
beyond our disciplines to explain and advocate the law as law in civil society, in other words, to
engage in and contribute to the public intellectual comprehension of the law.
There are several answers to this question, and the goal of this paper is to critically
assess them, and offer – as one would expect about a matter of legal scholarship – some tentative
remedies.
I. – Juridical geography
Understanding the current landscape of law in society is a first task. The question to ask is what
is law’s province? A theory of constancy might hold that, in national civil societies (leaving aside
the realm of international law, which is continually expanding), legal rules in different forms
have governed relationships, only becoming more formal and apparently numerous with the
growth of the state. However, the empirical geography of the law defies this. The law continues
to expand, in its subjects and in its complexities within settled spheres. This is not only because
of the presence of additional Hartian primary rules of law, but of law’s domain in the ordering of
society, supplanting more social (and less formal and less state-involved) means of governing
relationships.
This phenomenon results from a shift in cultural landscapes in so-called developed or
advanced societies. The broad social trend has been consistent with the rise of industrialism in
such societies, coupled with an attendant emancipation and democratization of public
participation in the institutions of the state, most notably legislatures, but also the professions
and – although seemingly removed from the state but intrinsic to it – the university. There are
some offshoots of this which need to be recognized, including a rise in legal literacy and so
accessibility to the law across our societies, an exemplar the creation of the law school within a
university setting, and also the decline in the deference of citizens to the state and public
institutions. Ronald Niezen at McGill University describes it thus:
Juridification most commonly refers to the increased concentration and/or
extended social reach of rules, norms and procedures based on bureaucratic
institutions and legislative enactment. One form of juridification involves legal
intensification, a widened jurisdiction of legal institutions and increased recourse
to formal processes within societies in which law already preponderates in
bureaucratic procedure, dispute resolution and governance. This can be
distinguished from what I call legal substitution, the processes by which formal
law is introduced to or becomes dominant in societies or communities that have
previously relied more exclusively on informal, customary institutions and
procedures.1
There are two other circumstances which constrain the setting of the legal scholar, which is for
the most part located in university faculties of law.2 They are the inherent limits of university
life, and increasing specialization in law. Admittedly, there are some law scholars who pursue
their vocation outside the university setting, for example in Europe by moving between the legal
profession and the academy, and in other places by participating in institutions which allow a
basis for work to be pursued that are a credibility-authenticity platform akin to the university:
Ronald Niezen, Public Justice and the Anthropology of the Law (Cambridge: Cambridge University Press,
2010) 218 [emphasis in the original].
2
There is a slow movement to interdisciplinarity of legal scholars across the humanities and social
sciences (and, to a very limited extent, natural and applied sciences). Progress in the university setting is
impeded by several factors, including the role of law faculties as professional schools, and a path to tenured
appointment that increasingly requires doctoral qualification and therefore obviates engagement in other
disciplines.
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government, think tanks, and international organizations.3 University life, however, is
demanding on the legal scholar. Its triplicate requirement for scholarship, teaching, and
contributions to university administration does not leave scope for new tenure track entrants to
take on public education or commentary or advocacy roles. “Academics are busier than ever
simply carrying the burdens of increased teaching loads, unstoppably multiplying administrative
procedures, and the assessment-driven obligation to yet more publication.”4 Within this,
including the journey into tenure, there is a modest value placed on the scholar’s contribution to
public understanding and discourse about the law. There are other actors better situated
(including apparently more credibly), the reasoning goes, and the acculturation process toward
inward-facing scholarship takes some time to reverse after the destination is reached.
As in other professions and across society, law and legal scholarship has witnessed the
rise of specialization. Legal scholars have been no less immune to this, the result in the form of
specialization in the practice of law, abetted by the curricular offerings of law schools, as well as
the rise in journals with narrow subject matters, and the confining epistemics of our particular
field. Moving to the general, an initial necessary point of entry into contributing and advocating
about the law in our larger society is therefore more onerous. Moreover, our own specialization
both denies us time and opportunity to be widely engaged outside the academy and as with
lawyers, concerned with our competency and the perception of our credibility should we venture
too far from our self-regarded fields.5
The greatest barrier to the legal scholar participating in public intellectual discourse is
not that of time, merit, useful ideas or the limits of the academy, but rather the perceived lack of
personal benefit accruing from such activity. Legal scholars are as career-minded as their
colleagues in the profession (and the judiciary) making relentless that which matters for career
advancement. And that does not include public commentary or overt advocacy around or for the
law. The list of notable public intellectual legal scholars is limited. While they are found in
every field of specialization, in fields ranging from family law, to criminal law and international
law, few seem to transcend the law as discipline for the purpose of public discourse.6
The increase in legal conversation in society, coupled with emergent forms of media and
changes in traditional public media (television, radio, print publications) should create space for
legal scholars, although the extent to which such space is exploited seems to have been more the
result of the growth in the number of legal scholars and a preference in western media for expert
opinion in transient affairs. The present legal space, pace Neizen’s juridification, has multiple
“actors” present, namely our legislators fashioning law, the courts speaking as such (for judges do
rarely of their own accord in public), lawyers and, in basic matters of the legal profession,
regulating law societies.7 Other actors at slight remove from this juridical centre are routinely in
public conversation, notably non-government organizations (usually in particular subject matters
such as civil liberties, environmental protection and commerce). Law reform commissions in
common law states have fallen into decline, the victims of state economic priorities and a
There is also a modest exchange between the legal academy and the judiciary, although varied across
western states. Few law academics move or can move directly into the judiciary, at least in common law
tradition states, and so the exchange is often the reception of visiting or retired judges, acceptable given the
professional inclinations of law faculties.
4
Stefan Collini, What Are Universities For? (London: Penguin Books, 2012) 115. In the context of
advocating for the continuing role of the university in society, Collini declares that “many academics may
not be particularly well-suited, either by inclination or training, to engage in the kind of polemical writing
and speaking in the national media which may be required.”
5
The journalist and author Nicholas D. Kristof puts it thus: “A basic challenge is that Ph.D. programs
have fostered a culture that glorifies arcane unintelligibility while disdaining impact and audience. This
culture of exclusivity is then transmitted to the next generation though the publish-or-perish tenure
process. Rebels are too often crushed or driven away.” “Professors, We Need You!”, The New York Times (15
February 2014) online at: <www.nytimes.com>
6
Obvious recent stars in the public firmament have included Mary Jane Mossman and Michael Byers in
Canada; Cass Sunstein, Thomas Franck and Roger S. Clark in the United States; and John Rawls and Ian
Brownlie in the United Kingdom. Japan’s Yasuaki Onuma is an important addition to a shortlist.
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The better label is “commentator-actors”.
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sometimes-inconvenient existence for legislating governments. The location of the law scholar
in this constellation is what we consider next.
II. – Law scholars and their epistemic reach
The twin tasks of the university law scholar are epistemic, and in western (Global North) law
schools, they appear to be in balance. The first, and always foremost in the imperative of the
university and so scholarly careers, is that of research and the creation of legal knowledge
manifested in published form. The second is the delivery of legal knowledge to law students,
that is, teaching, to recipients who for the most part aspire to enter the profession.8
The social utility of law scholars is undeniable. No serious suggestion of replacing their
most visible role, teaching, can be made, and that is consistent with the progress of
professionalizing the practice of law and the yielding of its academic training aspects to a wholly
dedicated instructorate. Society may not overtly appreciate the twin task of research in the legal
academy, but that seems assured, despite structural and financial pressures on all public and
university research in many countries. The role of the law scholar is therefore already expansive.
To enlarge it further by some requirement of useful public discourse could entail compromise, of
quality or output, in the epistemic twin tasks.
It might be argued that university law scholars have a pronounced public influence in the
nature of their teaching and curriculum development work, given the power of the legal
profession whose members are trained an acculturated initially under their influence. That, of
course, is an indirect result, and in a profession which has considerable social space for its
engagement of the public in matters of law. If civil society were asked the question, what do you
demand of law academics in the public realm, what would the answer be?
An obvious response would be education. All societies benefit from a continuing
comprehension of the law, its processes and rule-making, its limits and how law shapes
institutions. To an extent lawyers must inform their clients of such things, but this approach is
idiosyncratic and never complete. The basic function of law, and law’s critique of institutions, are
what is of interest. So the idealized response is that law scholars must deploy into society. Of
course, they already do, as teachers in specialist (professional) educational settings, but that has
insulated them as commentator-actors from society at large.
The better question is why there are not more law scholars who aspire to shaping
society’s conservations through public intellectualism. To this, in turn, there are three answers.
The first is the lack of tradition of public intellectualism in the broad sense in the legal academy,
recalling Edward W. Said’s definition of the role of a public intellectual:
The intellectual’s role is dialectically, oppositionally, to … challenge and defeat
both an imposed silence and the normalized power of unseen power wherever
and whenever possible. For there is a social and intellectual equivalence
between this mass of overbearing collective interests and the discourse used to
justify, disguise, or mystify its working while also preventing objections and
challenges to it. In our time, and almost universally, phrases like “ the free
market”, privatization, less (as opposed to more) government, and others like
them, which have become the orthodoxy of globalization and counterfeit
universals, are the staples of dominant discourse, designed to create consent and
tacit approval.9
That law students are increasingly preferring careers outside of the profession seemingly validates the
utility of a university law degree as academic experience, and diminish it as a credential for exclusive entry
into the profession, so underscoring the place in a university setting of professional school. The
phenomenon is both choice, a preference away from the (lack of) rewards in a professional career, and in
recent years economic and other barriers to actually entering the profession on obtaining a law degree.
9
Edward W. Said, “The Public Role of Writers and Intellectuals” in The Public Intellectual, Helen Small,
ed. (Oxford: Blackwell Publishing, 2002) 19 at 31. He adds “… the hallmark of the era we live in is that
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For law scholars, such an expansive remit takes us beyond the mere techne of how (a) law is and
how it is to be explained and could be reformed, into the critical cultural realm of why law is.
That engages the second hurdle to law scholars assuming a more expansive public commentary
role, which is the inherent conservatism of the legal academy. In part, the indoctrination into a
carefully nuanced and specialty oriented taking of positions (or simply exegetical work) begins
with undergraduate legal studies, in which we learn the value of moderation in weighing discrete
rules of evidence. Credibility, legitimacy and reasonableness are prevailing watchwords of our
initial encounters with legal scholarship. Indeed, much of academic life – as in the profession of
law – is self-correcting in the myriad consensus settings in which our work is done, for example
through peer reviewed publications, conference and speaking invitations, research grants, and
community life in the academy. Radicalism (in the literal sense of the word), while not frowned
upon, has only limited tolerance. Challenging the meta-narratives of law in our society, to return
to Said’s exhortation above, is not a comfortable task.
The third barrier to participation in public discourse about the law, and making useful
interventions, is the perception among law academic of the skepticism of élites. This is a selflimiting construct with complex dimensions, one of them the problem of law’s politicization
given the state as central actor in its creation and administration. To be expressive about an
artefact of law in our society, or a projet de loi, or law’s reform inevitably is to be seen to take
sides, and so invite the opprobrium directed at élites. Perhaps this is the least of problems for
entering the public realm, in that such a concern can be overcome by sufficient intellectual
rigour, which inherently brings with it courage.
As noted above, the law scholar finds her or himself in a continuum of public
commentator-actors. Between the constrained ability of the courts to speak about issues of law
outside of cases, let alone critical debates and systemic reforms, and the particular limits of an
adversarially acting and self-regulating profession, there should be ample space for the law
scholar to intervene. But the roles of public discourse across the categorical groups of jurists are
not well coordinated. They do not so much overlap as they suffer from being unreconciled and
pursued in isolation from other commentator-actors. An example can be seen in the public
discussions about the rule of law in society and regulation of the legal profession. In Canada,
Australia and United Kingdom in recent years much has been properly made of both subjects
(and the common ground between them) by lawyers, law societies and the law academy.10 But no
single discourse across the actors seems to have emerged. The explanation for this
fragmentation may lie in the independence each group assumes. Jurists value independence
because of its obvious value in the protection of ideas and, for lawyers, of clients. They also value
it because of prestige-oriented ideals which itself explains why law schools remain somewhat in
thrall to the profession.11
Traditional roles played by academy and profession in public discourse must also be
noted. Lawyers are advocates, after all, and jealously guard their role in society. And so it has
been easier for other groups of jurists to relinquish public space. Indeed, a strong custom not
only demands judges remain silent about overarching legal question in society (and in the face of
opprobrium courts occasionally receive) but that the profession itself has a special responsibility
to society to illuminate the fairness and independence of the courts. On a substantive level, the
there tends to be a mainstream-media-government orthodoxy against which it is very difficult indeed to go,
even though the intellectual must assume that alternatives can clearly be shown to exist.”
10
A related matter has been civil justice “reform”, largely concerned with access barriers faced by litigants
including cost, systemic delays, and procedural complexities. See e.g. the report of the United Kingdom’s
Lord Woolf, Access to Justice (1996): <http://www.dca.gov.uk/civil/final/overview.htm>
11
Law teachers chafe at curricular requirements demanded by law societies. The long-running problems
of accreditation of law schools in the United States to the satisfaction of the American Bar Association (the
ABA) is an example. Another is found in the current response of various Canadian provincial law societies
to the proposed opening of a faculty of law at Trinity Western University in British Columbia, which
requires students, staff and faculty to commit to observing a Christian values derived Community Covenant
that, among other things, forbids same-sex relationships.
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tension between the courts and the executive in many countries, which can be salutary if held in
balance, routinely makes for much public discourse that law academics need not, or have not,
been drawn into.
III. – Tentative Remedies: An Acquis
Society’s problems are complex. The need for scholars of law to more fully engage those
problems, and in an overt public discourse through the exchange of critical ideas, seems evident.
If this can be accepted, then the question turns to the means by which law scholars can act as
public intellectuals, while maintaining the essential epistemic tasks of research and teaching. In
other words, how can there be balance in the closer engagement of law scholars to the societies
in which they work?
Four remedies can be suggested. The foundation or synthesis across them is a closer and
more continual engagement of the legal academy with civil society. A spanning of distance is
needed, and that implies comity between the juristic commentator-actors described above.
To begin with, the legal academy must consider its place in society. Where do the twin
epistemic tasks of scholarship and teaching fall short of the mark of education in the public
sphere and critical commentary about the legal questions of the day? Some other questions
frame this consideration. How differentiated should public engagement intervention by legal
scholars be in comparison to other disciplines? What are the implications for the law academy’s
relationship with the legal profession? How will reputational risks be addressed?
The principal question in the engagement of the law academy with civil society is the
benefit that is to be realized by society. Of course, there should be a reciprocal utility for the
legal academy and individuals within it, in a way that overcomes the entry costs described above,
notably in the all-important quest for career advancement.12 But what is society to receive? Or,
more accurately, to receive that it does not already have from other groups on the legal
landscape? Edward W. Said offers two things generally about the contribution of public
intellectuals, neither entirely comfortable to an inherently conservative legal academy:
The intellectual’s role is first to present alternative narratives and other
perspectives on history than those provided by combatants on behalf of official
memory and national identity, who tend to work in terms of falsified unities, the
manipulation of demonized or distorted representations of undesirable and/or
excluded populations, and the propagation of heroic anthems sung in order to
sweep all before them …
The second is to construct fields of coexistence rather than fields of battle as the
outcome of intellectual labour.13
Expressed as such, this is challenging territory. Entry into the public fray in our time is fraught
with contention. The space for respectful exchange of ideas seems to be narrowing, if the
experience of contending groups and politicians is a guide. A challenge to or critical illumination
of dominant legal narratives in society inevitably brings government into question, being the
creator and administrator of much of the law and seemingly with a democratic mandate to
fashion the law for particular social good and policy ends. What’s needed here is not
confrontation, but pluralism.14
Canadian universities make provision in collective labour agreements with their professoriates for
leaves of absence over extended periods to elected office, but not so often into government or international
organization or think tank roles. This, together with narrow criteria to advance in tenure, diminishes
adventurism toward periods outside the academy.
13
Supra note 9 at 37-38. Any suggestion of timidity in the academy would be unfair, recalling for
example, the supremely talented advocacy of lawyer-academic Raphael Lemkin.
14
Pluralism, therefore, demands a rethinking of how law academics enter into discourse.
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There are then specific measures to foster public intellectualism by the law academy.
Three can be offered. First, a transformation in academic culture, with an inclination to credit
for service to the university community being extended to participation in the public realm. Of
course, many law academics make considerable public contributions, in volunteer situations
unrelated to law. A part of this transplantation could be rather formal. Why shouldn’t courts
have academics in residence? And, for that matter, law academics might more readily engage the
legal profession, for example by participation in governance and regulation. Independence
norms across juridical groups are important, but collegiality is a pressing imperative for society.
Deploying law academics as such into civil society needs recognition.
A second tangible measure, noted above, is a pronounced coordination between juridical
actor-commentators. Initially, the conversation would extend only to specific projects or current
controversies. The challenge will not be so much a profession-and-academy consensus as the
involvement of the courts. A modest initiative would be a standing platform for public discussion
of society’s legal norms. This is neither a debating chamber nor a taking of the law school into
the public setting. And care would have to be taken that such a commentary vehicle does not
become exclusive, an internally self-referent echo chamber. An “Observatory of Law in Society”
may now be timely. And the credibility of the academy gives it a central role in hosting (and
animating) such a function. It could have modest beginnings as a place of public information and
discussion adjunct to law schools, but clearly not an entire project of those schools. Such a
“philosophical legal clinic” would succeed by reaching into other disciplines and respecting
scholarship and public participation from a variety of sources, in favour over those traditionally
from the university.
There are a variety of means to participate in and contribute to a public intellectual
discourse. What has been suggested thus far is the a priori move or shift of the law academy as a
whole (somewhat) closer to society.15 However, just as with traditional writings (and public
pronouncements) of legal scholars for broad audiences, individual academics are migrating into
public space through new media, notably the web. This is going some way to fostering the role
of law-academic-as-educator-in-society and has seemingly been without much risk, or prejudice
to the social standing (the prestige) of the academy. The internet may not be democratizing the
law, but it is making it more accessible across society, a desirable result for the discourses to
come.16
Law is a large project in our societies. It is under continual reinforcement as the
normative centre, the just centrality in the function of civil society. So law academics, whose
contributions in scholarship and teaching are immeasurable, need to be alive to such a shifting
pattern. How they individually and collectively engage the transformation of the conversation of
law in society is the continuing question.
Just how far removed the academy is from civil society was a concern of Edward W. Said. “In the
meantime, it is almost sobering and terrifying to contrast the world of academic intellectual discourse
(mainly the humanities, but not [sic] the natural sciences or even the social sciences) in its generally
hermitic, jargon-ridden, unthreatening combativeness, with what the public realm all around has been
doing. Masao Miyoshi has pioneered the study of this contrast, especially in its marginalization of the
humanities. The separation of the two realms, academic and public, is, I think, greater in the United States
than anywhere else …” Supra note 9 at 23.
16
Marshall McLuhan is inescapable here: “… ‘the medium is the message’, for the medium determines the
modes of perception and the matrix of assumptions within which objectives are set. All of my
recommendations, therefore, can be reduced to this one: Study the modes of the media, in order to hoick all
assumptions out of the subliminal, non-verbal realm for scrutiny and for prediction and control of human
purposes.” “Is It Natural That One Medium Should Appropriate and Exploit Another?”, reprinted in
Essential McLuhan, Eric McLuhan and Frank Zingrone, eds. (Toronto: Anansi, 1995) 180 at 188.
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