Johns, Fleur --- "On Writing Dangerously" [2004] SydLawRw 23; (2004) 26(4) Sydney Law Review 473

• On Writing Dangerously*

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On Writing Dangerously*

FLEUR JOHNS†

I was very honoured by the invitation to speak today and I would like to thank the conference organisers for putting together such a tremendous event and for including me in it. However, I must say that it struck me at the time of the invitation that my consecration as knowledge-bearer — and therefore a legitimate choice for keynote speaker — was dependent on a rather arbitrary confluence of events. Once again, the contingency of educational hierarchy seems particularly acute to me at this moment.

I stand before you bearing promise of an intellectual ‘key’ — that instrument which keynote speakers rightfully proffer. Just a few short months ago, however, I would have been sitting among you, weighed down with locks the keys to which eluded me.[1] Now, having passed through the ceremony of doctoral endowment, I am supposedly imbued with authority. My unopened locks are safely hidden. A new title is smoothing my way.

So, riding awkwardly on the crisp coat tails of said title, I will broach the theme of this conference — ‘Law in a Changing World’. There it is — the conference slogan. It beckons us, ‘come on, come on; get with the program’. It taunts us: ‘the presses are running and obsolescence looms’. It rallies us, ‘things, people and ideas are on the move; there is so much to be done’.

This slogan has been doing the same to others, it seems. Books flourish beneath this title: Human Rights in a Changing World by Antonio Cassese; Comparative Law in a Changing World by Peter de Cruz; Islamic Family Law in a Changing World by Abdullahi An-Na’im; International Arbitration in a Changing World by Albert Jan van den Berg.[1]

Symposia and conferences are being convened under the same generous rubric: National Security Law in a Changing World (in Washington DC, the United States in December 2000); European Culture in a Changing World (in Aberystwyth, Wales in July 2002); Woman in the Changing World (in St Petersburg, Russia in October 2002); Legal Information in a Changing World (in Cape Town, South Africa in September 2003); and American Citizenship in a Changing World (in Dublin, Ohio).[2]

Indeed, the prior century abounds with reflections along similar lines. In 1910, Woodrow Wilson appealed to the American Bar Association to ‘look what legal questions are to be settled — how stupendous they are, how far-reaching’. ‘Some radical changes we must make in our law and practice’, he continued. ‘Some reconstructions we must push forward which a new age and new circumstances impose upon us’.[3] The year 1939 saw the publication of historian C H McIlwain’s celebrated text Constitutionalism and the Changing World.[4] In 1958, lead articles in both the Washington and Lee Law Review and the Indiana Law Journal speculated as to ‘The Role of the Lawyer in a Changing World’.[5] In 1964, Sir Zelman Cowen delivered the Rosenthal Lecture at the Northwestern University School of Law in Chicago, speaking to the title ‘The British Commonwealth of Nations in a Changing World: Law, Politics and Prospects’.[6] The 1970s produced books such as The United Nations in a Changing World by Leland Goodrich.[7] The trail continues.

The only thing unchanging, it seems, is a prevailing preoccupation with the prospects of law in a changing world.

Everywhere one looks, law is struggling to catch the quicksilver of surrounding change. Everywhere one looks, scholars and students of law are struggling to catch a whisper of the yet unthought or yet unwritten and so to secure their timeliness. How lumbering we are made to feel in the process. Consider the role in which our discipline is cast — law in a changing world. The changing world is all around us and yet we are not of or up to this world. Law is the toddler lunging at bubbles and grasping for words. Lawyers are in and out at the same time: central and yet strangely beside the point.

So the idea of law in a changing world seems, at first, to imbue law with inflexibility and inertia. Yet law too has the mercurial quality that we so readily attribute to the world. Think of rights. Think of the tone of an assertion of right in law — its definitive, stake-in-the-sand quality: ‘Afghan women have a right to education’. Think, then, of what questions might follow from such an assertion. Do Afghan women also have a ‘right’ to challenge liberal, humanist educational norms such that their educational transformation might permit them to become something other than right-bearing, educated Afghan women? Moreover, do Afghan women have a ‘right’ to challenge their classification as such — to dissolve themselves into polyvalent constituencies defiant of the unity and sufficiency of terms such as ‘Afghan’, ‘Muslim’ and ‘Woman’? Rights-related claims and questions have a tendency to proliferate and deviate. Rights bite back.

Perhaps legal scholars’ persistent preoccupation with law in a changing world manifests an intuitive appreciation of the errant instability of our legal understandings? Perhaps, moreover, this instability extends beyond the difficulty of maintaining laws’ correlation to something that we call the Real World?

One might just as well have called this conference ‘the world in a changing law’. Each time that we produce law to match the world, we produce world to match the law, and vice versa. To assert that Afghan women have a right to education is to posit the necessity of ‘rebuilding’ Afghanistan by reference to a legalist, humanist, procedural and secular calibration of what is right and good, in which the pre-eminent experience of freedom is to be the experience of self-completing choice. ‘That’s ok’, you might say, ‘I’m prepared to stand up for that’. Yet wouldn’t ‘standing up’ for such a proposition also logically require one to stand up for the possibility that the variable constituencies that we label Afghan women might opt for some other world? Can we be sure that we would wish to support every outcome that the procedural assurance of a ‘right to education’ might yield? Here we confront the age-old realisation that a ‘right’ is also a proscription or, as Thomas Hobbes would have had it, a divestiture of right.[8] Rights demand that those in whom they are vested refrain from undermining the authority of the right-granting regime. Our righting is also a wronging, demanding endless reconsideration, accommodation, regulation and opposition. Law in a changing world melts readily into a slippery, perilous morass of law/world.

Yet in the midst of all this changefulness, let us not forget law for a changing world. Let us not forget the propensity for this slippery morass to congeal into the normative. Let us not lose sight of our desire for it to do so. Let us, in the words of Wendy Brown and Janet Halley, ‘acknowledg[e] the rawness and fury of [the] will to power’ embedded in our conscious and unconscious efforts to sculpt this morass in one or other direction.[9] Let us remember the excitement, urgency and passion with which that earlier assertion can resonate: ‘Afghan women have a right to education’!

It is this thrill which so often enlivens research work in law — the sense of law rushing to the aid of one or other constituency amid hazardous, shifting conditions. Afghans and others need us to try to figure out the role of law in a transition to democracy! The music industry needs us to try to reconcile the claims of musical creators, music audiences and those engaged in the business of selling music! Disenfranchised sectors of Australian society need us to try to rid judicial interpretation of the evils of legalism or formalism ... and so on and so forth. Students and scholars of law rally from all sides to meet appeals of this sort. Legal scholarship seems to thrive on identifying and addressing the most pressing of problems. In this problem-solving mode, law appears to be changing both with and for the changing world.

At this point, let’s take stock. So far, I have made four points concerning the task of thinking about law in a changing world. First, I reflected upon the arbitrariness of my addressing you here as a supposed bearer of learning on this topic, thanks only to the ritual formality of a graduation ceremony. Secondly, I remarked upon the curious hold that the idea of law in a changing world seems to have maintained upon legal scholars of this and the prior century. Thirdly, I drew the first and second points together by positing some intuitive realisation, on the part of legal scholars, that changefulness is not merely a property of the world ‘out there’ to which law must respond. Rather, instability is also acknowledged as a property of law and legal authority. Fourthly, I recalled the remedial, corrective impulses with which legal research so often confronts this sense of insecurity in the law/world dynamic.

Let me draw together, now, the first and fourth of these points — the contingency of educational hierarchy and the problem-solving fixations of contemporary legal research and scholarship. For the postgraduate student, the irresolution of the former seems frequently to compound an inclination towards the latter. The sense of pressure that contemplation of the ‘changing world’ tends to evoke in legal faculties is redoubled by the economic and institutional precariousness that postgraduate students are compelled to endure. Notwithstanding the fact that postgraduate education remains a province of the middle and upper-middle classes, the submissions of student representative bodies to the Senate Community Affairs References Committee Inquiry into Poverty in Australia attest to the economic hardship and isolation that many students experience.[10] Institutionally, postgraduate students tend to occupy a nether world between the status of an academic and the status of a student; between permanent employment and unemployment; between the hauteur of the select few and the humility of the run-of-the-mill examinee.

For those navigating this precarious path here at the University of Sydney, our Faculty offers the following guidance. We request that those applying to undertake a research degree present a detailed research proposal outlining, among other things, a ‘rationale for the research and a statement of why it is significant’.[11] Exactly how the ‘significance’ of a research proposal and the legitimacy of its ‘rationale’ are to be assessed in this context is not clear. The research orientation of faculty members making the assessment (including the prospective supervisor) will inevitably inform this evaluation. Faculty members’ ideas about research will in turn be influenced by the bearing of those authorities that fund, publish or otherwise promote particular types of legal research — the Australian Research Council (ARC), for example.

By identifying ‘areas of national priority’ for research funding, the ARC fosters an orientation towards measurable outcomes that correlate to current thinking about gaps and flaws in Australia’s knowledge base.[12] The role of the legal researcher, according to this conception, is to scan the ground of available legal knowledge and identify holes to be filled, obstacles to be toppled, or tools to be adapted to new purposes. At each stage, the endeavour is to be referable to a ‘rationale’ of utility or effectiveness to one or other constituency. It will be all the better if that constituency is depicted in expansive terms and includes persons outside the academy — those who are envisaged to comprise, or to have a closer affinity with, the ‘Real World’.

To ‘get ahead’ in the unsteady hierarchical environment of tertiary education, postgraduate students and faculty alike are encouraged to orient their research towards problem-solving, gap-filling and outcome-delivery, largely for the nominal benefit of constituencies external to their educational setting. The invitation to reflect upon law in a changing world may be read in support of this tendency. ‘Law in a changing world’ might be understood, as I suggested a moment ago, to cast law as a relatively static, complete and pivotal body of knowledge. It must, according to this reading, perpetually be adapted, rationalised, extended and updated in order to fit the problems, questions and scenarios thrown up by the changing world. This would depict law less as an infant, as I suggested earlier, than as one of Darwin’s finches.[13]

I want to suggest, however, that there are ‘rationales’ — perhaps even ‘significant’ rationales — for formulating and assessing legal research other than by reference to such a progress-oriented, evolutionary, functional calibration of ‘significance’. My intuition is that, to the extent that legal research in Australia exhibits a problem-fixation, this problem-fixation is itself deeply problematic. Moreover, the problematic aspects of this problem-fixation are not amenable to the sort of corrective strategies that problem-fixation is inclined to foster.

My principal concerns are threefold.

First, to direct research towards solving the problems of an extra-academic, extra-legal constituency is to orient that research — and those undertaking it — away from asking questions of the institutions, practices, ideas and people that produce legal knowledge, including the legal academy. This, in turn, encourages acceptance of the particular allocation of symbolic, social and economic capital that is effected and reproduced through tertiary education.

Pierre Bourdieu’s painstaking studies of academic forms of classification in France demonstrate that the pedagogical practice of elite educational institutions may be read as an elaborate ‘rite of institution’ that confers ‘a seemingly rational justification [upon] the ceremonies of consecration through which societies claiming to be rational produce their nobility’.[14] Notions of meritocracy as drivers of academic success, the ‘ideology of “public service”’ and the ‘worship of productivity’ all combine, Bourdieu argues persuasively, ‘to inspire in ... new leaders the most absolute certainty in their legitimacy’ as wielders (or minions supporting the wielding) of social, political, economic and symbolic power.[15] Obviously, these rather sweeping statements call for further elaboration and substantiation — both of which Bourdieu’s scholarship amply provides.[16] I do not have the time to do justice to that scholarship here today. My point at this moment is simply to highlight that an orientation towards urgently delivering intellectual services to the ‘Real World’ — imagined as external to the university — discourages reflexive inquiry along these lines. As such, it encourages students and teachers alike to extend to others the experiences and relationships that were presented to them as ‘normal’ over the course of their education — including highly sublimated forms of domination.

My second concern as to the preoccupation of legal scholarship with pragmatic problem-solving is that this sensibility cultivates and reinforces a particular dynamic in relations between law and change, between legal research and legal practice, between the academy and the profession, and between legal ‘experts’ and non-legal ‘lay persons’. More often than not, this is a relation of hierarchy or distinction, operating at a variety of levels. Consider, for example, the authority with which political commentary in a newspaper is invested by the inclusion of that italicised text at the end of the article identifying the article’s author as a legal academic. Modes of research that imagine legal researchers as producers responding to the changing needs of a consuming world or public tend to down-play the mutually constitutive and interdependent character of the former (producers’) claims to authority and competence and the latter (consumers’) articulation of needs and desires.

A problem-solving, service-delivery orientation disregards, as well, the fact that life as a lawyer is always imbricated in, say, life as a lover, a voter, a neighbour, a friend, a colleague, a member of the middle class, a sometime musician and a size 12. The particular way in which a person undertakes legal research will both arise from and contribute to the interplay between these various social roles or practices and their combined social, economic and political effects. Law is both an incident of and a stake in the processes of classification by which we seek to divide and rank the world and its tangible and intangible resources. To envisage legal research as entirely reactive is to configure those divisions and rankings as pre-existing and to seek to produce legal knowledge in the service of their reproduction.

The third and final concern that I wish to foreground today, is the extent to which the Real World problem-solving mode of legal research tends to focus attention on state-managed or otherwise institutionalised processes of change and decision. This is the case notwithstanding the fact that, in many cases, the research in question purports to be attuned to forms of power and organisation that don’t correlate to the boundaries or formalities of the nation state. A conviction is nonetheless widely cultivated in Australian legal scholarship that John Howard, George Bush, Amanda Vanstone, Geoff Clark, One Nation, the WTO or someone or other is really the problem with which legal scholars must come to grips. An audience member with this inclination might have seized upon my earlier reference to the ARC, concluding: ‘Ah, so if only we could reform the ARC, we might correct this problem ...’.

Such an approach leaves uninterrogated the many euphemized or vernacular ways in which symbolic and other forms of social power are produced, allocated and retained in, through and by law. As a result, there are certain rules and practices that tend to fall repeatedly into the background of issue areas identified for legal scholarly scrutiny — rules of private law, rules of zoning, rules of etiquette, academic merit, speech and fashion, for example.

Law in a changing world might, however, be read as an invitation to engage with these problematic aspects of the problem-solving orientation in legal research. The theme ‘law in a changing world’ might be understood in terms of immersion and complicity, rather than in terms of detachment and reactiveness. The questions that we ask of the changing world from the legal perspective might be posed to or of that legal perspective at the same time. This brings me to the title of this talk: ‘On Writing Dangerously’.

What is, or can be, dangerous about legal research and writing? The sense of economic and institutional imperilment, which many postgraduate students experience, represents one element of danger. Yet in an environment that values subservience to utility, a further risk may be taken by refusing to mimic that gesture of genuflection. The risk here is embodied not only in the prospect of institutional alienation, but also in the act of putting the destination, purpose — or rationale — of one’s research in question. The danger of which I am speaking is that involved in lingering with the problem rather than pressing forward to appease the alleged need for a solution. Here, let me quote Wendy Brown and Janet Halley once more, this time at greater length:

In the insistence that all political intellectual work must be directly addressed to suffering and its potential redress, there is a radical foreclosure of the very intellectual range and reach which is opened and pursued by critique ... Critique potentially reinvigorates politics by describing problems and constraints anew, by attending to what is hidden, disavowed, or implicit, and by discerning or inventing new possibilities within it. But critique can do this only to the extent that it is unbridled from the terms of the political problem that animate it ... [C]ritique cannot bear fruit if ... seamless reconciliation of political and intellectual life is demanded, if we bestow the power of foreclosure on the questions Where is all this going? What are the political implications? What is to be done?[17]

To the extent that institutions insist upon postgraduate research knowing — or claiming to know — what is to be done, those institutions (my own included) demand the sort of foreclosure that Brown and Halley decry. It is risky to resist this foreclosure. Yet there are many, many ways in which such resistance might fruitfully and pleasurably be enacted. One might follow one’s intuitions and impulses in the course of research, for example, rather than adhering strictly to the linearity of logic or progress. One might focus one’s attention backwards or sidewards, rather than forwards — probing rumours of the past and the present, rather than endless narratives of potential. One might engage in the hard work of doubting or questioning the normal and the natural, upending the similarly arduous task of believing in these. One might turn a critical eye not to that which seems most flawed and unjust, but to that which seems most unarguably righteous. These are all invitations to engage in writing cut adrift from knowing that one is in the right — writing that is dangerous for that very reason.

Here my appointed task is to come full circle and deliver the key to knowledge that I supposedly bear. Haven’t I have beaten around the bush in getting here? I have remarked upon the arbitrariness of the anointed crossover between knowledge consumer and knowledge delivery-person — between key-holder and lock-bearer. I have noted the remarkable endurance of legal preoccupations with the ‘changing world’. I have suggested that legal scholars nevertheless recognise volatility as a property of legal authority, in messy combination with that which we perceive as the world external to law. Finally, I drew these various observations into an argument against the pre-eminence of problem solving in legal research and writing. I argued for resistance to demands for outcome-delivery. I raised three concerns with a consumer-satisfaction approach to legal inquiry. I contended that this approach discourages reflexive interrogation; that it reproduces a particular relationship of distance and distinction between legal experts and non-legal laypersons, or between the academy and the profession; and, finally, that it tends to affirm the centrality of the state and disregard the relevance of background rules. I lauded the possibilities for writing dangerously against such an approach.

Yet alas, writing dangerously in one or other of the ways that I have hinted is no skeleton key to success. Indeed, it may be just the opposite — hence the danger. As you already know, ours is lonely work, punctuated by sharp spasms of despair and exhilaration, camaraderie and doubt. Yet the occasional paroxysm of insight is, strangely enough, worth the risk. It is the risk as well as the reward. For the moment, I have spoken and you have, generously, listened. Here, at the end of it all, there remain locks to be tackled, risks to be taken. For that, I will hand back to you and take my turn in the audience. For you are key-makers too.

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* An edited version of the keynote address delivered at the 5th Annual Postgraduate Research Conference of the University of Sydney Faculty of Law on 31 October 2003.

† Lecturer, Law Faculty, University of Sydney.

1 The speaker was awarded a Doctorate of Juridical Science (SJD) from Harvard University in June 2003.

[1] Antonio Cassese, Human Rights in a Changing World (1990); Peter De Cruz, Comparative Law in a Changing World (2nd ed, 1999); Abdullahi A An-Na’im, Islamic Family Law in a Changing World: A Global Resource Book (2002); Albert Jan van den Berg (ed), International Arbitration in a Changing World (1994).

[2]American Bar Association Standing Committee on Law and National Security, The Tenth Annual Review of National Security Law in a Changing World (Washington DC, 2000); International Society for the Study of European Ideas 8th International Conference, European Culture in a Changing World: Between Nationalism and Globalism (Aberystwyth, 2002); St Petersburg Social and Economic Institute and Social Department of the Council of Europe 9th International Conference, Woman in the Changing World (St Petersburg, 2002); International Association of Law Libraries, New Rights – New Laws: Legal Information in a Changing World (Cape Town, 2003); and Ohio Centre for Law-Related Education, American Citizenship in a Changing World (Dublin, Ohio, 2003).

[3]Arthur W Spencer (ed), ‘Woodrow Wilson’s Appeal for the Lawyer’s Skill in Meeting the Problems of Social Change’ (1910) 22 Green Bag 585 at 586–587.

[4]C H McIlwain, Constitutionalism and the Changing World (1939).

[5]Harold A Smith, ‘The Role of the Lawyer in a Changing World’ (1957– 1958) 33 Indiana Law Journal 198; Arnold J Toynbee & John J McCloy, ‘The Role of the Lawyer in a Changing World’ (1958) 15 Washington and Lee Law Review 188.

[6]Zelman Cowen, The British Commonwealth of Nations in a Changing World: Law, Politics & Prospects (1965).

[7]Leland M Goodrich, The United Nations in a Changing World (1974).

[8]Thomas Hobbes, Leviathan (CB Macpherson ed, 1968) at 189–201.

[9]Wendy Brown & Janet Halley (eds), Left Legalism/Left Critique (2002) at 15. On the ‘will to power’, see further Friedrich Nietzsche, Jenseits von Gut und Böse. Vorspiel einer Philosophie der Zukunft (1886) reprinted as ‘Beyond Good and Evil: Prelude to a Philosophy of the Future’ in Basic Writings of Nietzsche (Walter Kaufmann trans, 2000) at 220–222.

[10]See, for example, Melbourne University Student Union, ‘Submission to the Senate Inquiry into Poverty in Australia’, paper submitted to the Senate Community Affairs References Committee Inquiry into Poverty and Financial Hardship, March 2003; Southern Cross University Student Representative Council, ‘Submission into [sic] the Senate Inquiry into Poverty’, paper submitted to the Senate Community Affairs References Committee Inquiry into Poverty and Financial Hardship, March 2003.

[11]The University of Sydney Faculty of Law Postgraduate & Continuing Legal Education, ‘Additional documentation that must accompany research degree applications’: <http://www.law.usyd.edu.au/InformationPack/Research_Proposal.pdf> (3 November, 2003).

[12]See, for example, Australian Research Council, Strategic Action Plan 2003–2005 (Canberra: AGPS, 2003).

[13]See Charles Darwin, Journal of Researches into the Natural History and Geology of the Countries visited during the Voyage of H.M.S. Beagle round the World (2nd ed, 1902). See also David Lack, Darwin's Finches (new ed, 1983); Peter R Grant, Ecology and Evolution of Darwin's Finches (1986).

[14]Pierre Bourdieu, The State Nobility (Lauretta C Clough trans, 1996) at 73.

[15]Id at 335.

[16]See generally Bourdieu, above n15 and Pierre Bourdieu, Homo Academicus (P Collier trans, 1988).

[17]Brown & Halley, above n10 at 33.