Academic questions

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Roderick A Macdonald*


The paper which has been reproduced in your Conference Materials is, in many ways, a reflection of McLuhan’s dictum that “the medium is the message”. Consequently I should like to begin my presentation with a brief note on methodology. I start from three assumptions. First, I believe that we all speak best when we speak from experience, and that therefore, we ought always to attempt to hold that experience up for critical examination by others. Second, I believe that we all know a lot more about things than we can say when called upon to do so explicitly and in a scholarly format — in our practices, in our unstructured interactions, in our collegial discussions, in our informal conversations we show understanding which is richer than in our discursive texts. Third, the most profound lessons are not those which we are told ex cathedra by others, but those which we discover ourselves in interpreting diverse human practices and symbols — such as letters from Deans.

It follows that the letters reproduced in the paper are presented warts and all — sexist and other gaffes unexpurgated. I am grateful to my various colleagues and former students for their comments on the piece, and most importantly, for having given me the occasion to write the letters comprising “Academic Questions”. I only hope that it is faithful to their understandings and expectations. Before I launch into my prepared presentation, which incidentally, takes the form of yet another letter to now Professor Genevieve Martin, let me offer the standard disclaimer about my competence to giving this paper by means of a variation on the old joke about a retiring Dean’s advice to a successor.

At the appointed date for passing on the reins of power, the former Dean hands the new Dean four envelopes, with the admonition: when things first get bad, open envelope #l; when you feel you are losing control of the Faculty, open envelope #2; when you get petitions demanding that you resign, open envelope #3; and when even your family thinks you’re becoming paranoid, open envelope #4.

Sure enough, after the honeymoon period wore off, grumbling began to emerge in the Faculty. The new Dean timorously opened the first envelope. It said: Blame Me. So for the next year the new Dean criticized the previous Dean, explaining that all the Faculty’s problems were the result of bad planning, and that soon things would get better. Well, as you know, they never do get better. After a second year of no salary increases, and a particularly high examination failure rate, both professors and students were in a vile mood. Figuring that this was the designated second occasion, the Dean opened envelope #2. It said: Strike a Faculty Review Committee. This brilliant strategy calmed things down for another year or so. But then the Committee reported. Soon after, petitions calling for the Dean’s resignation began to circulate. This was the occasion for envelope #3. Inside was a note: Launch a Fund Raising Campaign for the Library — and name your severest critics as joint organisers. Once again the advice had the required effect. But, no stratagem lasts forever, or satisfies all constituencies. Some time later, the pressures of Deaning provoked the long-anticipated family crisis. Even the pet budgie stopped singing when the Dean came into the room. With trepidation envelope #4 was opened. It said only: Prepare 4 envelopes.

Well I could stop now: scapegoating, committees, fundraising and shirking responsibility pretty well capture the pathologies of contemporary Legal Academia. But I won’t stop here. Let me instead turn to the text I have prepared for delivery today. As I mentioned, it consists of yet another letter to now Professor Martin, this one written from Perth, ostensibly on July 14,1991 (that is, tomorrow).
July 14, 1991

Ms Geneviève Martin

Faculty of Law

McGill University

3644 Peel Street



FAX: 0011-1-514-398-4659

Dear Geneviève
No doubt by now you must be well established at McGill. I hope the move from Geneva didn’t prove to be too difficult. I’m sorry that your work at the Swiss Institute of Comparative Law held you up till after we left on sabbatical. But, having missed your arrival in Montreal just gives me all the more reason to write regularly. Please keep in touch about how things are going with your research and course preparation.

Yesterday I presented my spiel on “Academic Questions” to an audience of about 120 law teachers from Australia and New Zealand. As I suspected it would, my paper and presentation drew a mixed reaction. Some in the audience were polite, but sceptical — being rather more interested in getting information about the “careerist” aspects of legal academia: how does one get hired? what are the salaries? should there be a system of merit-driven increments? how do various promotion and tenure schemes work? what are the normal teaching loads for the different ranks? how much committee work is expected? what kind of research output is required? etc. I thought I had addressed most of these questions — at least indirectly — by reproducing my hiring correspondence over the years. But, perhaps I should have dealt with them in a more familiar format, complete with the appropriate stylistic conventions and footnotes.

There were others, however, who seemed to find my presentation more congenial. These were probably those who had had the time to read and think about the paper in advance. Indeed, the themes of Academic Questions fitted in quite nicely with some of the other papers delivered at the Conference. Still others in the audience thought that the piece was just another example of American self-indulgent crap, spun off in a hurry for an easily-bamboozled foreign audience. I guess I’m not well placed to speak to the “self-indulgent” charge, but you know from experience that the article was not just “spun off’ in a hurry. I’m also a little offended to be lumped in with the “Americans” — as if Canadians can’t also produce junk in their own right. Perhaps I should have written the bulk of the letters in French, or at least spiffed them up with a few recognizable Canadianisms, eh?

After the session I had several very interesting conversations with people from a variety of Faculties. Rather impolitely, I scribbled down their comments for use in the eventual Introduction to the formal paper. I’ve set them up as a series of propositions, which (playing to the “Academic Questions” theme) I’ve labelled “Model Answers”. When I gave the paper yesterday I used a similar format, under the title “Practical Answers?”, as a way of tying the ideas in the paper together. I had initially considered attempting to be cute by engaging the audience in a Socratic dialogue with a new series of academic questions. But then I remembered what happened to Socrates. So I decided not to “hide the ball”. Instead, like the paper itself I gave the answers without the questions.

Frankly, I had another reason for doing it this way as well. During my third year at Osgoode Hall, there was a “security leak” discovered just prior to my Commercial Law exam. The professor, at wits end for a new question, asked that standard fall-back as a substitute: “Compose an exam question which canvasses the principal issues in this course, and then answer it”. Being a bit of a smart-ass I wrote the following as my answer, convinced he’d have to give me an “A: “Compose an exam question which canvasses the principal issues in this course, and then answer it”. When the marks came out I got only a “C. Indignant, I made an appointment to see him to ask why. He replied: ‘You’ve only answered half the question. To get an “A” you would have had to write the sentence twice — once to compose the exam question, and a second time to answer it”. A valuable lesson that was. It’s very easy to be too cute by one-half.

So, here are my revised and corrected “Model Answers” to ten “Academic Questions”. I’d really be interested in finding out whether you think they bear any relationship to those I gave during our exchange of correspondence about your own recruitment to McGill. And please treat them like any “Model Answers” — not as exhaustive (or universal) truth in themselves, but as tentative (and contextualized) invitations to further inquiry.

* * *

First, whatever else it can aspire to be, law teaching is a job. No matter how idealized by people giving papers at academic conferences and by Deans, law teaching involves the performance of a number of specified tasks which can, at least theoretically, be grouped together under something called a “job description”. Whatever else one does in exchange for a salary, there is a minimum (however slight tenure may have made that minimum) component to the job which must be met. Moreover, because law teaching is a job, it also has a boss. And the boss has a boss as well. Complex organizations like Universities are no less bureaucratic simply because their product is intellectual rather than material. In fact, given their amorphous character it is probably the case that Universities are more bureaucratic than the plant floor.

But, of course, a professorial position is also more than a job; it is an office, a role — with its own criteria for tenure and its own role morality. One is not being a wishy-washy liberal in claiming that “just doing your job isn’t good enough. I was struck in my conversations by the number of people who in all seriousness (that is, not metaphorically) took one or two extreme positions, saying EITHER: law teaching is not a job, it is wonderful — imagine getting paid to do what you’d do for free anyway; OR, law teaching is just like any other job -it’s the same as a union sweat shop except that the Dean is the foreman. As is always the case, the truth lies somewhere in the middle.

Second, law teaching is a career, a vocation. It is not just casual employment, but demands a major commitment of energy and especially, emotion. Of course, it is not always a life-time enterprise. There are many casualties on the way to retirement. Some (but only a very few) take the form of denials of tenure; and even fewer flow from “dismissal for just cause” related to incompetence. Most are the result of an inability to cope with the ups and downs of daily living: the inevitable minor career disappointments; the personal frustration which comes from realizing that one is growing older faster than one is growing wiser; the (usually unfortunate, but sometimes unforgivable) indiscretions and transgressions which afflict any career.

To see law teaching as a career means to recognize in oneself the play of overweening ambition, jealousy, greed, intolerance, anger, indiscipline and the “rather singular sin” of languid indifference (perhaps better known in its modern variants of idleness and sloth). It also means to confront alcoholism, drug dependence and depression with empathy and understanding. Finally to conceive law teaching as a career compels us to acknowledge and denounce repeated power-tripping, intentional insensitivity to others, and abuse of confidence (especially as this works itself out in sexual relationships with students and spouses of colleagues). Briefly, to see law teaching as a career means seeing it as a project worthy of one’s commitment over a lifetime, regardless of how long one actually devotes to the endeavour.

Third, law teaching does not have a single model for its exercise. As with most things in life, there is no “one right answer”. As my mother used to say to me after a squabble with my siblings: “Look Rod, you’re not perfect. Neither are they. You should be glad they’re not just like you. Even if I were perfection personified, I could think of no hell on earth worse than being surrounded by people just like me”. Of course, the lessons of diversity and plurality are easily stated (and misunderstood) in the abstract. But they are lessons which (properly framed) must be and can only be learned in the living. Post-modernism can be parodied as a wonderful parlour-game; critics insisting that the law faculty is nothing more than a protective cocoon for speculating about “what might be”. But actually living a life which is contingent (that is, which is responsive to difference) demands passion and patience — in the sense of the Latin patior. How many people who claim to be post-modernists do volunteer work in political organisations? How many even deign to make the despised liberal’s usual “uncommitted” social contribution — a generous donation to the United Way? Law teaching is neither the abstract, hyper-rational ivory tower of the caricatured Academy, nor is it the nominalist, emotive, self indulgence of the Academy’s internal critics. To say that there is no one model of law teaching, then, does not mean that anything goes. It means, rather, that whatever goes must in fact go. Difference is a doing (a committed practice) and not just a saying. In this sense Huey Newton was right: if you are not part of the solution, you are part of the problem.

Fourth, law teaching commands its professors to see not only diversity in others, but also to recognize themselves in all their complexity. Those with only one sense of themselves, and hence only one agenda — be the agenda overtly political, like Law and Economics; be it socially transformative, like legal pluralism; be it cultural, like minoritarianism — usually avoid having to confront the conflicts, confusions and inconsistencies in their own lives. The commitment of law teaching does not demand that each one of us overtly embrace a metatheoretical stance which automatically reconciles each of these selves in a lexical hierarchy.

We owe it to ourselves and to our students to recognize these conflicts, and to attempt to work through their contradictions. Dismissing them as unworthy of attention is to dismiss ourselves as unworthy of regard. But, to require that we uniformly take one starting point, and impose this on all our other selves is both to assume that who we are is given as an anthropomorphic unit — i.e. we only have one body, therefore we must be one person — and to presume that we can have a meaningful critical position about ourselves which is external to us. The latter is a theological question that I, for one, am not competent to pursue.

I do think, however, that who I am in relation to others — as for example, parent, child, spouse, neighbour, friend, colleague — and who I am in relation to my genetic past -as for example, mostly white, mostly male, 42 years old, relatively healthy, tall, marfian and slender — and who I am in my social construction — as for example, legally trained, middle-class, protestant, english-speaking, and riven by self-doubt and guilt — is important to who I am as a law teacher. I am, emphatically, not just one of these things. This point was brought home to me in a humorous, but embarrassing way some years ago. At a conference on secured financing law in the early 1980s, a well-known Montreal practitioner, Yoine Goldstein, introduced me as follows: “It is a real pleasure for me to present Rod Macdonald, an old friend who I know quite well. I’ve known him as a child. I’ve known him as an adolescent. I’ve known him as an adult. Some times on the same day”.

Fifth, law teaching is both profoundly individualist and profoundly social. I concede that the image of the lonely professor working for years on a particular insight has an atavistic appeal. So too, that of the eccentric teacher who walks absent-mindedly to class, presents a brilliant synthetic stand-up lecture, and flees in horror at the prospect of having to deal with questions after class. But these are false images of individualism. Individualism in law teaching means seeking to be responsive to and to satisfy yourself: to have taught a class well; to have written, just once, something that appears to be insightful (if not true); to have believed, if only for a moment, that in a period of quiet reflection in one’s office one has come to a clearer insight about who one might be. It is in these senses that law teaching is profoundly individualistic.

Of course, the obvious complement to this aspect of law teaching is its social side. How one deals with one’s colleagues and students as people is fundamental. Brilliant scholars who are total creeps as people should cause us to rethink what we mean by brilliant scholars. Moreover, it is hard to conceive that any knowledge is individually generated. My own experience suggests that asking colleagues to read manuscripts and to discuss ideas about teaching, and serving on committees with them powerfully shapes what I know and how I know it. This is especially true of those with whom I disagree. A critical read by a theoretical opponent is worth at least as much as a sympathetic read by an intellectual ally. The community aspect of law teaching commands us to contribute to the work of others, and to treat their concerns almost on a par with our own.

But the social side of a law teaching career has a further extra-mural element. Universities exist in society. There is no greater abdication of responsibility than to claim that one is only concerned with the law as such, and not with how it affects people. Let me develop this idea negatively for a moment, before coming back to it in a more positive vein later in this letter. If one’s obligation to society is just instrumental — to perfect legal dogmatics, one’s social role is reduced to nothing other than offering succour and counsel to those who want information about a specific area of the law concerning which one professes expertise. And who are those who most often want such information? Law firms representing relatively pecunious clients. In my view, seeking the approval of, and financial pay-offs from, the practising profession is hardly a social aspect of law teaching with much to commend it.

Sixth, law teaching is a lesson in personal vulnerability. Whether, before one’s class, before one’s peers in published pieces, or before the public to whom one tries to be responsive, there can be no self-protective “petitions of authority or expertise”. When a speaker predicates the credentializing phrase “As a …” with an epithet which denotes expertise (along the lines: “as a family law scholar, …”) or with other claims to special attention (along the lines: “as an ex-Dean …”), rather than with a word which implies a self-critique of one’s partiality of perspective (along the lines: as a traditionalist …”), one should ignore the lesson being proffered.

Being personally vulnerable also means not hiding behind purple prose, obscure generalities, third person attribution or the sham of ideological neutrality. In the University, objectivity can mean nothing more than to rest one’s position on the “best” arguments one can find, knowing that these may ultimately prove illusory. But a qualified objectivity is not at the same time a license for inculcation. This is especially true in the classroom. Those who use the podium as a political platform forget the extent to which their own ideas are, themselves, a product of ideology. The University is ideological; the law faculty more so; there is no ideological critique of law which is also not internal to oneself.

Neither can we conceal indoctrination behind the mask of “objectivity” or even “not taking a position”, nor can we conceal indoctrination behind the mask of academic freedom. To be vulnerable means to invite challenges to one’s structure of belief, not to make either the naive realist claim that “that’s the way it is” of the obverse non-cognitivist claim that “X is the Y position on the question”. In other words, just because we strive for a “clean” truth doesn’t mean that we can’t or shouldn’t recognize and confront our own commitments. All critique is, in this sense, ad personam.

Vulnerability also means not taking yourself too seriously. There is an old story about the child who comes home from school one day and tells his parent: “School’s terrible. I’m not going to go tomorrow, and I’ve got two good reasons. First, all the students hate me; and second, all the teachers hate me”. To which the parent replies: ‘You are going to school today, and I’ve got two good reasons. First, you’re forty-two years old and second, you’re the Dean”.

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