Universities and Democratic Legitimacy (Part 1)
Free speech is vital to democracy. Alexander Meiklejohn offered a powerful defense of this idea in the mid-20th century, and since then it has gravitated towards centre stage in free speech discourse. The modern academic defenders of this view — people like Robert Post, Eric Heinze, and Ronald Dworkin — typically say that free speech isn’t just important for the health of a democracy, but that it’s also a necessary condition for democratic legitimacy. In a free society people are unafraid to broadcast their ethical convictions in public. There is a free press, an arts sector untouched by state censorship, and a cherished liberty for all to mock and criticise our leaders. The democratic government’s authority is legitimised partly through its upholding these freedoms.
But where does academic freedom fit into this picture? And what is the university’s role in ensuring the vitality and legitimacy of democratic society? By academic freedom I mean the special freedom for academics to teach, research, and write as they see fit, insulated from the threat of punishment for saying things that others think false, unjust, or offensive. Is this special sub-category of communicative liberty simply an extension of free speech, as far its democratic significance is concerned?
Robert Post, who I mentioned above, has done more than any scholar in the last generation to develop our understanding of the foundations of academic freedom. And his answer to this question about the relation between academic freedom and democracy is a surprising one. [1] The teaching and research work that define the scholarly vocation – the activities that the modern, disciplinary university was designed to facilitate – do not directly serve democratic legitimacy. They serve an ideal that complements democratic legitimacy, but which is importantly distinct from it. Academic teaching and research further our democratic competence. They provide a crucial contribution to society’s collective capacity to make intelligent, well-informed judgements about the matters of public concern which government must address.
If the people are to rule themselves capably, then they need to not be ignoramuses or chauvinists. They need to remember their history. They need to understand science and technology, and continue expanding its horizons. They need their judgement to be conditioned by a philosophical sense of the complexity in all things, and by a social scientific curiosity about how people’s lives and customs really work. And they need educators in academically-grounded professional vocations – like medicine, law, engineering, and economics – to have a scholarly sense of rigour concerning their spheres of expertise. Of course no-one among us needs to try realise all of these ideals under his or her own steam. But if we as a people are to rule ourselves well, then collectively we do need to realise all of them. The job of universities, and the teaching and research they deliver, is to further democratic competence, thus characterised. And principles of academic freedom identify the protections that should be given to universities and individual academics to help them achieve this.
I think this is the best account of the justificatory foundations of academic freedom. But it isn’t obvious how we square it with the view – which has been mainstream progressive opinion for half a century – that universities should also be bastions of free speech. Many people believe that the university is more than the institutionalised knowledge-engine envisioned by the German and American architects of modern higher education. The university isn’t exclusively about scholarly research and education. It is also a site for rowdier, messier, and more wide-open discursive activities. It’s like a miniaturised version of the public sphere at large; the place where we stage an ongoing kind of democratic happening, involving (among other things) political activism, popular debate, and creative experimentation.
If that view is correct, then it would be a mistake to think of universities as merely serving the ideal of democratic competence. They also serve the ideal of democratic legitimation. We can distinguish – as do Howard Gillman and Erwin Chemerinsky [2] – two different communicative zones in universities, corresponding to the service of these complementary ideals. Teaching and research take place in the academic zone; they are protected by academic freedom, and they further society’s democratic competence. But then there is also a free speech zone – where extra-curricular debates and student society events happen, where artists, preachers, anarchist drop-outs, and militant activists congregate and argue – and the communication that takes place there serves the complementary purpose of democratic legitimation.
In a democratic society, then, according to this view, the university’s mission is to play host to the important communicative activities that transpire in these two complementary discursive zones. This is an appealing picture. But in part 2 of this post, on Wednesday, I’ll argue that we should reject it.
* * * * *
[1] See Robert C. Post (2009), Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (New Haven: Yale University Press, 2012); see also Matthew W. Finkin and Robert C. Post (2009), For the Common Good: Principles of American Academic Freedom (New Haven: Yale University Press).
[2] Erwin Chemerinsky and Howard Gillman (2017), Free Speech on Campus (New Haven: Yale University Press).
