Brexit, the limits of law and legal scholarship

Brexit has created a very troubling and destabilising environment for legal researchers in the UK and beyond. This is particularly true for those directly concerned with EU and international law, as well as constitutional and public law, but it is quickly expanding to all other areas of legal scholarship, such as human rights law or jurisprudence. Brexit has created shock waves that will continue to hit legal academia at least for the coming 5 to 10 years, and not only in terms of its focus as a discipline.

This not only jeopardises the development of previous research plans and the completion of on-going research projects, but also exposes the limits of law and legal scholarship in a way that I considered unimaginable before 23 June 2016. But then, most of what Brexit has brought had never crossed my mind or seemed outlandish. The following are just a few thoughts of what really worries me at the moment, not only as an EU lawyer, but more generally as a legal scholar. Of course, I am also an EU citizen living in the UK, which adds one layer of implications for me personally. However, I hope I can disentangle both dimensions.

Hard Brexit as a coup against the rule of law

We have been waiting all summer for the dust of the referendum to settle and to see what the UK Government and the UK Parliament made of the result and how they formulated their strategy going forward. What is starting to emerge, particularly from the Government's approach and its toying with the idea of a hard Brexit, is worryingly taking the shape of a coup against the rule of law. It is also starting to encapsulate xenophobic and racist elements of the Brexit campaign that are now presented as reasonable policy choices within mainstream movements, rather than being denounced as extreme and contrary to the very basic values of British society--unless they are now made to represent what they seemed to stand against until very recently.

There is an absolute disregard for the acquired rights of millions of people and the rhetoric that no basic protection is guaranteed and all individual and collective rights are on the table and prone to be used as bargaining chips simply goes against basic principles of legal certainty, prohibition of retroactive effects of rules that significantly impinge on individual rights, good faith and sincere cooperation duties under EU and international law. And the troubling part is that the mechanisms that would ordinarily protect those rights and these principles--mainly, cases brought before the Court of Justice of the European Union and the European Court of Human Rights--would not only be too slow off the Brexit mark, but also unlikely to provide effective protection against the actions of what is emerging as a bully State (or at least a bully Government) willing to disregard any legal consequences of its ill-thought policies.

Some of this is not strictly speaking a Brexit byproduct, but a result of the added or twin process of departure from European human rights instruments and standards. It is also compounded by the complexities of UK (unwritten) constitutional law and the absence of a domestic constitutional court strictly speaking, which starts to paint a scenario where the UK Government seems to believe that it can shape the future system of protection (or less) of human rights in the UK without any constraint or respect for the status quo. For a country that promoted human rights internationally in the past, this is such a return to the cave that it is hard to believe that this is actually happening. And the UK highest courts seem to be the only ones (potentially) able to bring a torch to the cave and force the Government out of it. Whether they will do it, or at least pass the issue on to Parliament, is everybody's guess.

"The first thing we do, let's kill all the lawyers" ~ William Shakespeare's Henry VI. 

As lawyers and legal scholars, we are now under the double attack and accusation of being both experts and agitators of the public space. What I would have thought were two of the most precious treasures legal academia and legal practice can protect (knowledge and independence of action) seem to have turned against us. We had to endure the Lord Chancellor and Secretary of State for Justice spit in our faces that “people in this country have had enough of experts”. The Prime Minister now also wants to protect the British Army (and Government, ultimately) from "activist left wing human rights lawyers"--but, not necessarily because of their ideology, but because they "harangue and harass" Britain's armed forces.

It is obvious that having a dissenting voice (particularly if it is informed and shouts evidence-based arguments), or contributing to the proper functioning of the system of checks and balances that a State based on the rule of law depends upon, now make you a public enemy. This really worries me because legal academia (and legal practice, but maybe to a lesser extent) will now be pushed towards a dangerous path to potentially becoming a place of fear and suppression of ideas and arguments that run contrary to what is now accepted as the official discourse or the policy of the day. We need to react against this and do it quickly, firmly and with all our intellectual might. If we fail to do this, there should be no need to kill all the lawyers, because we will (or should have) committed intellectual suicide already.

Brexit as Moby Dick

The final aspect that really worries me is that we will now probably be obsessed with Brexit. And to some extent we will have to if we are to discharge our moral and social duty of resisting the coup against the rule of law and against legal academia and practice as their stewards--against legal scholars and jurists as a collective that must contribute to keeping the Government in check under the rule of law. But this is very likely to also become our white whale, a permanent chase in a run with a moving finish line, something that is so much bigger than us and our capacities that eventually exhausts us and makes us drown (or feel we are drowning).

This obsession will also impoverish our legal scholarship beyond Brexit and drain our energy and absorb our time in ways that will make us stop pushing the boundaries of knowledge we were exploring before 23 June 2016. This is, in itself, one of the Brexit tragedies. By creating this black hole of legal problems and this immense pressure on the structures for the creation and dissemination of legal knowledge, Brexit has already put a heavy burden on law and legal scholarship. Like the value of the currency, which has been on free fall and already moved back the equivalent of almost the entire span of my lifetime, this will take very many years to recover, and I worry that it may never reach the level it had before the Great Repeal Bill was announced.

A final thought

I wish I got all of this wrong. If I have, then ignore it. Treat it as the dark thoughts of someone too personally affected by Brexit. But if I haven't, then please see this as a call for action. Join the conversation, so we can collectively think about ways of getting out of this.

Pervasive Legal Instrumentalism and Scholarly Herd Behaviour in Law: A Short Reflection on van Gestel & Micklitz (2014)

In their interesting paper "Why Methods Matter in European Legal Scholarship" (2014) European Law Journal 20(3): 292-316, which I read following Steven Vaughan's recommendation on twitter (@lawvaughan), Rob van Gestel and Hans-Wolfgang Micklitz write a compelling criticism against the instrumentalisation of law and legal research (ie the excessively policy-driven approach to legal research that mixes up normative and empirical questions), not least because:
"[it] decreases the attention for methodology, for theory building, and for keeping enough professional distance to one’s object of research. This threatens to result in a creeping process of herd behaviour, in copy pasting the methodology of judicial lawmaking to legal scholarship and in a lack of transparency and methodological justification in scholarly legal publications".
 
Indeed, the part of their paper that I find really interesting (and brave) is the discussion on the risk of herd behaviour in legal research, where they warn about the risks of uncritically focussing legal research on 'hot topics' and the items in the agenda of policymakers/regulators (such as the European Commission) or financing/sponsoring bodies, instead of pursuing an independent ranking of relevant topics with intrinsic research/doctrinal value (pp. 305-307)--and which I remain convinced definitely supports their argument in favour of raising the methodological awareness in European doctrinal legal research.
 
In short, they submit that "the best response to growing heterogeneity of legal sources should be matched with a strengthening of theoretical and methodological components, where possible drawn from the common European heritage in legal theory and spurred by transnational scholarly legal communities" (p. 312). Moreover, they formulate some broad implications of their proposal and launch some open questions, which they intend to focus future debates about (the specifics of legal methods), particularly in view of the Europeanisation of legal education (see some related comments here).
 
I agree with them in that methodological discussions about legal research are becoming of paramount importance and that it is fundamental to base any piece of legal research on a methodology that is not limited to the very narrow confines of (classical) black-letter legal analysis. This is particularly important if one is to embark into any sort of normative recommendation, which requires a benchmark of underlying values and evidence that law cannot provide.
 
Personally, I find the interaction between law and economics particularly important and I have some specific views as to what sort of methodology should be used in the study of European economic law [see A Sánchez Graells, "A Short Note on Methodology: An Eclectic and Heuristic Multi-Disciplinary and Functional Approach to EU Law" (2011)]. Ultimately, I praise and share the words of O Wendell Holmes in "The Path of the Law" (1897) 10 Harvard Law Review 457:
"I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics".
This is not to say that economics should drive, control or even dictate the objectives of legal research, nor that efficiency must necessarily be accepted as the ultimate normative value. However, legal research that disregards economic theory and its insights and (willingly or inadvertently) runs against them will have a very limited (if any) value. Moreover, the same is equally applicable to other social sciences and, as van Gestel & Micklitz stress
"this should not imply that we want to turn law students [or law scholars, for that matter] into amateur social or political scientists or economists, but they should at least be able to understand (some of) the language and methods that other (social) sciences apply in order to learn more about the value, validity and reliability of non-doctrinal research methods and techniques" (p. 315).

In any case, beyond the specifics of the methodology employed and the field of (other) science considered more relevant in order to achieve informed and sound outcomes-- which surely needs to be tailored to the specific research question that one attempts to answer--I could not stress enough the importance of having A sound  methodology when one undertakes legal research. In that regard, I fully share and welcome van Gestel & Micklitz's call for further discussion. As they say in their paper, to be continued...