Beyond arrogance and subordination to the "system": On public intellectual, power, morality, and law

Law & Society Review, 2002 by Skapska, Grazyna

An appeal to public intellectual should have special resonance in Eastern and in Central Europe-a part of the world where former dissident writers and intellectuals have become presidents, ministers, and chairs of parliaments, and lawyers once persecuted for opposition to regimes have become chairs of constitutional courts and tribunals.1 As a matter of fact, Eastern and Central Europe have produced many great intellectuals, as evidenced by a quick check of the birthplaces of Nobel Prize winners. It is also a place where a distinctive social class, the intelligentsia, was considered to have a particular mission to govern the souls and spirits of nations in the name of Freedom and Justice. Where better then to debate the role of intellectuals in answering the big questions concerning democracy and freedom, and indeed in moving the world in that direction!

History demands that we debate the role and commitment of public intellectuals more critically. Unfortunately, our skepticism is fed by our experiences, which initially consist of great hopes for the public engagement and political commitment of intellectuals, followed by a disenchantment with them, sometimes leading to a backlash of blatant populism. There have been examples, and unfortunately not rare examples, of even the greatest intellectuals engaging in political opportunism as fellow travelers or as bystanders, justifying their stance as "the necessary costs of progress," or even worse, engaging in support of totalitarian regimes. All of these roles of the intellectual-the publicly engaged, the political opportunist, the fellow traveler, and the bystander-have had pivotal impacts on the tasks performed in lawmaking and law application. They have had a direct effect on people's lives. Thus, we experienced the public intellectual as a collaborator of criminal regimes in the name of progress, and some lawyers, who in the name of modernity have not only opposed but, on the contrary, have also supported the transformation of law into a cruel implementation of progress, at great costs to those who were most vulnerable.2

With regard to these various disappointments, one can only ask oneself: what went wrong? Why is it that public engagement does not prevent populistic backlash? When intellectuals support totalitarian regimes, becoming political opportunists, the question becomes even more pertinent. We ask why intellectuals, who should know better, could be blind to atrocities, even to genocide, not because they were lacking in civil courage, but in the very name of progress.

On the other hand, Eastern and Central Europe-especially Central Europe-was a place where another ideal of the intellectuals' role in society was cultivated. This ideal was incorporated in the German Bildungsbuergertum model. Initially, it expressed a deep contempt toward politics as a "dirty affair" and was based on the postulate that an intellectual was a special being concerned with higher issues of culture and science, above the entangled medley of concessions and compromises of which politics is composed, and most certainly not involved in the struggle for power. Such an attitude inhibits an engagement in policymaking, an activity not identical with politics, but nevertheless, overlapping. This attitude was answered with the contempt of politicians as directly expressed by Bismarck in his famous exclamation: Hunderttausend Professoren, Vaterland, Du bist verloren! (A hundred thousand professors-"Fatherland"-you are lost!) It is certainly clear what this prominent politician thought about the practical value of theoretical knowledge.

This very brief outline of the place of an intellectual, but especially of a lawyer, is based on the regional experiences of Central and Eastern Europe, where there has been a temptation to fulfill a vision of progress without regard to human costs or without suggesting that there are systemic forces, although of doubtful ontology, that work on society without the aid of human agents.

In the brief remainder of my comments, I will try to reflect on the temptation public intellectuals face if they believe too strongly in an unproblematic concept of progress as an ideal of social justice, in contrast to pitfalls they encounter when they believe too strongly in the distinctive place of law as a systemic force, separated from morality and not connected to political power. Maybe it would help us understand the aforementioned backlash, and even the deep disappointment with public intellectuals after the collapse of totalitarian regimes. I will end this short article by commenting on the important advice inherent in Kitty Calavita's Presidential Address to the Law and Society Association and on some ideas expressed by public intellectuals in East-Central Europe.

We must debate whether there is arrogance in the temptation to make history work according to intellectuals' vision of progress, notwithstanding the possible suffering of people.

One can find examples of intellectual arrogance in the name of progress across time and space, and across disciplines. In medicine, one result was a slight modification or concealment of the minor results of experiments in order to create a desired medication to help those suffering during pregnancy. Unfortunately, the results were physically deformed children. In history, facts have been falsified or reinterpreted in order to prove the development of progressive forces. In social sciences, it leads to the support of one in-vogue idea after another in accord with the dominant paradigm, e.g., Marxism against economic liberalism, or of efficient rationalism against other approaches.