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ICON Volume 18, Issue 3: Editorial

Guest Editorial: Systemic racism and creative emotion—back to basics; Peer review—Institutional hypocrisy and author ambivalence; A modest proposal on zoom teaching; In this issue

We invited Iyiola Solanke, Professor of EU Law and Social Justice at the University of Leeds, United Kingdom, to write a Guest Editorial.

Systemic racism and creative emotion—back to basics

There are currently two viruses causing death and destroying lives around the world: one is coronavirus, the other is racism. There are many similarities: neither can be seen with the naked eye, yet victims recognize how they sound and feel—they experience the results of the infection; both are highly contagious and can pass from one person to another rapidly, often without recipients being aware that they have been infected; and both can maim and kill: think of George Floyd in Minnesota, USA, or Mikey Powell in the Midlands, United Kingdom, both killed through asphyxiation in police custody. Or Oury Jalloh, who mysteriously burnt to death in a German police cell. Like COVID-19, the virus of racism does not respect borders, and both are deadly.

The purpose of this Editorial is threefold: first, to consider racism in the 21st century in the context of legal approaches of the 20th century; second, to consider why racism endures despite over 50 years of this law; and third, to suggest the role of creative emotion in effectively tackling racism.

 The international origins of anti-racial discrimination law

A legal historical review of anti-racial discrimination law must begin with the establishment of the principle in international law and the people tasked with this objective. The creation of law in this area was a key part of the renewal of political morality in the post-World War II period and creation of an international society based upon democracy. An important articulation of anti-discrimination as a democratic principle in the post-war period was set out in the United Nations Declaration of Human Rights (UNHDR).[1] The Declaration was steered through the Commission of Human Rights (CHR) by John Peters Humphrey, a professor of law at McGill University in Canada and Director of the Human Rights Division of the United Nations (UN).

Humphrey regularly kept a diary of his work at the UN, recording his insights as well as his frustrations.[2] He relates the two years of negotiation of every provision of the Declaration with diplomats from countries holding diverse and often conflicting social visions and religious convictions. For example, he noted that the “two special interests that have tried hardest to influence the Declaration are the Catholic Church and the Communist Party—the former with considerably more success than the latter!’[3] His diary also notes his agreement with the 20th-century French philosopher, Henri Bergson,on the importance of “creative emotion” to his work.[4]

Bergson identified two sources of public morality:  a first source of public morality exists in the collection of prevailing norms, rules and practices dictated by society; a second source goes beyond this and is something higher than society, which he described as “creative emotion.” According to Bergson, a new morality could not emerge from the first source because society could not see beyond itself. Creative emotion was therefore essential for genuine moral regeneration:

The reason, of course, why moral rules englobing the whole of humanity cannot emanate from the first source is that the instrument of society when it forges moral rules is habit. Even if it is admitted, therefore, that a new universal society is emerging or has emerged that society has not yet had the time by the instrumentality of habit to forge the moral rules necessary for its maintenance. It follows therefore that we must have recourse to creative emotion.[5]

However, creative emotion could not override the national and religious tensions in political reality and political economy, which all impacted the final Declaration. Nonetheless, Humphrey was “firmly convinced” that the Declaration would “prove to be a tremendously important document.”[6] A year after its adoption, he wrote:

My own belief is that, while the declaration is not now legally binding on States, it could become binding; and our job is to encourage that development. It is a political document of the very highest importance and represents a preliminary or perhaps even first stage in the law making process. If it is not yet legislative it at least manifests a legal conviction[7] […] the Declaration provides a standard by which the conduct of governments can be measured; and this even although the declaration may not be legally binding on governments. Indeed, this political or moral function of the Declaration would probably be its most important function even though it were also possible to invoke it before an international tribunal.[8]

History has proved him correct—while the reduced commitment to international governance and multilateralism has left the United Nations open to attack and confrontation, its instruments retain moral and political authority, as can be seen with the widespread recognition and acceptance of its Structural Development Goals (SDGs) by governments and NGOs around the world.

Humphrey was a White non-Jewish man with limited experience of prejudice. This is evident from his diaries—despite his intense work on the Declaration, it was only when dealing with an allegation of anti-Semitism in the UN that he linked discrimination to prejudice. He wrote in his diary that the case had “forced me to think through the whole problem of discrimination based on prejudice.”[9] His privileged position also explains his attitude towards the work of the Sub-Commission on Discrimination, which prepared the groundwork for the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Diary entries show that he was impatient with it and dismissive of its work:

The time and effort devoted to the Sub-Commission is largely a waste … Individually some of the members are outstanding – Masani, Spanien, Miss Monroe etc.—but insofar as this work is concerned they can be classified into defeatists (of the type of Nisot) and naïve ‘do-gooders’. It would be better for the UN if the Sub-Commission were abolished and the specific question referred to the Ad Hoc committees of responsible experts.[10]

Time has proved Humphrey wrong in his estimation of the work of the Sub-Commission: the ICERD that it created played a direct role in the evolution of anti-discrimination law in Britain in the 1960s and an indirect role in the entrenchment of anti-racial discrimination law in the European Union (EU) in the 1990s and throughout the EU member states at the start of the 21st century.

Systemic racism in the 20th century

The Eurocentric and heterosexist approach to the study of history ensures that centuries of systemic discrimination remain hidden. Mis-education is rife. For example, very few Britons are taught about Britain’s role in slavery or its high success as a colonial power. In Africa, for example, the British Empire included Nigeria, Ghana, Sierra Leone, Uganda, Kenya, Tanzania, Gambia, South Africa, Lesotho, Botswana, Swaziland, Malawi, Zambia and Zimbabwe. In the Caribbean, Jamaica, Trinidad and Tobago, Barbados, Antigua, Barbuda, Guyana, and Belize.

While still a colonial power, Britain had signed up to the ideals encompassed in the United Nations Declaration on Human Rights in December 1948. Article 2 of the Declaration mentioned race:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without any distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

The extent to which Britain breached this Article in the governance of its colonies was  clearly illustrated by a study carried out in 1948, when the Secretary of State for the Colonies requested all colonial governments to carry out a survey of the extent to which “legislation in their territories discriminated between different races, more especially between Europeans and non-Europeans.” The reason for the request was “the growing public interest in the question of discrimination in Colonial territories, and in particular the fact that racial discrimination was one of the points specifically included for study by the United Nations Commission on Human Rights, arising out of Article 1(3) and 68 of the United Nations Charter.”[11]

The results indicated that principles governing all British Colonial Administrators were incompatible with the UN Declaration. Overt systemic racism was rife: there was, for example, the explicit bar on African Justices of the Peace, or the differential provisions for sentencing in Uganda under the Criminal Procedure Code of 1950, which allowed corporal punishment without trial for African prisoners but mandated a trial for non-African prisoners. Racially restrictive covenants barring Africans and Asians from residence in the most fertile areas were common as were restrictions on movement: until 1948, all Africans over the age of sixteen were obliged to carry an identity card (a “Kipande”) with name, details, fingerprints, employer’s name and wage rate. Much like deserting slaves, a “runaway employee” could be arrested and returned to his employer.

The entrenchment of systemic racism in the “Mother Country” was also evident at this time, although it was covert. From as early as 1946, colonial citizens settling in the UK were subject to discrimination in employment by the tolerance of racist practices by the government labour exchanges: any employer who did not want to take on a worker from Africa, Asia or the Caribbean needed only to say so, and this would be respected. Qualified workers from these groups were not told about job vacancies if a discriminatory condition was attached to it.  Such practices not only breached the UN Declaration, but also the ICERD, which Britain signed in 1964, shortly before creating its first Race Relations Act in 1965 (although the practice of discriminatory vacancies remained lawful until adoption of the Race Relations Act 1968, which covered employment).

Back to basics—the search for creative emotion

Covert systemic racism has continued, in the UK, the USA and elsewhere, despite over fifty years of international and national laws to combat racial discrimination. While systems such as apartheid, slavery and colonialism no longer exist, the racialized relationships of power established by these systems remain entrenched around the world, underpinned by mis-education, economic under-development, war, poverty and restrictions on migration. The most vivid manifestation of enduring covert systemic racism is the disproportionate impact of COVID-19 on Black and minority ethnic (BME) communities, both in the UK and the USA. In the UK, official data confirms that that BME communities have a disproportionately high rate of incidence[12] and death[13] from COVID-19. It is clear that COVID 19 targets the weaker parts of society in the same way that it exploits the weaker parts of the body.

COVID-19 is a symptom rather than the cause of enduring systemic racism—the disease and the lockdown have only exacerbated and magnified that which was already present in society. One reason for this endurance may be the mode of enforcement of anti-racial discrimination law. As set out in the ICERD, protection from racial discrimination relies overwhelmingly on individual activation—an individual claimant must have the personality and resources to bring litigation against an individual organization. Tribunal data shows that success in claims of race discrimination is rare, despite the rates of racism. There is also the problem that even in the rare event that a claimant wins, they may lose their job and find it hard to get another.

The question must therefore be asked: Where do we go from here? I suggest we need to return to Bergson’s idea of creative emotion. The challenge is one of moral progress—but how to create it, or in Bergson’s formulation, whither the creative emotion for a genuine moral revolution in race relations? The multicultural and multi-generational participation in the Black Lives Matter demonstrations around the world, provoked by the unlawful killings of unarmed black men at the hands—or knee—of the police suggest that current moral habits have limited utility for the development of new rules securing respect for the whole of humanity. We need no miner’s canary:[14] Amy Cooper epitomizes the toxicity in public morality.

Various movements offer this creative emotion. Black Lives Matter is itself a source—harnessing the solidarity shown across the United States and around the world is crucial to ensure that when the drama has subsided and the media show has moved on, black lives still continue to matter. The Rhodes Must Fall and Decolonization movements also offer creative emotion—theirs is not just a battle over public statues and names but the absence of black children and scholars from the curriculum and educational institutions: there are more black men in prison than at university. Just as academic solidarity is needed in gender studies, so is it needed in organizations and disciplines that centralize the interests of people of color, such as African studies and critical race studies.

Treating racism as a virus is one example of creative emotion that can revolutionize the legal approach to racial discrimination. A strategy adopted by public health professionals to defeat a virus is to identify and break the “chain of infection.” There are six key elements in the chain of infection, beginning with identification of the “infectious agent” —the thing that causes infection and potential death. In the case of COVID-19, this is a virus. The second element is the reservoir, or the place where the infectious agent grows and develops—for COVID-19, people are the reservoir. Thirdly it is important to identify the “portal of exit,” or the way in which the infectious agent leaves the reservoir—for COVID-19, this has been identified as bodily secretions including mucus and sputum. Fourthly, the mode of transmission, or how the agent spreads, must be known—for COVID-19, this is through airborne droplets. The fifth element is the “portal of entry,” or the way in which the infectious agent enters a host—as we know, COVID-19 enters through the respiratory tract. Finally, the chain of infection identifies the “susceptible host”, the traits that individuals have which make them susceptible to infection and illness—in the case of COVID-19, this includes age, gender and possibly race and ethnicity. South Asian men have been identified as having the highest rates of infection and death. The cruel irony of my analogy is that as a recent Public Health England Report clearly shows, those who suffer the most from COVID-19 are also key targets of discrimination[15]—the medical virus maps onto and magnifies the virus of racism.

What then would these elements be in relation to racial discrimination? The infectious agent could be both words and images, both those that are included as well as those that are omitted. The reservoir, the place where the virus grows, could include locations such as educational curricula or television scheduling that contains little or no contribution from Black and minority ethnic experts or scholars. How does the infectious agent leave the reservoir? The portal of exit might be practices and policies, for example those that create racially homogenous institutions or degree awarding gaps. The modes of transmission, or the way in which racism spreads, are likely to be direct and indirect: from person to person as well as via social and traditional media. The portal of entry is likely to be multiple, verbal, visual and aural—for example, images that present black men as criminals rather than judges, entrepreneurs or astronauts. Finally, in thinking about a susceptible host in relation to racism, we could consider whether the lack of organizational leadership and anti-racist policies increases the likelihood of susceptibility to racist ideas.

Ultimately, in public health, success depends upon a very high level of coordination and cooperation with national authorities, between the public and private sectors, teaching hospitals, universities and volunteers. As is clear, tackling COVID-19 is everybody’s business—those who suffer are not left to overcome the virus by themselves—and the same applies to discrimination. Infection control is just one form of action: it is equally vital to take a broader set of actions to halt the spread of the disease. Interventions to reduce or remove risks in institutions and the environment are the norm rather than the exception—the public or social aspects of the epidemic must be addressed in order to break the chain of infection.  The faster, more coordinated and more committed the reaction to a virus, the more effective it is.  Interventions are also joined up for maximum impact. Imagine if we used this approach to tackle discrimination: if discrimination is viewed as a virus, a public health style intervention focusing on breaking the chain of infection could help us to more effectively tackle and perhaps even eradicate it. Treating racism as a virus is creative emotion in action.

Peer review—Institutional hypocrisy and author ambivalence

You will forgive my “deformation professionnelle” by returning again and again to the subject of peer reviewing.

Most law faculties in most jurisdictions have been moving toward the use of various modes of quantitative indicators in the process of appointment and promotion of their faculty. Even the United States, which until recently has been a blessed exception in this regard, is now taking first steps down that slope—prompted by the decision of the US News and World to include faculty “productivity” in its rankings.

Make no mistake, there is a place for such indicators in the overall assessment of a legal scholar. In its extreme form—which is hardly exceptional—one counts the number of conferences, the role played in those conferences, the number of papers given, articles written, citations, and the like. And then “points are given”. So many points are needed for this, and so many points for that. I have seen the European Research Council and the Commission of the European Union under its various (laudable) research support programmes (Horizon 2020 and its antecedents and progeny) follow the same points method.

The rationale is not without merit: an attempt to move away from a combination of the odious “old boy network” where appointments were determined according to who you knew and who supported you (my Baron is more powerful than your Baron) and away from subjective judgments of quality towards some objective methodology in the interest of fairness and academic excellence.  Hence a “market approach.” Let quality be decided not by our judgment but the judgment indicated by the “quality” of the journal in which you publish, by the number of citations, etc. Coupled with the attempt at qualitative objectivity—the desire for which is understandable and serious—there has been a shift to a ruinous attention to quantity of publications (publication being the Alpha and Omega of academic excellence, as if teaching or all aspects of academic citizenship, such as committee work, peer reviewing, tenure review, etc. count for nothing, or near nothing).

When deans review the end of year report on the “productivity” of their faculty, they smile at a faculty member who reports, say, six publications in the last year and frown at the member who reports only, say, one. They smile at the faculty member who reports attendance at, say, half a dozen conferences and a few workshops, especially if they served as moderator/chair, commentator, President of a session or even a Keynote (Douze Points!) A festival of points ensues. And the poor faculty member who only attended one conference or perhaps none will hang his or her head in shame with their solitary point—and with potentially very serious career consequences. And yet that solitary article may have been truly brilliant and of an altogether higher quality than the conference, edited book ephemera. Here the “market” that is in play is not the internal academic market, but the real market of external evaluation by those who control the purse, and they, too, want some “objective” indicators, so they count. It would not surprise me if eventually the “rankings” become not a once a year affair but, like in tennis or snooker and now even in soccer, there will be a running ranking where these quantitative indicators are aggregated in real time and we will learn that faculty x moved last month from 13 to 11.

But market failure is endemic and anomalies abound—here are but a couple of examples.  A scholar whose article is abundantly cited negatively for, say, poor methodology, will score higher than one whose paper is cited scarcely but eulogistically. A scholar who, as mentioned above, eschews the conference circuit (and circus) and spends, say, two years on writing a truly fundamental article will score lower than his or her colleague who attends endless conferences, delivers endless ephemeral papers that then get published. And books are another area of footnote market failure. Many of the “tracking agencies” do not reference footnotes citing books, so a serious scholarly book might produce fewer “points” than its value merits.

I find the reliance on footnotes particularly destructive. My long experience as an editor of two learned journals has taught me that footnote counts are tremendously fickle and unreliable. Certain subjects by their nature attract more attention than others, creating a disturbing incentive when young scholars determine their research agenda. Older, more established scholars attract more footnotes, even if they are just selling the same old goods, whereas young unknown scholars will be overlooked in the footnote game.

But this is well-covered terrain, even in these pages and no more need be said.

As noted, in an attempt to insert a qualitative dimension in the quantitative counting, publications are weighted as more significant—and in some jurisdictions this is a sine qua non for being counted at all—if published in a peer-reviewed journal, and among these most weight is given to journals that “rank” in the “top tier” of some journal ranking. No sour grapes here—I•CON usually finds itself in such top tiers.

In effect, faculties are, at least in some important measure, outsourcing the quality control of the work of their scholars to peer-reviewed journals. (I suppose I am biased since in the process of appointment and promotion in my own faculty almost exclusive attention is given to a careful reading of the work by the faculty itself and the external indicators play a minor role if at all. I fear this is about to change.)

Be this as it may, we, editors of peer-reviewed journals, understand the ways of the world as it is and take this responsibility with utmost seriousness, not only to guarantee our readers that only articles of high or very high quality are published but also because we are aware of our responsibility in the appointment/promotion cycle.

We select peer reviewers with care and after discussion, based on our knowledge of their work, their standing in the field, their proximity to the subject of the article, and so on. We believe that being selected as a peer reviewer by a quality journal is no less a mark of recognition and distinction than, say, delivering a paper in many a conference, to give but one example. A good peer review requires application, careful reading, exercise of judgment and, I fear, quite a bit of work.

I do not recall a single instance of an article being published in I•CON without some revision advised or required. There is nothing so good that cannot be made better. A good peer review can run to several pages, providing a suggested roadmap for the revision of an article. It often involves several rounds among peer reviewer, editors and author. On most occasions we receive warm thanks from the author when the process is concluded—recognizing that their good article was made even better as a result of the process.

Peer reviewing is not only in some ways a measure of recognition of quality and distinction of the peer reviewer, but also an act of high academic citizenship, which, as noted, does not only serve the author and the journal but serves the ecosystem of academic appointments and promotion.

This is where the institutional hypocrisy comes into play. It is a service which, in an ironic paradox, receives no institutional recognition in the processes of appointment and promotion. Faculties insist on publication in peer-reviewed journals. But the real “heroes” in this process are not the journals, but the peer reviewers. I have heard more than once from colleagues who are reticent to undertake peer reviewing because it involves a lot of work (it does, when done well—take a look at a recent Editorial “Best Practice—Writing a Peer-Review Report”, https://doi.org/10.1093/icon/moz053) and in a world which counts (and gives points) there are no points (real, or so to speak) for peer reviewing.

To me the point, excuse the pun, is obvious. I think that peer reviewing should become a standard feature in a candidate’s file. And if faculties rely on peer reviewing by the top-ranked journals, they should find a way to give incentives to an institution on which they rely: peer reviewing should be acknowledged and rewarded like other facets of academic achievement. As part of the institutional culture, peer reviewing should be viewed as an indispensable norm of good academic citizenship.  At I•CON and EJIL we are considering issuing some form of “certificate” to our peer reviewers in the hope that this will become a common practice and we will encourage scholars to submit them in their application/promotion files as well as in annual “productivity” reports.

What then of author ambivalence? The practice of peer reviewing differs from jurisdiction to jurisdiction, so occasionally there are crossed wires that result from cultural differences. These are relatively easy to sort out. For the most part, when authors submit an article to a peer-reviewed journal they understand the rules of the game. As an empirical matter, the frustration and ambivalence are rooted in two principal factors:

•           The time element: peer review can add anywhere from three to six months to the processing of an article. And then, to add “insult to injury,” the revised and approved article must take its place in the publication pipeline, adding several more months waiting time. The opportunity cost is particularly high if the result of the peer review is a rejection.

•           Substantive disagreement and frustration with the content of the peer review: s/he simply did not understand or evaluate correctly my article.

We are acutely aware of these issues and have taken several measures to mitigate the frustration. As regards the temporal element, we have adopted two policy changes at the beginning and the end of the process. We no longer require exclusivity in the initial submission of an article to EJIL. We guarantee, and in almost all cases honor this guarantee, to give an initial screening decision—whether or not the article will go to peer review—within six weeks of submission. If we decide not to send an article to peer review (and there can be many “curatorial” as well as quality reasons for this, such as “we have something on this topic already in the pipeline”), the author will not have wasted precious time since the article will be making its way through the process of any other journal to which it was sent. If we decide to peer review, the author is informed and at that point we do still insist on exclusivity. So much editorial work goes into the peer-review process that it would be unacceptable to do all that and then find that an author just skipped boat.

We are now moving to a system of pre-publication, so articles that are accepted following the peer-review process will appear online ahead of the formal issue in which they will eventually be published. Additionally, with an eye to the appointment/promotion process, we are always happy to send authors a formal letter affirming acceptance of their article for publication. This takes care of that problem in almost all cases. 

Both these measures seriously attenuate the time factor frustration, but we are not willing to cut corners in the actual process of peer review. And, as mentioned above, most authors at the end of the process express their gratitude.

Peer reviewers are not infallible, nor are Editors in Chief. When the revisions required of an article are very substantial, we typically invite the author to submit their reactions and indicate the changes they plan to introduce to the article in the light of the peer reviews. Authors regularly object to this or that point in the peer review and we regularly accept such reservations. Oftentimes we will point out to authors that if a serious peer reviewer failed to understand a point, it might at least be worth considering whether the writing can be clearer on this or that point so as to avoid the same misunderstanding by eventual readers of the piece. This dialogical approach ensures that even misunderstandings can turn out to be productive. But there is no getting away from the fact that peer reviewing does add at a minimum several months to the publication process.

It is a fact of life that most articles winding their way through the peer-review process exist in one form or another online as, say, an SSRN paper. We have become relaxed about this, provided the final version accepted for publication follows our copyright rules—which I believe are among the most generous in the field.

However, beyond these pragmatic considerations, I attribute author ambivalence towards peer review to a common misconception—that peer review is primarily about judging: good or bad, publishable or not.

In fact, statistically, for the most part, submissions that pass screening and go to peer review result in required revisions rather than outright rejection. We remind our peer reviewers again and again that apart from their judgment—accept or not—they should provide a detailed roadmap to help the author attend to any criticism they have. In effect, the greatest service that peer reviewers provide is not the judgment, but the selfless help to colleagues in order to make their writing the best it can be before publication. I think this point is not always sufficiently appreciated and peer reviewing is regarded as a necessary evil imposed by the powers that be for the purpose of career advancement. That is a pity.

Finally, even when the peer review results in rejection, we attempt to provide the author with a reasoned report, which at a minimum may induce the author to rethink the article before submitting elsewhere. We do not lightly reject an article that has passed our screening and gone to peer review, and we do this only when we are convinced that mere revisions are not viable.

JHHW

A modest proposal on zoom teaching

No preliminaries are necessary here. One result of Covid-19 has been a shift to online teaching by Zoom (or similar platforms). In some law faculties all teaching is online. In most faculties most teaching is online with some hybrid teaching, and in a few (privileged) places in-person teaching remains viable.

It is also a commonplace that most teachers find Zoom teaching inferior to in-person teaching, both from a didactic and a human point of view. The two are oftentimes intertwined.

And yet the impact of Zoom teaching will differ according to one’s style of teaching, and will affect some styles more than others. The challenge in each case, though, is to narrow the quality gap between in-person teaching and Zoom teaching, regardless of the style of teaching adopted.

At one end of the scale are those whose teaching is principally a lecture (with some time for questions at the end perhaps). At the other end are those, like myself, whose teaching, even in large classes, is principally through question and answer—the so-called Socratic method (though I am not sure what Socrates would think of this use of his name and method). Though the class is conducted through Q&A it is, as I tell my students, simply lecturing through their mouths, which has various benefits with which I need not trouble the reader here. I certainly do not want to argue for or against these different poles and the variants in between. Each has its pros and cons.

Grant me, however, that the gap between in-person and Zoom teaching is narrower the closer one’s style of teaching is to the formal lecture. In fact, there are several faculties where the online teaching, or significant parts of it, at least in larger classes, is by recorded lectures.

For those whose style of teaching is closer to mine the Zoom challenge seems formidable. Indeed, the challenge for “Socratic teachers” is greater also as regards in-person teaching. It is such a common experience to pose a question to a class and face 60 blank faces. There are so many reasons which explain this type of reticence. The teacher is then faced with a Charybdis and Scylla dilemma. You may rely on the “usual suspects”—those who are always eager to participate. This carries two risks: essentially you are actively teaching only a small number of students while the rest regress to passive mode, pen poised to write down the “right answer” without active mental and verbal engagement. Additionally, there is no correlation between eagerness to participate and quality of answer—a bit like a karaoke party where the microphone is habitually hogged by the tone deaf who are unaware how badly and out of tune they sing.

Alternatively, you can “cold call” on students—even those who have not raised their hands. There is a naming and shaming cost to this method, which breeds resentment, anxiety (will he call on me?) and gives expression to that wise Talmudic saying: the strict cannot teach and the timid cannot learn. I have largely moved away from cold calling. 

Here then is the “Weiler Method” for dealing with this dilemma, both in person and on Zoom. When teaching in person, whenever I pose a question that is not trivial and requires some thinking and deployment of analytical and synthetic skills as well as legal imagination, I pose the question, explain it and then say: now, take five minutes to talk to your neighbors. In a 110-minute class this might happen as often as 10-15 times. I explain the benefits to the students: with more time to think and specially to deliberate with one’s colleagues, the answers will be better thought out, substantial and substantive (not telegrams). Additionally, and I explain this too, I instruct them to do something that should become second habit: don’t think only what you want to say but what would be the most effective way to say it. In other words, each exchange is also an exercise in articulate presentation.

There is a third reason for this method, which I do not explain: there is a much greater student willingness to speak and less reticence on my side to call not on an individual but on a group: What did your “group” think? And invariably the answer will start with a “We thought” this or that, spreading the risk, so to speak. I have been doing this for over 25 years and it works for the most part splendidly, even in jurisdictions that are not accustomed to proactive teaching.  Students adapt quickly—time to think, group deliberation, answer, and then discussion from other groups and the instructor.

Does one not lose an awful lot of time? Well this goes to one’s philosophy of teaching. I may “cover” less, provide them with less fish, but turn them into extraordinary fishermen and women.

How, then, to adapt this to Zoom? By a very extensive and liberal use of the so-called Breakout Rooms (I call them Discussion Rooms—breakout makes me think my class is a prison). With a single click Zoom will allocate the students in an arbitrary fashion to as many discussion rooms as the instructor elects. I determine the number so that in any room there will be no more than three to four students (speak to your neighbour). After five minutes, sometimes less sometimes more (depending on the question), I click the students back and then simply cold call on any room by number: What did you in room 9 think? And so goes the class. The effect is very similar to the in-person experience, with the added advantage that throughout the class students are having real conversations with their colleagues, diminishing somewhat the Zoom alienation. And yes, I do this, too, in one of my classes that right now has 117 students. Finally, I request my students to have videos on. Concerns for privacy can be dealt with by another single click activating the artificial background. I have had no pushback and it definitely diminishes the alienating features of Zoom, not least talking to black screens.

For your consideration.

JHHW

In this issue

Our third issue of the year opens with an article by Adiel Zimran, which discusses three approaches towards the theological value of autonomy, and how they can contribute to contemporary discussions in Western constitutional liberalism about autonomy and liberty.

Our Symposium section features two symposia. The first one analyzes the changes in the landscape of Israeli constitutionalism during the past decade. Adam Shinar, Barak Medina and Gila Stopler introduce the articles by highlighting recent transformations in Israeli constitutionalism and their importance in understanding the current state of the constitutional order. The symposium’s first paper, by Ariel Bendor, argues that the Supreme Court has gradually expanded its discretion in assessing the constitutional limits applicable to primary legislation, thereby making Israeli constitutionalism judiciary-centered. Next, Alon Harel and Noam Kolt examine what they see as the worrying role of populist rhetoric in Israel’s political and judicial contexts, and argue that the judiciary must develop tools to resist it. Thereafter, Tamar Hostovsky Brandes examines the attitude of the Israeli Supreme Court towards international law in the past decade and concludes that the status of international law in cases pertaining to the Occupied Territories has declined, while reliance on domestic administrative and constitutional law has increased. The following article, by Hassan Jabareen, examines Israeli Supreme Court decisions brought by Palestinian citizens of Israel, and argues that these decisions reflect the essence of the state’s political identity and that the judiciary plays a role, under certain circumstances, in normalizing the exception. Then Barak Medina argues that recent unjustifiable expansions of laws limiting free speech may be the unintended consequence of previous legitimate legislation which has created a culture that does not appreciate public discourse and has enabled the government to curtail free speech beyond what is legitimate. He concludes by proposing three mechanisms to halt this trend. Finally, Yofi Tirosh examines the judgments of Israel’s Supreme Court that have required balancing sex equality and religious interests, and concludes that in the past decade, the Court has almost completely refrained from reviewing cases on the merit, thus failing to provide a legal framework to guide disputes.

The second symposium discusses the problem of “Agunah,” or the “shackled wife,” in Jewish law. The introduction, by Shahar Lifshitz and Joseph Weiler and, explains the problem of agunah and get refusal and emphasizes its gendered nature and its importance in public law. Ram Rivlin opens the discussion by arguing that, contrary to common views, get-threats should be regarded as cases of extortion, even from libertarian and conservative perspectives. Then, Keshet Starr argues that although cases of victims of get refusal meet the central elements of the tort doctrine of Intentional Infliction of Emotional Distress, they are unlikely to succeed in most states due to certain systemic issues related to the prioritization of family and marital privacy doctrines. The next article, by Benjamin Shmueli, presents a vertical carrots and sticks mechanism to deal with the problem of get refusal. Thereafter, Pamela Laufer-Ukele uses negotiation theory to argue that the threat of being a shackled wife disempowers women in divorce negotiations, an issue that must be remedied. Finally, Michael J. Broyde discusses the role and effectiveness of prenuptial agreements in preventing the shackled wife situation.

Our Critical Review of Jurisprudence section features an article by Bell Yosef, which analyzes the advantages and disadvantages of the judicial doctrine on account of which the Israeli Supreme Court dismisses petitions due to the mere existence of a legislative initiative related to the petition’s issues.

Our Critical Review of Governance section in this issue presents an article by Mekonnen Ayano. The article shows that trial and appellate courts in Ethiopia have dealt with conflicts connected to land and land tenure by promoting market alienability, whereas Ethiopia’s constitutional review bodies have taken an opposite stance.

In addition to our usual book reviews and review essays, our review section in this issue offers something a bit different. We invited three scholars working on the origins of Indian constitutional democracy from different angles to discuss their books with each other in a small roundtable. This includes Ornit Shani’s How India Became Democratic: Citizenship and the Making of the Universal Franchise, which tells the story of the creation of the electoral roll; Madhav Khosla’s recent India’s Founding Moment, engaging with the founders of the Indian Constitution and their ideas for the newly independent state; and Rohit De’s A People’s Constitution, which looks at how ordinary people have used the Indian Constitution to assert their interests as constitutional rights in Indian courts. 

JHHW and GdeB


[1] Adopted by General Assembly Resolution 217 A(III) of 10 December 1948.

[2] A.J. Hobbins, On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights (1996).

[3] Humphrey Diary Entry, November 22, 1948.

[4] C. T. Curle, Humanité: John Humphrey’s Alternative Account of Human Rights(2007).

[5] Humphrey Diary Entry, Tuesday December 21, 1948.

[6] Humphrey Diary Entry, October 19, 1948.

[7] Humphrey Diary Entry, September 18, 1949.

[8] Humphrey Diary Entry, September 27, 1949.

[9] Humphrey Diary Entry, November 10, 1949.

[10] Humphrey Diary Entry, January 27, 1950.

[11] PRO File Document CO 859/165/2. Letter to Governor Sir Edward Twining concerning a circular dispatch on the subject of discriminatory legislation in the British African territories (Jan. 8, 1947).

[12] See https://www.bmj.com/content/369/bmj.m1548.

[13] See https://www.cebm.net/wp-content/uploads/2020/05/BAME-COVID-Rapid-Data-Evidence-Review-Final-Hidden-in-Plain-Sight-compressed.pdf.

[14] Lani Guinier and Gerald Torres, The Miners Canary: Enlisting Race, Resisting Power, Transforming Democracy (2003).

[15] Public Health England, Disparities in the Risks and Outcomes of COVID-19 (2020), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/908434/Disparities_in_the_risk_and_outcomes_of_COVID_August_2020_update.pdf.

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Published on February 14, 2021
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