The Role of the Constitutional Scholar in Relation to the Rule of Law Crisis

Abstract

This paper considers recent debates around scholactivism and the proper role of the constitutional scholar. The first half of the paper takes stock of differing views that have recently been expressed on this matter and unpacks some of the key points of contention that arise from these differing perspectives. After this survey of the terrain, which yields a series of questions, it is argued that any examination of the proper role of the constitutional scholar is incomplete, particularly when it comes to upholding the rule of law, if it does not factor in the educational function(s) that scholars perform as part of their everyday duties. This approach is prompted by the fact that much of the discussion to date has focused upon the scholarly activities of research and the dissemination of research findings. When it comes to the role that constitutional scholars can play as educators in upholding the rule of law, matters can be viewed from both an internal, faculty-oriented perspective and an external, public-oriented one. In both cases, the constitutional scholar can make a significant contribution towards inculcating an understanding of, and respect for, the rule of law. This requires, first and foremost, the ability to effectively articulate and communicate a clear understanding of what the point of the rule of law is and why the rule of law matters. It is claimed that avoiding the arbitrary exercise of power is the essential purpose of the rule of law. As experts with insights and opinions on these questions, constitutional scholars stand at the vanguard of vigilance when it comes to detecting actual and potential cases of this. It is argued that, rather than staying silent whenever the facilitation of the arbitrary exercise of power is on the rise, the constitutional scholar’s role as educator requires her to draw upon the language of the rule of law – its values, concepts and ideals – in order to comment on and critique such developments. Doing nothing cedes the ground to those who would wish to dismantle the rule of law and, crucially, allows those forces to do so in the face of less resistance from those who are best placed to explain what the point of the rule of law is. Moreover, it guarantees that the debate is conducted without the wider public being able to share in the expertise and arguments of constitutional scholars as to why the rule of law is of such profound importance to addressing the perennial problem of the arbitrary exercise of power. When it comes to the rule of law, educating both students and the wider public about the point behind the rule of law seems to me to be perfectly in keeping with the proper role of the constitutional scholar.

Keywords: Constitutional Law, Scholactivism, Rule of Law, Legal Education