On Words and World-Making:  Law professors, power and responsibility

On 6 May 2021, something extraordinary happened in Norwegian academia: in an op-ed in the newspaper Stavanger Aftenblad, Ole Gjems-Onstad, a law professor at BI Norwegian Business School (BI), criticized the Labour Party and 22 July survivors for a lack of self-criticism.

The op-ed was met with disbelief, horror and condemnation by survivors, newspaper editors, politicians and ordinary citizens. BI was quick to emphasize that Gjems-Onstad had expressed himself as a private individual rather than in a professional capacity – and that BI did not share his views about 22 July. At the same time, BI underscored that academic freedom is central to the work of educational institutions.

Here, I will argue that this case is about more than our academic freedom. Putting distance between the institution and Gjems-Onstad and his message is not so simple as deleting the reference to his professional title and with it the credibility that comes with academic expertise.

22 July memorial in Gjøvik, Norway. Photo: Øyvind Holmstad / Wikimedia Commons

I doubt that many, if any, of my colleagues share Gjems-Onstad’s ideas or lack of judgement – and I would assume that for his  BI colleagues the references to Gjems-Onstad as a “BI professor” are extremely uncomfortable. I also consider BI’s strategic decision to do nothing to contribute to the public debate beyond issuing minimum assurances as a missed opportunity to display leadership and societal responsibility.

Here, however, I want to focus on a different issue, namely how we should think about the responsibility of  individual academics. My take is that in fact, we are not important as individuals – but by virtue of our membership in a collegiate body with great power and on the basis of the role we have as educators of (mostly) young people.

The power and prestige that still attaches to the title “professor of law” – or professor of anything – are accompanied by great responsibility. This responsibility concerns what we should teach our students to become – and what they can expect of us. At the University of Oslo (UiO), being a professor of law involves preparing our students to swear the oath required on graduation. The oath, which dates from 1736, demands in a baroque language that prospective law graduates swear that they “will never knowingly deviate from law and justice, nor counsel anyone to unnecessarily bring suit or otherwise advise or assist in the promotion of any unjust cause or activity” [translated for this blog].

This is a professional rule of conduct that among other things is continued in the lawyer’s professional oath to promote justice and prevent injustice. This means that the requirements we impose on our students also impose requirements on us. As law professors, we must also promote justice and prevent injustice, by maintaining high ethical standards and displaying good judgement, among other things.

In the years since 2011, the Faculty of Law at UiO has had the privilege of educating many survivors from the attacks on Utøya and the Government Quarter. With hindsight, we can see that academically, the faculty was not well enough prepared with regard to integrating the events of 22 July into its study programmes. We have suffered the consequences of this situation and are attempting to do something about it.

On a personal level, I was completely blindsided in a socio-legal studies class in March 2017, where I was planning to discuss Anders Behring Breivik’s exploitation of the courtroom as a stage, when I discovered a survivor sitting in the front row. I’ve spent much of my academic career conducting research into how people use the law in countries at war, whether these people are Congolese refugees in Uganda or internally displaced women in Colombia. I’ve met many children and young people who have lost everyone and everything, and who live with severe physical and psychological injuries after surviving appalling atrocities.

I was unprepared to encounter young people with similar experiences in my own classroom: I had never imagined that I myself would have students who had experienced mass slaughter on Norwegian soil. That day in the lecture theatre I had nothing to say, and in the years since I’ve struggled with what I should say.  I hesitate, stammer and  it  does not always work out as I hope.  Yet that somehow seems to matter less than to keep trying – because it’s not acceptable to say nothing about the most significant event in Norway’s post-war history. Words are important, words shape the world. We have to try.

Sometimes students identify themselves as survivors or close relatives or friends of the victims. More often in the past, now more rarely – although students who were personally affected by Utøya will still, for the unforeseeable future, continue to be present in lecture halls across Norway.

Fortunately. This scenario applies to all of my colleagues, professors of law, and also to everyone else involved in academic teaching. We don’t know who is sitting in front of us in a lecture theatre, in a seminar room or on Zoom, but we do the best we can to explain the separation of powers, dispute resolution methods, legal ethics and legal method as the building blocks of a constitutional state. In total, this specialized knowledge becomes a toolbox for lawyers who will venture out into society to contribute in central and local government, the voluntary sector, in business law firms, commercial practice and academia to the upholding of Norwegian democracy and the Norwegian welfare state.

This is where I get to the gist of my argument: All our efforts to ensure that our students become the best possible lawyers also constitute work to counter extremism, totalitarianism and the decline of the rule of law. This is the job of everyone in a professorial position at a faculty or department of law, regardless of their specialization.

Gjems-Onstad teaches tax law and has not done academic work on terrorism. In fact, very few legal scholars have conducted research into the events of 22 July – but that does not mean that we should not be able to express our views about the terror attacks and their consequences for Norwegian society.

This is because the consequences are so far-reaching – for criminal and civil proceedings, for welfare law, security legislation, property law, human rights, criminal law, and many other specialist areas. More than perhaps any other disciplinary field, law has had its subject-matter deeply affected by 22 July. As a professor of law, from a scholarly perspective, it is almost impossible to avoid this terror attack and its aftermath.

This is also where the dilemma arises. On one hand, we must recognize 22 July as an extraordinary event of deep cultural, political and societal significance. On the other hand, we need to acknowledge the ‘ordinary’ means (such as law) we must use to take our society forward. How do we manage this balancing act?  What can and should we do or say – and what must we never do or say? Ole Gjems-Onstad’s words – precisely as a professor of law, not as a private individual – shape the world for his students. This week in May 2021 they also shaped the world for my former and current students.

It is unthinkable to envisage a situation where students who are themselves survivors or were close relatives or friends of victims will have to sit in front of a professor, whose responsibility is to help them swear their graduation oath, but who maintains publicly that these same students have displayed a lack of remorse about their own failure during a politically motivated mass murder. Law professors must do right and combat wrong. Power comes with ethical responsibility. Including a responsibility not to remain silent in this debate.

Very few legal scholars have conducted research into the events of 22 July 2011 – but that does not mean that we should not be able to express our views about the terror attacks and their consequences for Norwegian society.

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