Recent celebrated cases, where universities have sought to discipline academic staff, to dismiss or even to refuse to employ them, have opened a debate about the nature of academic freedom, especially in the context of complaints about how individual academics express themselves.  

In the US the Salaita case (a recent discussion at http://www.nytimes.com/2014/09/13/world/middleeast/professors-angry-tweets-on-gaza-cost-him-a-job.html?_r=0 ) turned on Salaita’s tweets on Gaza, as a result of which his job offer from the University of Illinois was withdrawn. The situation was glossed by the University of Illinois as a debate between the principles of academic freedom and the demands of ‘civility’, where civility is taken to trump academic freedom (see http://illinois.edu/blog/view/1109/115906?count=1 ).  There has subsequently been a turn among some of the participants of the debate to take ‘civility’ to be ‘nonsense’, and to promote abrasive criticism apparently in defence of academic freedom (see Brian Leiter’s remarks at http://leiterreports.typepad.com/blog/2014/09/the-duty-of-harsh-criticism.html juxtaposed with his ongoing coverage of the Salaita casehttp://leiterreports.typepad.com/blog/2014/09/fairly-even-handed-ny-times-item-on-the-salaita-case.html ). 

IN the UK, the Docherty case (constrained throughout by the confidentiality imposed by Warwick on Docherty himself) concerns the ongoing nine-month suspension of a vigorous critic of the UK higher education system. Thomas Docherty is subject to a disciplinary tribunal, not, according to the university,  for his views on universities, but for his tone and stance within his Department (http://www.timeshighereducation.co.uk/news/thomas-docherty-to-face-insubordination-charge-in-tribunal/2014711.article ). The disciplinary action by the university was apparently foreshadowed by a blog written by the University’s lawyers (http://www.timeshighereducation.co.uk/news/lawyer-compares-suarez-bite-to-academic-outspoken-opinion/2014359.article  and http://publicuniversity.org.uk/2014/07/04/academic-freedom-and-the-corporate-university/ ) as a sanction against ‘insubordination’. There are many other such cases, documented daily.   This all seems to be the most horrible mess, and badly to need rethinking.

The principles of academic freedom (see this 1940 US formula, since modified but in its central claims unchanged: http://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure  ) suppose that academic inquiry has no boundaries. If academic institutions exist for the pursuit of knowledge and understanding, whether alone, or with colleagues, or with students, such inquiry does not say in advance what may or may not be thought, or considered or assumed or believed.  Socrates’ injunction to follow the argument where it leads is surely the right one: inquiry is not constrained by canons of what can or cannot be said or thought.  This is true, at whatever level the inquiry occurs. So an inquiry into inquiry is similarly unconstrained.  Equally, an inquiry into how inquiry should be institutionalized is free in the same way.  The context of inquiry, that is, is a suitable topic for inquiry too – the openness runs across fields and up the orders, to include, of course, the inquiry into academic freedom itself.

If that is right, then the basis of academic freedom is internal to the nature of academic business.  Academic freedom, that is, is an epistemic condition on thought where it occurs in an academic context – that it should be unbounded and untrammelled (this does not, of course, imply that there are obligations on others to fund any thought at all).  If that is right in turn, then academic freedom is in the first instance an epistemic condition, rather than a moral one: we find its basis by thinking, not about Kant or Mill (despite the nice arguments here http://www.spiked-online.com/newsite/article/how-academia-traded-freedom-for-justice/14847#.VBcYHVZ5CaB ), but about the nature of thought.  It is – one might say – a norm of thought that it should thus be free.

But here there is an immediate difficulty.  This sense of ‘free’ is nothing like the sense in which we might demand ‘free speech’ as a right, or in the sense supported by the US First Amendment.  The latter sense is from the very outset moral or political. It is a context where we may indeed appeal to Kant on autonomy or Mill on liberty: we take it as fundamental to our political liberty that we may say what we wish without hindrance.  But since freedom of speech is a moral and political issue, from the outset, there are bound to be other moral claims which may limit it – for example, the free speaking of racist sentiments is morally deplorable; and the moral balance between the right to say what one wants and the right of others to be regarded as equal is not obviously titled in favour of freedom and against equality.  Because freedom of speech is moral, its limitations are moral too.

Academic freedom, however, is freedom of a different kind – it is a kind of epistemic freedom. Suppose then that an institution seeks to curtail that – to curtail, that is to say, the activity of an academic to follow the argument where it leads.  This move by the institution is, I suggest, pragmatically incoherent. If the institution exists to promote thought (of course that is up for grabs too these days – but for the moment let us imagine an institution that exists to promote the search for, and the spread of, knowledge and understanding) then to seek at the same time to impose boundaries on thought, is in a formal sense, absurd.

Nonetheless, academic freedom is exercised in speech.  It falls also, then, under the right to freedom of speech; but it is not merely a contextual variant of freedom of speech. What academics may say in private is supported by the principle of free speech, and limited by the constraints on that, whether they be legal or moral.  What they say qua academics is governed by academic freedom, and it relies on thinking about thought as functioning without boundaries.

What are we to say, then, of civility?  Civility is, we might think, a moral matter (and not a matter of mere manners).  What is more, civility is a moral aspiration, not, as it were, a sine qua non of any moral activity: we seek to be civil and thoughtful and polite and sincere –we backslide, alas, all the time (I speak for myself, at least), but we may keep on trying.  As a moral aspiration this is not unconditional; it does not, that is, automatically trump other moral imperatives.  Nor does it trump imperatives that come, as I suggested, from the nature of thought  -- although both in morals and in thought civility may well need to be taken seriously.   Civility is an important aspiration in the context of inquiry that is free in the sense I outlined.  For free inquiry occurs between and among people; and people are over and over affected not only by the content of what is said, or even the general import of what is said, but also by its manner and its tone.  Loud and fierce declarations of opinion often force an interlocutor to be silent, or to be afraid; in such cases civility is clearly conducive to an effective and productive exchange of ideas.  Conversely, it can happen that an interlocutor refuses to listen (this, perhaps, is what we see most often in the cases where institutional force majeure is wielded); and on such occasions incivility may well be excusable, or even required.  These issues must be case by case (such is the way of complex moral requirements). But perhaps in general we might think that free inquiry is promoted when each party keeps their temper, minds their language, and tries to attend to the other point of view (I give you the case of Socrates, again – it is a mark of how hard civility is to achieve, or even to believe in, that his persistent good temper and good manners, in the face of the hemlock, invites first-time readers to construe what he says as ‘irony’).

But whatever the case, the issue of civility is orthogonal to the epistemic demand of freedom. If we make the mistake that they are converses, then some nasty consequences follow.  In the present discussion of the Salaita case, some have taken there to be a choice between academic freedom and civility, and to think that in that case we need to ensure incivility in order to maintain academic freedom. Others have thought and said that civility is somehow a soft-hearted muffler of proper intellectual integrity, and should be thrown off in favour of its alternative. But this is to buy into the mistake already perpetrated by the arguments of the University of Illinois and others. Academic freedom is not the alternative to civility.   Academic freedom is the sine qua non of academic thought; civility helps it along.

The destruction and the hatred that underpin the situation in Gaza are mirrored in the discussion of what is happening there.  For the rights and wrongs of what is happening, and the background to ceasefires and their fracture, are rehearsed and retold and fought over, with the same old stories of heroes and villains that have become familiar for the last half-century and more.  The hatred on the ground is replayed in the media, sides taken and sides attacked in a replica of the conflict on the ground.  To dare to say anything is to join a side; and to join one side invites attack from the other.  This has the effect of polarizing opinion; and of silencing all but the hardiest of commentators.  Indeed there are heroes and villains here: but now most of all there is grief and pity for the awful loss of life in Gaza, and the brutalizing of the participants, as the horrific events continue.  And that grief and pity may drive a new account of heroes and villains, and serve to make things worse, and break the fragile efforts for peace. But there is something desperately wrong here in how evil and harm and injustice are conceptualized, a wrong which will perpetuate the tragedy of what is happening there indefinitely. 

Tragedy, however, might help us to see things rather differently. Sophocles’ Antigone describes the aftermath of a civil war in Thebes, the city of Oedipus.  Of Oedipus’ two sons, the elder, Eteocles, was challenged by the younger, Polyneices, for the kingship (this is another tragic tale: Aeschylus’ Seven against Thebes), and in the ensuing carnage both were killed, amid the slaughter of many others.  The Antigone describes the struggles of the return to the rule of law in the city, as Creon, Oedipus’ brother and now king, decrees that the body of Eteocles should be honourably buried, but the body of Polyneices, the upstart invader, should be left for carrion.  In opposition to Creon, Antigone, Oedipus’ daughter, insists on giving burial rites to her brother: the action of the play turns on the conflict between Creon’s absolute insistence on the rule of law, and Antigone’s equally absolute insistence on her family duty.  In the end no-one wins: Creon condemns Antigone to death, and with her dies Creon’s son. The impasse of the two opposed positions of principle constitutes the tragedy of the play: no good at all can come from it, and whatever the outcome, the lives of all concerned are irretrievably marred. Humanity, as the Chorus observes, may be too clever for its own good.

Many are the things of terror and wonder, yet none is more terrifying and wonderful than man. (Antigone 334)

The tragedy of the Antigone illuminates some of the passionate debate about Gaza.  Sophocles’ play is contextualized by its past, by the fate of Oedipus and the pollution of his family. It revolves, thus, around its characters’ repeated representations of the past – representations of what has happened, of what is owed to justice, whether human or divine, insistent claims about who has wronged whom and why that matters.  We see, here, just how pernicious these appeals to past wrongs can be – how the constant repeating of who did what to whom, and who did what first, itself drives the action of the play.  The very insistence on justice looks to the past: and it is a backward look that blinds the protagonists to the future so far as to eliminate their future altogether.  It is this very insistence on being right, on one principle trumping another, on taking sides and having a final ordered answer that precipitates the tragedy. Humanity is indeed too clever for its own good.

Whoever thinks that he alone is wise in thought or that in speech or spirit he has no peer – such a man will be laid bare, revealed as empty. (Antigone 705 ff., Haemon speaking to his father)

Recent discussions of the Israel/Palestine conflict seek to show justification for the actions of one side or another by describing the appalling wrongs that have undoubtedly be perpetrated by both sides. This description is itself taken to appeal to justice; and such appeals seek to enlist the observers on one side or the other, to adjudicate just who is the villain and who is the victim, on pain of a charge of inhumanity (if the appalling sufferings of Gaza are ignored) or of bigotry (if Israel’s right to self-defence is ignored).  The disputes in the media echo the struggle on the ground; and they seem as irreconcilable. But this appeal to justice may do immeasurable harm. For, as Sophocles shows, thinking about justice in this way focusses the whole discussion on the past, and makes it blind to where the future might be reconstructed, from where things are right now. Justice, however, need not be – only or at all – about retribution.  Instead, it can look to the future, to the ways in which a proper settlement may respect each of the citizens of each side, and may give each a life worth living.  Justice of this kind should not insist on its past. Conflict and the search for retribution are about what each party has done; peace and the justice of fairness must be about the future.  It will only be possible when the past is not brought in as a constant refrain, when retributive justice is not the dominant theme, not only of the conflict itself, but of the commentaries about it.  History may be a lesson; but it is a dangerous ground for complaint.

The appeal to retributive justice not only focuses attention on the past; it also makes us forget the lessons of tragedy – that the human condition is one in which there may be no right answers, nor complete solutions, but where any outcome is mired in regret and muddle and compromise. For compromise may be the best we can manage in situations such as this.  Here again some of the commentary on the situation is Gaza misleads us into thinking that there may be a determinate solution, a way of calculating what to do next.  In part this is a question of taking sides; and in the present situation in Gaza, that serves to proliferate the problems (of victimization, of destruction, of bigotry and prejudice on either side). But in part it is encouraged by the commentaries which attend to numbers – the numbers of the dead, of the combatants, of the square miles of Gaza, of the years of the blockade, of the genocide of Jews or Palestinians present or past, of the executed, of the enlisted, of the cost of these wars to either side. 

For the most part, these numbers are hard to comprehend. Do we really attend to the difference between the death of ten children and the death of twenty? Is the death of ten less appalling, really, than the death of twenty? Surely both are morally and emotionally shocking, in ways that are not quantified at all? But the numbers – and the fruitless debate about proportionality (on this see the sane remarks of Frances Kamm, http://www.bostonreview.net/books-ideas/fm-kamm-taking-just-war-seriously-gaza, who nonetheless encourages the quantitative approach) -- suppose that there is an answer to the question whether the death of ten Palestinian children is or is not proportionate to Israel’s reasonable need to protect itself.  Surely that question just does not have an answer that could be understood by a sane person? The practical calculation of action and outcome in terrible situations carries terrifying assumptions with it – assumptions that Sophocles, again, may help us to unthink.

The debate about ‘proportionality’, about whether the response of one side to the action of the other is ‘proportional’ and therefore somehow ‘morally permissible’, has the implication that if proportion is observed, then the action in question cannot be included in the list of the wrongs done by one side since it is somehow permissible ‘in the rules of war’.  This making of a list of wrongs is, if I am right, itself responsible for precipitating tragedy: and the talk about the conflict itself precipitates its becoming worse. Moral philosophers are fond of thinking about such questions in ‘what if?’ ways: what if you are able to divert the train at the points and save five lives at the cost of one; what if to save those lives we need to murder someone else, and so forth.  But in the dreadful case of Gaza, the ‘proportionality’ question seems to look like this: how many civilians (or children) is it permissible to kill in self-defence? Or how many lethal rockets fired into your territory is it proportionate to ignore?  Or how many spies can you execute without trial without turning the balance of world opinion against you forever? Such questions are, surely, utterly grotesque.  To suppose that they have a quantitative answer is, I suggest, itself a source of evil.

The grotesquerie arrives, I think, further back in the thinking about impossible situations like this, situations where the appeal to justice, to past wrongs and past crimes, pretends to be a proper accounting.  Those appeals suppose that there is an answer to the summing of evils, that there is a right way out of here by exacting the right sort of penalties and acting in proportion.  In the situations described by Sophocles there is no such right way; the tragedy arises from the assumption that there is, and from the assumption that appeals to the past can vindicate. The lesson, we might think, should be learned in the rhetoric about Israel and Gaza: both are wronged, and both are wrongdoers. There is injustice here, everywhere and at every turn. But tragedy resides in insisting that this is where the story ends.  The possibility of peace, on the contrary, lies in the protagonists’, and their supporters’, finding it possible to stop counting, to stop rehearsing the wrongs done, to forget the past and its wrongs and shames, and to think instead about just distribution for the future – the future that some of the children of Palestine will not see.