What Does Academic Freedom Have to Do with It?

Pninah Sharvit Baruch, the outgoing head of the section of the IDF legal department specializing in international law, is scheduled to teach at Tel-Aviv law school next year. When an article in Haaretz claimed that Sharvit Baruch used legal loopholes to authorize possible war crimes, e..g, the bombing of the Hamas police graduation, some members of the Tel-Aviv faculty protested her appointment. In particular, law professor Prof. Chaim Gans (whose book on Zionism is displayed on this blog) wrote the following letter to his Dean:

If the allegations in the [Haaretz] article are correct, then my view is that it would be inappropriate for our Faculty of Law to employ Pnina Baruch.

As the article demonstrates, Baruch's legal expertise is in the jurisprudence of legal tricks – a jurisprudence that seeks loopholes in the language of the law in order to evade the realization of its purpose.

In Sharvit-Baruch's case, these legal tricks were employed in the service of evading constraints the purpose of which is to protect the lives of innocent civilians.

In my opinion, a person who is mainly trained in this jurisprudence of tricks legitimizing massive killings of innocent civilians is not a suitable candidate for an academic position in our Faculty of Law. It violates the desirable values of legal academia. Much more importantly, it violates the desirable values of our society.

For these reasons, if Sharvit-Baruch does indeed join the staff of our law school at Tel Aviv University, it will be under my protest.

Gans's protest was reported in Haaretz, which called, in an editorial, for the appointment to be cancelled. In response, Hanokh Dagan, the Dean of the Law School, wrote:

Without commenting on the facts stated in the article, I am not convinced that the faculty of law must examine and appraise the legal, political and moral positions of its instructors as long as these are within the bounds of the law and the accepted limits of a democratic society. On the contrary, the faculty always makes an effort to expose its students to a variety of opinions and viewpoints, and encourages informed, academic discussion on controversial issues…the faculty higher-ups are not authorized and not fit to ascertain the factual questions described in the article ... As long as these questions have not been cleared up, as we know is being done at the present time, there is no room for drawing conclusions.

Of course, there is nothing in what Dagan writes that is incompatible with what Gans wrote, as Gans made clear in his subsequent statements. In fact, Gans immediately agreed with Dagan. Gans was expressing his own opinion that if the Haaretz was article was correct, it would be inappropriate for Baruch to be teaching international law at Tel-Aviv university. This was not because of Baruch's political views, or because of her actions per se, but because she espouses a legal philosophy which is, or should be, out of sync with the legal ethical principles underlying the law school. Gans did not say that his view was the only view, or that the case could not be made for hiring her despite flaws in her legal philosophy. But he certainly has the right to protest an appointment as a member of the law faculty.

All this would have been well and good, had not the heavies then weighed in. First, it was Ehud Olmert, who threatened to cut off funding to any institution "that discriminates against IDF officers because of their military service." Leave it to Olmert to bomb the wrong target. Who said anything about discriminating against IDF officers because of their military service?

Worse was an op-ed by Prof. Shlomo Avineri, a truly sad figure in his dotage, who introduced the quite irrelevant question of academic freedom. Avineri seems to have mixed up the argument against hiring Baruch with an argument for firing her from an academic position because of her opinions. The latter contravenes academic freedom, and is almost always advanced by the rightwing in Israel (see under Leibowitz, Zimmerman, Pappe, etc.) Were Baruch a member of the Tel-Aviv faculty, she would be protected by academic freedom as much as anybody else. The purpose of academic freedom is to allow teachers to advance unpopular ideas without fear of reprisal.

But what does academic freedom have to do with the present case? Baruch doesn't have any more the right to teach at Tel-Aviv university law school than you or I do. And nobody suggests that the only criterion of hiring should be her written scholarship. Whether her questionable legal methods as discussed in the article should disqualify her from a position is certainly a matter of debate among her professional peers (and not for the public at large.)

Avineri shouts "McCarthyism." Yet the only thing remotely resembling "McCarthyism" here is the statement of Olmert, which, if taken seriously, is a threat to cut off governing-funding. May I remind Prof. Avineri that McCarthy was a member of the U. S. Senate, and not a member of a law school faculty.

Prof. Gans, of course, was advocating an action based on a policy. But it is clear from his letter above that he knew that his policy had little hope of being accepted. So what he really was doing was protesting.

And when there is nothing else one can do but protest, that is the time when protest is most important.