ICON Volume 18, Issue 2: Editorial

Orbán and the self-asphyxiation of democracy; Publishers, academics and the battles over copyright and your rights, Part I; Festschrift? ‘That which is hateful to you, do not do to your fellow! That is the whole Torah; the rest is interpretation’ (from the Elder Hillel in Babylonian Talmud, Shabbat 31a); In this issue

Orbán and the self-asphyxiation of democracy

It came as no big surprise that Orbán has used COVID-19 to dismantle further the checks and balances that are an integral part of any functioning democracy. On March 30, 2020, with the authorization of the Hungarian Parliament (in which the government has a large majority), an Act was passed,[1] which effectively gave the government sweeping powers to rule by decree. It is not unusual in times of emergency for the executive branch to revert to extraordinary measures, though in this case they have a Hungarian twist: the new law is of indeterminate duration (though Parliament can end it when it sees fit—in the case of Hungary de facto when the Executive sees fit) and the powers granted exceed those necessary to deal with COVID.

More ominously, alongside that enabling law, the Penal Code was amended, permanently, to introduce two new crimes—punishable by up to five years’ imprisonment for any activity that interferes with the government in the discharge of its emergency responsibility and for any publication “distorting the truth” that might alarm a large number of persons—which I imagine could mean any publication that contradicts the government narrative. I consider this part of the package far, far more pernicious.

There have also been reports of government changes to the education package in schools to bring it into conformity with the government view of Hungarian history and “appropriate” Hungarian authors.

Hungary has deepened further its “illiberal democracy” —a juicy oxymoron.

Not unexpectedly, the social networks were full of (justified) fire and brimstone, though the official reaction of the European Union by the President of the Commission was, in the eyes of many, rather “gentle.” (The Christian Democrat EU family, which in this case strikes me as neither Christian nor Democrat, really needs to do some soul searching.)

But a characteristic of the popular social network was, again not unexpectedly, like a commercial jingle: Orbán here, Orbán there, Orbán, Orbán everywhere.

And herein lies what I consider a real problem, both in analysing the problem and reacting to it. In the name of democracy, we forget the basics of the democratic ontology.

First, there is an ironic paradox in this last act. Of all countries, the one that least of all needs emergency powers to facilitate the functioning of its Executive is Hungary. The systematic dismantling of the substance of liberal democracy, though carefully if entirely artificially sticking to the form (that’s the strategy and tactic) means that already before the Act, the executive branch had a far freer hand—in fact, a totally free hand—than most other governments. And these last measures are not the most grave in the process—the earlier de facto emasculation of an independent judiciary, for example, was a far weightier assault.

The real point, however, is that by saying again and again Orbán, Orbán, Orbán (and make no mistake, he is vile), we fall into the trap that reflects a widespread malaise in our general democratic discourse of “deresponsiblizing” the People, the nation, the electorate. Orbán has been clear and transparent—he declares openly, to the world and his electorate, that he wants an “Illiberal Democracy” (to repeat, an oxymoron in my vocabulary). He, and those to his right, were elected with a significant majority and, hugely significantly, were re-elected even after the reality of his regime was there to be seen by all and sundry. We call him a dictator. That is, paradoxically, comforting; the classical image that Dictator and Dictatorship conjures is one of 10 million Hungarians suffering under a repressive regime with all the attendant paraphernalia: the knock on the door in the middle of the night, disappearances, torture, gulags, etc. This is not the case in Hungary. Mercifully not even close. But it is precisely because he is no Franco, he is no Pol Pot, he is no Ceausescu; this is not the Greek colonels or the Argentinian generals; there is no Securitate or Tonton Macoute and the like, which makes the new phenomenon, in the heart of Europe, in the European Union, so demoralizing.

This is not a regime about which it can be said that the free will of “the people” has been repressed. Even though the information and deliberative processes have been perverted, no serious observer could deny that he (and those to his right) enjoy widespread and deep support from a significant majority of the electorate. The Parliament, with his constitutional majority, is a more or less accurate and true reflection of the popular will. The majority of MPs who voted for these and previous acts, and the President who signed them, are expressing the collective will of a majority of the Hungarian people.

All the attempts to avoid this incredibly uncomfortable truth—they don’t understand, the media is controlled etc. —falls into the trap of that otiose Marxist trope of False Consciousness, a trope that expresses both arrogance and disrespect. Those among the Hungarian people who voted for him—a substantial majority—understand perfectly well, just as you and I do, what he is about, what his worldview is, and they approve of it.

Now, we all know, or should know, the difference between individual guilt, which is indeed individual, and collective responsibility that a society has to assume, admirably articulated in the recent May 8, 2020 speech of the President of Germany.[2]  Laudably and with utmost integrity, like several of his predecessors, he did not resort to the “Hitler Hitler, not us the Germans” obfuscation. 

Yes, there was a not insignificant minority that voted against Orbán. And one should do everything in one’s power to support them.  But democracy also means collective responsibility. I observed the same with Bush over Iraq. Bush, Bush, Bush. But it was not simply Bush, it was the American people who voted for him (twice—thus retroactively approving of his policies) and a Congress that also overwhelmingly approved his actions, ex ante and ex post. Responsibility for Iraq rests as much with the American people as it does with Bush. There are endless similar examples—choose your favourite. If Trump is re-elected in November, there will be no excuses.

Why, then, is it all the time Orbán, Orbán, Orbán, and not pointing the finger also at those responsible for Orbán? Why do we refuse to acknowledge that Orbán enjoys majoritarian legitimacy, albeit in a state that has ceased to conform to our normal notions of liberal democracy? 

There are, to my mind, several reasons.

The first is that we operate under the false assumption that if it is democratic it is okay. It is good. How false. If it is not democratic it is certainly bad. As a technology of governance obviously, with all its flaws, we consider democracy indispensable. But the opposite is not necessarily true. A democracy of evil people will be an evil democracy. A democracy of (socially) unjust or uncaring or indecent people will be a socially unjust, uncaring and indecent democracy. To point the finger and condemn those who, if we believe in democracy, should be the first and last to be held responsible—those who elected and re-elected Orbán—is not to show disrespect to democracy, it is the opposite; it is to show respect for democracy. If we do not, we actually disrespect democracy.

The second is that we shy away from any statement that inculpates “people”—i.e., not those in power. We always think of “people” as entitled to rights and benefits, and all other good things. We are not in the habit of holding them responsible. But in democracy they, we, are. We shy away from collective responsibility, but the essence of democracy is collective responsibility. Democracy is not only for the people; it is also by the people.

And as I noted above, there is a difference between individual guilt, for which individuals should be judged on an individual basis, and collective responsibility of the demos which constitutes the democracy—provided their will was freely given in reasonably free elections.

And there is a third reason. “Orbánizing” the phenomenon and infantilizing the people who vote for him in droves serves as an exculpating device for us. It obviates the need to do some serious soul searching regarding the failures of our liberal democracy to which millions of Europeans across the continent turned their back. When we keep parroting Orbán, Le Pen, Salvini and other fellow travellers, we do not need to ask where we went wrong and can continue to bask in our sanctimonious self-righteousness. This should not be read as any kind of justification for “illiberal democracy.” But we cannot remain complacent when so many in so many of our Member States seem to be turning their back to the European construct and to the basics of liberal democracy.

Thus, to point a finger not only at Orbán and his likes but at the people who freely put him there and endorsed his programmes through their votes would impose on us, too, the same moral imperative of democratic responsibility—to reintroduce us to a more honest form of republican democracy, a form to which we have become less and less accustomed.

So, let’s reserve the appellation Dictator to the likes of Pol Pot or Franco. The last instalment in the Hungarian saga is another drop in that poisonous chalice. But this is not a military coup d’état. And this is not rule by terror. This is an act of collective democratic self-asphyxiation, of willed action, which could have been stopped at the ballot box. Let us call it as it is, and this call makes the Hungarian situation ever more disconcerting: a vile leader supported by a significant majority of his subjects.

JHHW

Publishers, academics and the battles over copyright and your rights, Part I

Academic publishers and academics live in a symbiotic relationship. Even university presses are dependent (this is the most delicate way of putting it) on profits and they earn such from our writing. Without us, they would be out of business. And we, the writers, even in the age of the internet, need publishers. They provide an important service in a variety of ways. You would not be reading this Editorial if this were not the case.

This symbiosis would suggest a relationship of equals; with few exceptions, for most of us this is hardly the case. We approach publishers like supplicants before an all-powerful despot. The Road to Canossa was a spring jog by comparison. Sounds familiar? It’s always them doing us a favor by publishing our book rather than us doing them a favor by giving them our work. Sounds familiar?

One area where this disparity of power is most noticeable is in relation to copyright and associated rights over the fruit of our labor. There is much that is unacceptable, driven by inertia (“that’s how we have always done it”), caprice (yes) and greed.

The issue of copyright differs according to the nature of the work published, monographs, edited books, and journal articles being the principal cases.

I plan to take each in turn and start with what I consider the “easiest” case—contributions to edited books. Nota bene: I will not discuss here copyright in the edited book itself, but just in the individual contributions thereto.

This is the most banal of occurrences. It is hard for me to believe that readers of this Editorial would not have found themselves in this situation at least once, and with the years passing countless times. You are invited to contribute to an edited book. For some irrational reason you agree and eventually consign your contribution. In most cases the only editing of your work that will take place is copy editing, but that is a movie we have already been to (see “On My Way Out —Advice to Young Scholars III: Edited Books”, https://doi.org/10.1093/ejil/chw047).

As the date of production nears, you receive, typically directly from the publisher, sometimes from the editors of the book, a request to sign the copyright form.

The following is a typical form—it happens to be from one of the most distinguished publishers in our field.

Let me walk you through the salient points. 

Your eye draws you to Clause 2.2, which fills you with joy:

The copyright in the Text shall remain vested in the Contributor.

Of course, you think. It is my work, my thoughts, my brilliant ideas etc, etc. Hold your horses! What Peter giveth Paul taketh. You skipped a clause. Take a deep breath (if these matters bother you), settle down and read:

The Contributor hereby grants to the Publisher for the legal term of copyright including any renewals and extensions the exclusive and irrevocable right and licence to produce publish display communicate to the public and exploit and to license the production publication display communication to the public and exploitation of

[…] the Text

[…] any part of the Text

[…] any new edition or other adaptation or any abridgement of the Text …

in all languages throughout the world in volume form and in any other form or medium whatsoever including (but not by way of limitation) any form of electronic publication display distribution or transmission (whether now known or hereafter invented) that the Publisher may wish.

The rights granted in this Clause may be exercised by the Publisher, and its wholly owned subsidiary [name of distinguished publishers] and include without limitation the right to exercise and grant sub-licences of all translation and subsidiary rights on such terms as the Publisher may determine (my emphases).

Copyright, which remains vested in you, has just lost practically all meaning.

You might be the freeholder of the field, but you have granted a lease that deprives you of any future benefit of your work. This is not all: read the following sweet clause:

The Contributor agrees that the Publisher and/or the Editor may amend and alter the Text in such manner as the Publisher and/or the Editor may reasonably consider necessary.

There is no mention of receiving your consent to any such changes. Imagine this were a painting or a photograph and let your imagination work.

You should be rubbing your eyes in disbelief at all of the above, and vowing to read more carefully what you sign the next time. The disparity of power is so great that now it is common practice for authors to receive the copyright form online and, like some software you are buying, and be given the simple option of clicking Accept or Reject.

In a flair of generosity, the publisher in Clause 3 allows that:

 Provided that full acknowledgement of the Work is given and that such use does not affect prejudicially the sales of the Work, the Publisher shall not object to the use by the Contributor of parts (being less than the whole or a substantial part) of the Text in reworked form as the basis for articles in law journals, conference papers or internal training materials or newsletters.

So, to give but one example, should you wish to publish in book form a collection of your essays, that would be a no no. One publisher once required that I pay them for photocopying one of my book chapters for the use of my students.

Our example copyright form happens to come from a UK publisher; mindful of the English doctrine which provides that a contract with no consideration might not be enforceable, we find the clause entitled Remuneration (you should be sitting down):

In consideration for providing the Text for publication in the Work on the terms of this Agreement, the Contributor shall be entitled to receive on publication one presentation copy of the Work.

If you ever wondered what a peppercorn as consideration meant, here you have it.

I have from time to time asked colleagues why they agree to sign such an unconscionable term. (And I remind you that I am here only discussing contributions to edited books. Different considerations may apply to other learned publications.)

The three most common answers I receive are the following:

1. I never read it. I just sign. What’s the point? It’s like pressing “I agree” on the latest download of some computer program or application. (Hey, you are not the author of that program or application).
2. I sign and don’t care. I do with my work what I want. (True most of the time, but not always. If you want to republish in a different language in another book, or in an anthology, the new publisher might request that you obtain a copyright release. Then things might get complicated.)
3. Well, they are entitled to something, after all they published my work. They took the risk.

No, this is all Alice through the Looking Glass. Yes, publishers, including university presses, are not charities. They need to cover their costs and turn a profit. But of what risk are we talking here? They are pretty shrewd in assessing the minimal sale potential of a book and with a simple formula into which this figure plus the number of pages are inserted, will price the book so as not to show a loss. Any book whose sales exceed this estimate is pure gravy. And the occasional bestseller has them laughing all the way to the bank. Things might go bad now and again, but the unending plethora of edited books is proof enough that we need not worry about their bottom line.

Now you might get the impression that my concern is with economic exploitation and “iniquity.” Not in the least. Royalties, if paid to contributors of edited books, would be derisory—enough to pay for a nice dinner (without wine). It is the restriction on our sovereignty over our works that riles me. As mentioned, I would have some empathy if I could imagine any scenario where subsequent use of such a piece, for example placing a version in a well-read journal (since edited books are in many cases cemeteries), would compromise the sale of the book or any other rent the publisher might obtain from it. I have discussed this at length with two of my publishers—they were unable to come up with any realistic scenario where this would be the case or any actual history where it was the case. I am willing to be educated but not by outlandish hypotheticals.

Yes, there is the issue of translation and publication in other languages. But if you consigned an article in English, why should you be asked to cede your rights in all other languages? Again, it is not about the money.  Having to obtain translation rights (over your own work!) for which the publisher will always extract their pound of flesh has a chilling effect on the possibility of translation. I speak from considerable experience.

So, what’s to be done? For many years I have adopted the same policy when confronted with these copyright forms.

1. I strike out the “all languages” clause and have the agreement apply only to the language of the chapter submitted.
2. I add three little letters to one word in the offending Clause 2.1 and its brethren. I insert by hand the word “non”, so that exclusive becomes non-exclusive. They still have all the rights they want, universally and irrevocably, and the editors of the book may, appropriately, give them exclusive rights to the book itself as whole. But I also retain irrevocable freedom to make any use I wish with the fruits of my labor.

Now, you might be thinking the following: You, JW, are an established scholar and you might get away with this, but not everyone is in that position. This is true. It might not work for young scholars at the beginning of their career. But there are hundreds and thousands of “established” scholars, and in practically every edited book there are a few of those old geezers. And of course there are the editors of the volume who are in a much stronger position than any individual author to negotiate a fair copyright clause for the individual contributions. If they, we, all routinely followed my practice or something similar, at least in relation to this form of publication, the oppressive draconian cession of rights would wither away.

JHHW

Festschrift? ‘That which is hateful to you, do not do to your fellow! That is the whole Torah; the rest is interpretation’ (from the Elder Hillel in Babylonian Talmud, Shabbat 31a)

I am creeping up to the age when some friends and former students have approached me with the idea of a Festschrift (Mélange, Liber Amicorum). Of course I was touched and moved by the expression of friendship and respect. But it took me no more than a few nanoseconds politely to decline, having Hillel’s version of the Golden Rule in mind.

It is an institution that has lost any real meaning in more than one sense. When is the last time you actually picked up one of those expensive tomes to read through it? When you are approached by the well-meaning organizers and “editors” (here’s another Golden Rule: do not expect anything more than copy editing in Festschriften) your heart sinks. Of course one cannot say No to an enterprise honoring a colleague whom you respect, oftentimes a friend. In a world where most of us are always behind with our writing commitments it is usually a considerable disruption. Not surprisingly, many Festschriften are replete with recycled writing, and understandably so. Are we expected to drop what we are doing and start some new research project and pen a new article because someone’s birthday is approaching? And then see it buried in a Festschrift, no matter how eminent the honoree? If most edited books are cemeteries, Festschriften are the Arlington National Cemetery of legal scholarship. Since there is a deadline which is connected to a birthday, it is hard to delay, so the pieces become even more rushed and the editing even more lax. If there is any honor in these tomes it is not in the content but, it would seem, in the list of names (My festschrift is longer than yours …) I have often wondered if the honoree himself or herself manages to wade through the whole thing beyond the Table of Contents.

I have done a quick unscientific check (the kind of stuff you can get away with if you are writing for a Festschrift): outside the German-speaking world, (where anyway you have a bevy of assistants to do your research for you) citations to Festschriften are scarce. And although the practice is changing, contributions to Festschriften are not as systematically entered into data bases and are thus less susceptible to contemporary modes of legal research. The cost of production is such—especially the heavy multi-volume ones, in which the world and his sister are invited to contribute—that not infrequently even the contributors do not get a free copy, given the prohibitive cost of the entire work (I always sigh in relief).  I am practically positive that no individual buyer has ever shelled out for a Festschrift.

If there is any interest at all in the work it is to see who’s in and even more interestingly who’s not. Sometimes one is told that “it is a secret”! I don’t always believe it and in any event if it really were a secret that is a risky path. Who may you have forgotten? Who might you have erroneously included?

I want to believe that at least some of you concur. So why does this plague still rain down on us? Mostly inertia I suspect and a practice which, alas, has become normative. A wish, perhaps, of appreciative students and friends not to offend or disappoint a beloved teacher or colleague by not organizing one? And, of course, Vanitas Vanitatum, the Human Condition in all its glory. But surely there are a myriad other ways to display respect and affection.  A simple card, signed by friends? Five words rather than five-thousand?

So here: Geriatrics of the World, Unite! Just Say No!

JHHW

In this issue

We open this issue with two commentaries which originated in the 2019 ICON-S conference: “Public Law in Times of Change?” First, Justice Luis Roberto Barroso reflects on how the Law has engaged with the ethical and legal challenges posited by technological advancements, the deterioration of democracy, and climate change. Second, Wojciech Sadurski focuses on the democratic erosion of Central and Eastern European countries, arguing that democratic backsliding can be relatively invisible and incremental, and discussing the implications for constitutional design and the “transition paradigm.”

The next section features the third I•CON Foreword article, authored by Neil Walker, who develops the idea of “sovereignty surplus” to rescue the concept of sovereignty from contemporary debates on the state.

The issue continues with a special section entitled “Reflections on Gender and Public Law: Eight Views.” In this section, Christopher McCrudden argues that the idea of “positive action” can be resurrected as a strategy for gender equality. Barbara Havelková focuses on Central and Eastern European post-socialist experiences and suggests that one of the reasons for the challenges confronting attempts to promote gender equality in those jurisdictions is the rejection of a constructivist perspective on gender in favor of a biological determinist approach.  Ruth Rubio- Marín addresses how certain nationalistic types of ideologies are gendered enterprises. Anna Śledzińska-Simon discusses the connections between gender, populism, and national identity. Julieta Lemaitre uses the Colombian 2016 Peace Accords with the FARC guerrillas to identify the challenges for a feminist perspective within issues of transitional justice regarding the construction of a “feminist peace.” Chen Chao-Ju advocates for a feminist agenda focusing on single women without children. Verónica Undurraga discusses the possibility that the Chilean constitution-making process might include a constitutional convention with gender parity. Finally, Stefano Osella engages with the civil status of individuals and presents the case for a genderless legal framework.

Our Articles section features two papers. First, Jan Petrov identifies and examines the challenges that populism poses to the European Court of Human Rights and reflects on the capacity of the Court to resist possible attacks. Tom Gerald Daly and Brian Christopher Jones then discuss the effectiveness of the constitutional tools that may be available to deal with political parties and party leaders that become a threat to democracy.

Our Critical Review of Jurisprudence section includes a paper by Marco Wan, who addresses recent developments on the issue of same-sex marriage in Hong Kong.

Next is a special section entitled “From the Trenches.” In this section, Sanjay Jain and Saranya Mishra critically engage with the response of the Supreme Court and High Courts in India in relation to sexual harassment allegations against judges who are members of those courts.

This is followed by three reports from the “The I•CONnect-Clough Center 2019 Global Review of Constitutional Law.”  The reports focus on Eastern Europe and summarize relevant constitutional developments taking place in Georgia, North Macedonia, and Bosnia and Herzegovina.

The last section comprises one of an occasional series of “Constitutional Surveys” in which Piotr Radziewicz, Monika Florczak–Wątor and Marcin M. Wiszowaty, present the results of a survey they conducted in Poland between 2017 and 2018, which canvassed the opinions of Polish constitutional law scholars evaluating the Polish Constitution.

Finally, in addition to our usual book reviews, we include in this issue a selection of book reviews dedicated to law and gender in the literature.

JHHW and GdeB

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[1] See https://hungarianspectrum.org/2020/03/21/translation-of-draft-law-on-protecting-against-the-coronavirus.

[2] https://www.bundespraesident.de/SharedDocs/Reden/EN/Frank-Walter-Steinmeier/Reden/2020/05/200508-75th-anniversary-World-War-II.html.