Running to the law to fix society’s problems is not the answer, says constitutional law expert Cindy Skach, whose new book offers a community-focused approach.
The standard image of a constitutional law expert is that of an elderly sage, residing in the uppermost floors of their ivory tower, engaged in a full but sedate programme of hair-splitting. So, please adjust your expectations for Cindy Skach.
There’s no getting around the fact that Skach is a former law professor at King’s College London and the University of Oxford. Nor that she is the author of Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic.
But Skach was also at the centre of a missile attack in Baghdad in 2009, which led to a considerable adjustment in her way of looking at things, outlined in her new book How to Be a Citizen: Learning to Rely Less on Rules and More on Each Other.
Partly prompted by her Iraq experience, the book advances the notion that current law-driven processes are not functioning well, and that more community-centred, ground-level decision-making will provide better results.
What was an academic doing in Iraq in the first place? “I was invited by the Iraqis and Kurds under the auspices of the United Nations Assistance Mission for Iraq. And the idea was, let’s bring out some scholars and some practitioners to think about fine-tuning this 2005 constitution.”
She relished the opportunity to talk the walk: “When you’re a professor of constitutional law, when you’ve been working and publishing about these issues as an academic, you really crave and cherish the moments when you can actually have some influence directly on the process of making higher law.”
Less welcome was the missile attack, although it has had positive unintended consequences. “The moment when our camp was hit by the rocket and we had to scramble to get out and so forth really made me reflect, not just on that experience, but on the decades before that.
“I have claimed and admitted that I always felt somewhere that running to the law to fix problems with society, at least the way we had been doing it, was not really the answer.”
But many people survive missile attacks without having their life’s worth of thinking turned upside down. What made her different? Skach prefaces the answer to that question with a caveat: “I was not thrilled starting with that example [of the missile attack] in the book, because it’s very, very sad – people are being blown up all the time, and we’ve got terrible violence across the world.
“So, it felt very strange to say, ‘Wow, I had this close call, and now look – I’ve changed my career.’ I think in some ways what people wanted – what they found useful – was for me to say there was a moment where I really, dramatically needed to step back from what I was doing professionally, rather than just say there was a trickle effect over the decades when I was losing my religion as a law professor. I think both are true, really. So they both came together.”
Addressing directly the question of why the event had that effect on her, she goes back to her childhood. “I think it has to do with my upbringing. Both my parents had English as an additional language. For my mother, it was Polish; for my father, it was Czech.
“It was a pretty mixed neighbourhood, and a complex area of Chicago. Diversity was what I knew from an early age, and you saw that people had to figure it out. You had to make it work. “For the religious communities, there wasn’t a lot of space. So, you had the Polish immigrants and the Latino immigrants sharing the Catholic churches. You had to find these ways of co-operating.
“I think I had some of that already in the background – how do we make it work ourselves, because no one else is going to do it for us?”
Constitutions, however, are supposed to do just that – work it out so people don’t have to do it for themselves, wherever they are. Skach now doubts that will work, for several reasons.
“It feels sometimes insane to have these comparisons between a place like Iraq and then a place like the United States, which are on completely different levels in so many ways, and say that the answer to both is a kind of top-down hierarchy of laws.”
That’s unconstitutional
For the US, its constitution and the stability it is believed to support have been a source of pride and a key component of national identity. And yet, “It’s a very rigid constitution. It’s difficult to amend. But we also see lots of reversals of really important decisions recently by the Supreme Court.
“Politicians come up with legislation and policy, and then you’ve got the judges saying, ‘Well, wait a minute. That is not really consistent with our constitution.’ So, people have said, ‘Is this really law by judges, or is it law by our representatives? And which one do we want?’ And do we even want law in the form we know it as the go-to mechanism for how things get done?”
Skach describes her views as heretical. But around the world, the customary ways of doing things are not having the results the world needs. In long-stable places, things are falling apart. Democracy and the rule of law just aren’t doing the business. So, what will?
Skach is at pains to point out her book is meant to be an invitation to a dialogue. “It’s not meant to give answers, per se. It’s meant to say: ‘What do you think? What do you want to do?’ And to reach out to some of my former colleagues in law and say, ‘Did we really get it right?’”
Those colleagues have not been slow to respond. Reactions have been “quite polarised. You’ve got some of the traditionalists, who start with the idea that human nature is very problematic, so what else do we have? Jonathan Sumption [former UK Supreme Court judge] in his review in the Telegraph was, like, ‘Well, she’s got the problems right, but in terms of the solutions, democracy is still the best out of all the alternatives.’ But others have said, ‘I’ve also had this kind of existential questioning of the law and our allegiance, genuflecting in front of the law and leadership.’ And so that’s brought me back in contact with a few people that I had lost contact with over the decades. And we’re thinking together of ways that we might come in between.”
I think we’re going to have to start re-educating an entire generation to think more about these issues of empathy and connection and not relying so much on leadership.
Finding common ground
Whatever the precise form of the solution, Skach thinks it will involve a process that is more bottom up than top down.
Asked what life would look like in such a world, she gives simple examples from her own experience. A key concept is the piazza, which historically has been a public space where a variety of citizens come together somewhat randomly, congregate, and share conversation, ideas and experiences. Living in Oxford, the local school provided the piazza.
“… School playgrounds, in particular, are really interesting piazza, where you’re getting together people who are from different areas and from different backgrounds, and they have an opportunity to start talking about something that they have in common, which is the kids in the school.”
In Oxford, it turns out, just like in many parts of New Zealand, “traffic is really bad” and a problem people share, “so, little by little, you start to find other common ground, and you’re weaving a fabric of common knowledge and a basis for co-ordination. So, if you wanted to raise an issue with the local authority, you’ve got some background, and you know each other, so it’s not just strangers coming together.”
But then the school declared it had to close the playground as soon as school ended and people had to disperse “for legal reasons to do with insurance”.
“Reaction wasn’t good and I think they’ve relaxed that a little bit, but those are the kind of ideas where it seems simple and almost insignificant, but it can actually be very powerful.”
Forceful personalities
Though the thrust of How to Be a Citizen may sound part EM Forster’s “only connect” and part Jacinda Ardern’s “be kind”, a lot of it is Skach’s own thinking, which she focuses in six areas: leadership, public education, race and immigration, the environment, community and fundamental rights.
“They overlap a lot,” she says. “So, the idea of sharing – if you can be a little bit autonomous from the state, we’re going to be relying less on the supermarkets, and that’s going to be relying less on commercial agriculture. It’s going to be improving the environment. At the same time, if you’re sharing, you’re starting to build up that idea of the piazza, maybe in a very micro way.”
Again, the example from close to home: “My daughter and I have proposed that we have a vegetable sharing [operation] on the road. We live in terraced housing in a typical English road, and every house looks the same. One gets confused sometimes: Am I coming home to my house or not? But when you go behind those doors, you see that we’re all really different in terms of age, in terms of background, and so we thought it would be great if we just get together and share what we have and talk.
“There are lots of ways to apply these things, even on a small scale, but you hope that together those will grow to form some kind of stronger fabric for the society. And that’s all I’m asking.”
She admits this is radical and knows it could be dismissed as utopian. She is not proposing a variety of philosophical anarchy in which we all start acting in the ways we think are best and everything will all shake down just fine.
As far as law itself goes, “We do have to have that framework, but we should work towards it being the understudy in our daily drama, so that it’s there when we really need it. We don’t need to rely on it on a daily basis or hide behind it like we have so far.”
She quotes the cynical quip often attributed to 19th-century German chancellor Otto von Bismarck: “Laws are like sausages – it is better not to see them being made.”
“That’s really dangerous. It’s true, unfortunately, because people don’t want to know what the process is; they don’t want to see all the bargaining that happens behind closed doors. And yet, I think that’s how we get ourselves into a lot of these problems.”
Empowering people
Meanwhile, back in the piazza, voices are being raised. Without the law as we know it, what are the mechanisms to stop the most forceful personalities and the loudest people dominating these conversations?
“There’s always the question of the natural leader that emerges, either because people are too shy or they’re too insecure, or they’re neurodiverse [and] not fully participating. One way to do it is to make some of our spaces a little bit more welcoming to people who are not the kind of go-getter leaders.”
She says we need to empower people who don’t like power. Another example – this time from the PTA. “There may be two or three people who, on their own, wouldn’t say, ‘Well, just wait a minute, because we’ve got other ideas.’ [But] when they’re together, as a little coalition, the coalition can start to say, ‘Let’s wait.’ And people will back down, especially if they get a sense that they’re not going to be followed and be the natural leader.”
Not that any of this is going to happen in a hurry, as the modesty of Skach’s first steps indicates. “This is going to take some time. I don’t think it’s going to be my children’s generation where we see change.
“Because I think we’re going to have to start re-educating an entire generation to think more about these issues of empathy and connection and not relying so much on leadership. Obviously, we’re moving at an incredible rate already – look at people with climate change. It’s kind of in our faces, so we are taking action.
“I don’t think it’s impossible that the change will come, but I’m not going to say it is something that happens overnight. Look at the United States; people do not want to give up power. There’s a lot of hard work to be done, and there will be a lot of resistance. Power is very seductive.”
How to Be a Citizen: Learning to Rely Less on Rules and More on Each Other, by CL Skach (Bloomsbury, $61), is out now.
