The five ideals as discussed in a previous post (A Preliminary Note on Five Scholarly Ideals) are as follows.
1. Development and pursuit of original knowledge for its own sake
2. Preservation, refinement and transmission of the best forms of knowledge
3. Objective social critique
4. Individual activism
5. Collective activism.
Among the five ideals, I suggested three versions of the university scholar’s ideal–the critique of society for purposes of its regeneration and improvement, individual activism, and collective activism—that are aimed primarily at creating a fairer and more just society within the scholars’ frame of reference. As with any approach it is possible to use the methodology in ways that corrupt or undermine its core thesis. Abandoning commitments to such values as truth, accuracy, rational discourse and balance undermines the legitimacy of work purporting to advance the purposes of an ideal. Claiming that one is doing something that fits those commitments while hiding behind masks of elevated rhetoric is an hypocrisy that risks destroying the legitimacy of the specific undertaking itself while distorting the mission of the university world in regard to its commitment to truth, evidence, fairness and open discourse. 
Arguments have even been made by some of the most activist scholars that such commitments are themselves mechanisms of repression and that concerns with truth, evidence, critical but fair analysis and honest discourse are the products of centuries in which those in power, i.e., “white males” have used such tools to maintain their dominance and discriminate against others. Taking this position within the university means that politicized, ideological, arational and self-interested writing becomes “scholarship” when in fact it is too often what might be called “fugitive rubbish”.
Another element of some of this critical scholarship is that, as Seth Stephenson writes, the power to condemn is seen by the activist collectives as a one-way street. This has been demonstrated in university speech codes that reflect many academics’ and an increasing number of students’ agreement with the suppression of open discourse do to reasons of claimed insult, insensitivity, hurt feelings or the giving of offense. Following this path confers a veto power to individuals and groups that have increasingly stifled social communication while accelerating and intensifying the fragmentation of American society. Stephenson argues, “These [university speech] codes have their roots in theories, which gained favor with campus radicals in the 1960s, contending that ‘[i]f the powerful and the weak were required to play by the same rules the powerful always would win.” In other words, this theory goes, the disadvantaged need different rules. What’s more, these rules should extend to speech, not just to actions, because speech can be just as powerful and hurtful.’” Such intimidation of speech by aggressive and angry political movements have spread well beyond the Ivory Tower [although universities have been complicit in the process] to the extent our social discourse has been poisoned and virtually all our speech is characterized by slogans, stereotypes, propaganda and distortion even to the point of lies.
Red Giselle, Russia and the Power of Love
The distinction between the five scholarly ideals can be understood through an analogy to ballet. When I first taught in St. Petersburg, Russia a wonderful part of the experience was the opportunity to see a stimulating variety of classical and modern Russian ballet performances. Few would argue with the assertion that classical ballet in Russia is an exquisite experience performed at the highest level of artistic talent. In a sense, classical ballet is a sort of “time machine”. It offers the finest traditional forms of the balletic art to new generations, allowing audiences in the twenty-first century the same experiences enjoyed by theater attendees in 1755. The music, choreography, costumes, gestures and dance movement are identical to those of centuries earlier. This can be equated with the spirit of the second ideal of the university–the preservation and sharing of the highest form of knowledge in a manner that recognizes its worth and connects our culture and civilization across generations and centuries.
Of course, classical ballets were also innovative, creative and “new” when first offered, helping to construct new forms of the art and changing the culture within which they first appeared. This reflects some of the inevitable tension between what are being called the first and second ideals–the efforts to discover and create new knowledge and forms and the search for perfection in refining existing knowledge. The difference in perspective was captured as well as any in Ricky Nelson’s song Garden Party in which he laments the audience’s negative reception of his new songs by singing, “If memories were all I sang, I’d rather drive a truck.” The ideal of creating new knowledge cannot be stated any better.
The contrast between classical and modern ballet also helps clarify what I am talking about in the context of the knowledge role of the university and the various ideals that apply to the work of university scholars. Modern ballet is not better than classical–it is simply a different form. On one hand it is an interpretation of what is, and on the other an entirely new creation. But while modern ballet may shift the music, rhythms, themes, movements and the like, it still is derivative in that it takes from and depends on the underlying technique and ethos of ballet. But while the commitment to the underlying art form and staging at its highest quality remain essential elements, modern ballet also extends the form and even creates a new variation. It is therefore an experiment, but one that operates within the commitment to discipline of ballet and the technique of ballet. This is consistent with another ideal of the university–the quest to discover, create and develop–and a look to the future instead of the past.
In order to explain more specifically what I consider to be the differences between the five ideals I offer the work of Boris Eifman, a Russian creator of modern ballet with whose work I was enthralled when teaching in St. Petersburg. Eifman created adaptations of existing balletic works I consider brilliant in their scope and quality. Of the five Eifman ballets I saw in Russia one was called Red Giselle. Red Giselle focused on a ballerina who was caught in the transition from Tsarist Russia to the Soviet Union, including the darkness, repression and terror. In this work Giselle was loved by an agent of the Cheka, the forerunner of the KGB, and used her power as a seductive woman just as the Chekist used his power as an agent of the state. Red Giselle communicates the abuse of power and manipulation of humans, as well as the power of love as the Chekist allows Giselle to escape to Paris even though he wants to hold her for himself.
In Red Giselle, Eifman uses the power and technique of the ballet to convey powerful messages about people and power and people in power. The work is a critique of the darkness of unfettered power even while offering a glimmer of hope in the ability of even key parts of the state to retain parts of their humanity in a regime committed to inhumanity. Red Giselle illustrates a critique of society by its creator, Boris Eifman, and is consistent with the third “individualist” ideal of the university. But Eifman’s own commitment is still grounded in technique, quality and excellence of the form–with the added element of a powerful message.
The differences as we move from the ideal of social critique to those of individual and collective activism are relatively easy to set out but difficult to know where to draw valid lines. In Red Giselle, for example, we admit there is a political and moral critique that is wise to heed. In a sense this can even be seen as a new form in which traditional knowledge is being conveyed so that perhaps it is a reminder or reaches new ears in a different and more powerful form. In this artistic vehicle it penetrates the psyche at a point other than the rational and can therefore be more deeply embedded.
Most of us also know at some level that government always tends to abuse power if left unrestrained. And we also know that the Soviet period carried with it severe abuses of power entirely inconsistent with its professed ideals. So Red Giselle as performed at the beginning of the Twenty-first Century builds on knowledge that is not new, even though it uses a newer art form as the vehicle through which to communicate its message. In the Russia of the present day Red Giselle is a reminder of the dangers of uncontrolled state power. But it is safer to voice the message at this time than at the height of the former Soviet Union. At least it was safer before Vladimir Putin consolidated his control and began to shut down Russia’s instrumentalities of social criticism and free speech.
A very different situation is created if we move Red Giselle back in time ninety years to 1923 when the conditions portrayed were contemporaneous. At that point Eifman’s work is not simply a new variation on the balletic art form or a cautionary political warning against a regressive form of government but a direct confrontation with the early Soviet regime it would have been attacking. Even in 2000 when the new Russia was in a state of potential collapse with calls for a return to some strong man leader who would help recapture the stability and power of the Soviet Union, Eifman’s message was a reminder of the dangers of the Soviet system. Nor is it hard to envisage a reaction against Eifman by those seeking a return to the Soviet era. In 1923, however, Red Giselle would either never have appeared if created, or would never have been created inside Russia. If it had been we should expect Eifman to be quickly convicted of the ever-popular “crimes against the state” and eliminated one way or another.
Assume, however, that the 1923 fictional Eifman created the work and realized that it would never be allowed on the public stage due to its subversive nature. But being opposed to the Soviet State he wants his message to be communicated to those who share his perspectives and to educate others who may be willing to listen. So rather than try to present Red Giselle to the general public Eifman offers his ballet in private homes, in rural villages, and other hidden venues in order to convince others of the dangers of the USSR and the need to destroy or reform it. I suggest this describes a venture driven primarily by the message he wants to convey to the relevant political community in which he hopes they are moved to act, not by the balletic form itself. Here we have the individual activist ideal of the university.
Now shift this approach slightly to one in which Eifman creates a group of ballet composers and convinces them to orient their works around the common theme of abuse of power by the Soviet government and the need for reform or revolution. The members of this new movement look at each others’ works and think about how they can be adapted to send the desired messages most effectively. Their focus is no longer primarily on the ballet as art form but on the message that can be sent through the use of the form. This, I suggest, represents the collective activist ideal which uses the art form to shape and communicate powerful messages and in which the form is primarily a means to an end rather than an end in itself. Similarly, the message is shaped by the collective rather than as an independent and creative act of the composers. Here also, the “truth” of the message being communicated is accepted a priori and the collective members are designing ways in which the greatest impact on the selected problem is achieved rather than concentrating on the quality of the underlying art form.
But what do we say if the power of the art form is controlled by the state and is used as a way to inculcate the supposed legitimacy of its rule to all citizens? When this happens we call the process propaganda because there is only one acceptable point of view and others are suppressed, deviants are eliminated or “re-educated”, and the collective is intent not on the creativity of the art form but on its use to compel adherence to its point of view and acceptance of its sovereignty.
Law, Power, and Legal Scholarship
Law is a form of politics made concrete. It both reflects and generates political values and positions in ways that, in a complex Rule of Law society that has lost its shared values and ability to communicate and negotiate based on commonly held norms, is an engine that creates and allocates power and duty. Oddly enough, many of the interests that are now relying on the Rule of Law as the justification for their positions would be complete “losers” if their arguments and institutional manipulations were not successful. “Law”, writ large, is the only thing that underpins such issues as gender and sexual rights, racial preferences, wealth redistribution and so much more. Given the character of law as the (theoretical) source of value and the instruments of implementation it is inevitable and appropriate that legal scholars are political theorists and critics. They are responsible for expressing their carefully developed insights through the mechanism of legal scholarship. The problem is that the discourse has become unbalanced and the discussion one-sided.
Law is a manifestation of power and the best scholarship done by law school academics inevitably relates to the exercise of the power and force of law. Lawrence Friedman explains the connection thus: “it is through law, legal institutions, and legal processes that customs and ideas take on a more permanent, rigid form. The legal system is a structure. It has shape and form. It lasts. It is visible. It sets up fields of force. It affects ways of thinking. When practices, habits, and customs turn into law, they tend to become stronger, more fixed, more explicit.” Explaining, critiquing, influencing and challenging the aims and interactions of law and power are the primary responsibility of legal scholars, that which legitimates their claim to tenure and privilege within the university.
The reality of group behavior is that power is defended if one possesses it, sought if one desires or needs it, and undermined when the scholar and the reference group with which a scholar identifies successfully engages in a strategy of “softening up” the foundation principles and assumptions of competitors. In his book, Power, Adolf Berle warns that control of institutions is the only way by which people can extend their power beyond the limited reach of their fists or guns. Those collective identity groups that are seeking to capture the ability to dictate rules to others or to protect themselves against others’ control create strategies to gain possession of the institutions that make and enforce the rules or laws.
While it is appropriate and necessary that legal scholars include the political in their work, including the politics of justice and a critique of unjust elements of the system, it is inappropriate that scholars become so possessed by the political that they lose their fragile objectivity in the passionate embrace of political agendas. Our job is to understand and critique the political dimension of law, not to become the politics themselves. In many of its aspects law is a form of “applied philosophy”. A result of our succumbing to the lure of the intensity and celebrity of the political sphere is that we have gone from a pseudo-intellectual culture characterized by a false claim to Langdellian science to an incoherent melange without a core methodology or standards of evaluation.
 Marcel writes: “The first … observation to be made is that the fanatic never sees himself as a fanatic; it is only the non-fanatic who can recognize him as a fanatic; so that when this judgment, or this accusation, is made the fanatic can always say that he is misunderstood and slandered.” Gabriel Marcel, Man Against Mass Society 136-137 (1969).
 Martha C. Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education 19 (1997) (“Socratic argument is suspected … of being arrogant and elitist.… [T]he elitism is seen as that of a dominant Western intellectual tradition that has persistently marginalized outsiders. The very pretense that one is engaged in the disinterested pursuit of truth can be a handy screen for prejudice.”
 Seth Stevenson, “The Thought Police,” January 2003, available at http://www.bostonmagazine.com/articles/the_thought_police/.
 Lawrence Friedman, American Law at 257.
 Adolph A. Berle, Power, at 92 .