Outgoing Professor Ernst Hirsch Ballin: ‘We must continue to speak out against injustice’

Anglophone dominance in scientific world

‘While this kind of internationalization is a good thing, it does come with a somewhat one-sided orientation on academic styles originating from the anglophone world. This has weakened our connection with colleagues from Asia, Latin America, and Africa. Scientific research relies often on standards borrowed from American examples, at the expense of our connections with European countries. Students by and large no longer read French and German anymore, yet these languages are crucial to understanding law and philosophy. American pragmatism has gained the upper hand in thinking about economics, law, and society.’

He is more positive about the less individual, more interdisciplinary development of scientific pursuit, which has forged stronger connections and improved cooperation between researchers. Also, Tilburg researchers have begun to consider more carefully the demands they make of each other in terms of education, didactical skills, and methodology. ‘Pure gain’, he calls it.

Never stopped learning

‘I have always felt so very welcome at this university. I had just turned 30 when I accepted my chair here in 1981, and the university was a small community; colleagues from other Schools, such as theologians, economists, and sociologists, were present at my inaugural address. Meetings with them turned into intense exchanges that we continued at home. But quite soon I was asked to serve the government in advisory capacities. I wholeheartedly accepted and that line of work has taught me a great deal. In fact, I have never stopped learning! I was subsequently offered, but did not seek, the position of Minister of Justice. When the late Ruud Lubbers was forming his third government, I tried but failed to not become involved; I so enjoyed working at our department. But I clearly remember meeting Senator Madeleine Leyten on the train, who told me: ‘Surely you can’t think you can make yourself invisible!’ And two days later I met with the formateur.’

Two great loves

Science and politics are, by his own admission, two great loves of his. Only a few months ago he published a paper for the Netherlands Scientific Council for Government Policy (WRR) about human rights and artificial intelligence (AI). AI poses risks to privacy, he cautions, yet at the same time, when used properly, algorithms offer opportunities to promote human rights (as Tilburg researchers do at the Zero Hunger Lab). And human rights are a common thread in his work.
‘I find it hard to picture myself as anything other than a jurist, and I could not be a career politician, but as a researcher I have never lived in an ivory tower, lacking social engagement. As a law student at the University of Amsterdam, in the 1970s, I became a member of the newly democratized School Board. From the start, my interest in governance had gone hand in hand with my interest in public law. And when I had all but completed my doctoral dissertation, I joined the Ministry of Justice. Scientifically, my administrative and political positions could be qualified as participatory observation. When my political role ended in 2010, my social engagement did not end with it.’

Citizens have a right to protection

Savoring his professional reminiscences with obvious relish, he singles out two.
‘My work testifies to a constant interaction between politics and law, and it has given me a clearer understanding of how the administrative legal system works. When in special cases asylum dossiers were submitted to the state secretary or me, we would sometimes reach different conclusions – in the interests of both the foreign national and society – than those originating from regular work routines. That experience strengthened my conviction that legislative change (in 2010) was necessary to define the court’s duties more broadly. In a preliminary advice I wrote in 2015 for the Administrative Law Association (VAR) I advocated intensifying judicial review. This recommendation was informed by my experiences at the Council of State.’ 

‘As for my academic work, I fondly and in gratitude recall working with many people here in Tilburg. In the 1980s a group of us pioneered comparative legal research, taking some crucial conceptual steps and developing the idea that the government – contrary to a view commonly held of public law – does not give unilateral orders to citizens but entitles them to protection and reciprocity in administrative law. We in Tilburg were the first to publish about the proportionality principle – brought to the fore by recent political upheaval on childcare allowances – and our work is since 1994 reflected in the General Administrative Law Act.’

Insufficient counterbalance to forces undermining core values of the Rule of Law

The many years of interacting with people in politics, the Council of State, the judiciary, and the university have allowed his thinking to evolve over a long time, Hirsch Ballin says. ‘We should resist historical oblivion. For example, at the university we could greatly benefit from historical research; it is essential to a proper understanding of constitutional law as a discipline. The wording of some provisions in the Constitution has not changed, but their meaning has, often quite considerably. Understanding history and narratives about history is fundamental to a proper understanding of the values that matter to society.

Awareness of the past has been a constant

Dutch politics lacks a strong counterbalance to forces that label groups of people as the enemy, and that is where our core values are at stake. These forces have come closer to the surface as economic thinking changed at the end of the last century and following the retreat of the welfare state. Some people find themselves in a precarious socio-economic situation and do not feel adequately protected by the Rule of Law currently in place. This has freed the way for politicians who scapegoat certain groups. If we do not speak out against them, the values of our Rule of Law as a social Rule of Law stand to suffer.

Our Rule of Law is a social Rule of Law

The classical formal conception of the Rule of Law no longer suffices; human rights have become increasingly important. Not only those that ensure freedom of worship and speech, but also those that safeguard people from want and fear – the four fundamental freedoms proposed in 1941 by the then U.S. President Roosevelt. This implies a social order that allows people to live without fear: inclusiveness that must be pursued everywhere in the world. The idea that none must be excluded is foundational: human rights are predicated on it. Idealistic though this may sound, making human rights a reality is conditional on it, because it requires vision.’

This conviction is rooted in his youth, Hirsch Ballin says. ‘Without knowing the past there is no way forward. We are people who find support and protection in the full range of human rights, including social, economic and cultural rights. When engaging with this issue, it helps to remain alert.’ 

It is no surprise, then, that he considers justice and fighting injustice the drivers of both his academic and his political work. Hirsch Ballin, whose Jewish father had survived the Nazi concentration camp in Buchenwald, but who lost close relatives in the Holocaust: ‘Awareness of the past has been a constant. Otto Frank would visit my father at home; I met hem when I was just nine years old. Our families share a cultural biotope: Wiesbaden and Frankfurt. When I was invited to join and later chair the Anne Frank Foundation Supervisory Board, that was a compelling reason to accept. Neglect of history, obliviousness of concerns for the future, and inadequate education are threats to new generations. That is why we must continue to oppose injustice.’

Professor Ernst Hirsch Ballin will go into retirement as of January 1. Because of corona his lecture is postponed until May 13, 2022.

(ByTineke Bennema)