In my last post, I addressed those who fail to understand why anyone would object to funders mandating CC BY licenses for all publications that result from research they support. There, I made a distinction between those who support CC BY mandates because they fail to understand objections to CC BY and those who fully understand the objections but support funder mandates of CC BY regardless.

I hope that the vast majority of those currently willing to impose a CC BY mandate as part of Plan S suffer only from a failure to understand why someone might sometimes object to a CC BY license. I fear that some, however, fully understand why someone might sometimes opt for a different license and yet feel fully justified in mandating CC BY for everyone, always. Those who understand the objections to a CC BY license mandate, yet fail to take those objections into account, are guilty of embracing domination.

I also promised a second post in which I address those who understand objections to funder CC BY mandates, yet support them nonetheless. This is that post (hence, ‘part 2’ in the title).

ON DOMINATION AND NON-DOMINATION

The language of ‘domination’ is not mine. I take it from Philip Pettit, the leading proponent of what’s sometimes called neo-republicanism. Neo-republicanism is a political theory that proposes the notion of non-domination as a sort of regulatory ideal. For those familiar with Isaiah Berlin’s “Two Concepts of Liberty,” with its ultimate defense of ‘negative’ over ‘positive’ liberty, I take Pettit’s notion of non-domination as further thinking along the same lines. Freedom as non-domination is a version of positive liberty that allows us to overcome Berlin’s argument in favor of negative liberty (or freedom as non-interference).

I issue some caveats.

First, I am not a Pettit scholar. I am not offering here the authoritative reading of Pettit. I don’t know whether Pettit would agree with my reading of him. I don’t know of any places where Pettit discusses academic freedom (but if anyone does, please let me know). I am taking Pettit’s ideas, offering my own interpretation of them, and applying them to the ongoing discussion of Plan S. There are some obvious disanalogies between being a citizen of a republic and a member of the scholarly community. So, insofar as I warp Pettit’s views, please blame me, not Pettit.

Second, I don’t want this post to turn into a philosophic tome. I will endeavor to offer the simplest reading I can of the notion of freedom as non-domination and how it applies to the discussion of Plan S. Again, any resulting distortion of Pettit’s views are my fault.

Third, I am specifically addressing the CC BY mandate of Plan S. I am not arguing against all funder mandates, nor am I arguing against open access to research (or even against Plan S). I am not arguing that the current publishing system is great. I am not arguing that no one should ever publish under a CC BY license. I am arguing that the CC BY mandate should be removed from Plan S. In addition, I also think that mandates, in general, should not dominate the population to which they are applied.

Here’s a short video of Pettit himself discussing the idea of freedom as non-domination.

The basic idea is that we lack freedom insofar as we are subject to another’s will. A slave is not free, even if the slave is subject to a master who never interferes with the slave’s choices or actions. Simply being subject to the will of a master (dominus) renders the slave subject to domination, even if the master never exercises that power. According to the neo-republican conception of freedom as non-domination, then, a slave is not free, no matter how little their master interferes in their life.

This neo-republican account of freedom as non-domination is a version of positive liberty, which Berlin ultimately rejected in favor of his notion of negative liberty, or freedom as non-interference. According to a negative liberty view, as long as the master didn’t interfere with the slave, the slave would be free. According to Pettit’s view — and my own — some measure of interference is actually compatible with freedom as non-domination.

NON-DOMINATION AS A LIMIT ON INTERFERENCE

Berlin argued in favor of negative liberty because he saw a danger in positive liberty — it can be co-opted by totalitarian impulses.

Since, as Berlin saw, positive liberty allows for interference, I can be interfered with under the guise of that interference being an actualization of my freedom. If I want to make Great Britain great again, I have to support Brexit, since that is the general will of the people (we voted leave, so I have to get on board; and not doing so would make me an enemy of freedom — including my own!). The only possible antidote to this sort of totalitarian rationalization, according to Berlin, was to reject the notion of positive liberty as ‘freedom to _____’ (where the blank may be filled in as the general will decides) and embrace the notion of negative liberty as freedom from interference.

Pettit actually redescribes the notion of positive liberty that Berlin rejects in negative terms. Yes, Pettit suggests, freedom is a negative ideal; but instead of freedom from interference, it should be understood as freedom from domination. This allows Pettit to maintain the classical (positive liberty) republican idea of freedom as self-determination, without abandoning us tout court to the general will (which, after all, as Berlin clearly saw, can easily be co-opted).

According to Pettit’s notion of freedom as non-domination, then, I can tolerate interference as long as I’m not being dominated, or subjected to another’s will. Non-domination thus marks the limit of acceptable interference. Advocates of negative liberty also have to admit that a certain amount of interference is necessary — just enough to prevent me from interfering with others, so that the limits of my freedom can be found where my freedom limits the freedom of others. Of course, to an advocate of negative liberty, necessary interference is a necessary evil. A neo-republican, on the other hand, can tolerate quite a bit of interference, as long as it doesn’t rise to the level of domination.

In short, I have to have a say in the laws to which I am subject, such that the imposition of those laws does not dominate me. This doesn’t mean I have carte blanche to reject or disobey laws with which I don’t agree. If I am a member of a constitutional republic (which, as a US citizen, thankfully, I am), some decisions will go against me (alas). But Donald Trump is still my president, even if I voted for a different candidate. The results of that election don’t amount to domination, because I don’t feel I’ve been disenfranchised. Likewise, I pay taxes, both because it’s the law and because I feel I should, even though I don’t like it — again, no domination.

I accept the result of decisions or policies and follow laws, even those that go against my own wishes, just insofar as I don’t feel dominated. As long as I am not dominated, I tolerate the interference. This leaves open the possibility that one could justifiably reject decisions under which one did feel dominated (if I felt my vote weren’t counted, if I were part of a group that had been systematically disenfranchised, if government failed to provide equal protection under the law, if people in government were not subject to and didn’t follow the law, and so on). But votes and policies that go against my wishes without dominating me are simply what Pettit terms ‘tough luck’.

That I feel dominated is a sign of possible domination, but it’s not the only factor. I could be mistaken and shown to be mistaken. Maybe I feel dominated, but I should really accept the result as tough luck. We should be able to determine, in principle, whether a decision we don’t like is a matter of domination or just tough luck. How one goes about that process will depend in many ways on the context. But whether one is dominated is a matter of fact, not simply a matter of opinion.

THE PLAN S CC BY MANDATE AS DOMINATION

There are several ways in which the Plan S CC BY mandate makes me feel dominated.

First, I don’t have a vote. I grant that membership in the scholarly community is disanalogous to citizenship in a state in myriad ways. So, I shouldn’t necessarily expect the same sort of representation I have in government from my membership in the scholarly community. Public funding agencies are strange, half-government-half-academic beasts. But there are rules and norms — and even in some countries, laws — governing the relationship between the state and the academy. For the sake of brevity, let’s group all of these under the rubric of academic freedom.

Setting aside the specifics, that there exists academic freedom in general signals a special sort of relationship between government and academic institutions. Some think academic freedom means non-interference. I never have.

There are myriad ways in which the state can interfere with academic institutions and academics that do not constitute violations of academic freedom. The state can make laws or policies about how research money can or cannot be spent (a prohibition of spending public funds on alcohol or bribes or baubles, for instance); the state can make laws or policies about responsible conduct of research (requiring research on human subjects to undergo IRB review, for instance); the state (or in the US, the states) can make decisions about how much funding to put into university budgets. The list goes on. These sorts of interference do not constitute domination, in my opinion, because academics support them, of our own accord. No academic I know, for instance, would seriously argue that academic freedom implies the freedom to abuse human subjects of research.

As someone sympathetic to the neo-republican notion of freedom as non-domination, I think self-determination is vital to academic freedom. If we compare institutional OA mandates on which faculty have voted with funder mandates that some researchers resist but on which they don’t have a vote, the former respect academic freedom and the latter don’t. That’s because, in the former, the faculty voted to give themselves a mandate. For those who voted against the policy, it was just tough luck. But when we have no ability to vote, as in the case of funder mandates, we are subject to the will of the funders.

Second, on top of the fact that I don’t have a vote, I am worried that I don’t even really have a say. Although I was granted an audience with Robert-Jan Smits and Marc Schiltz and have had conversations online with them (see comments), both of which I appreciate, nothing I said seems to have made an impact. We went from Plan S, to a conversation in which they told me they heard my concerns about the CC BY mandate, to draft guidance that’s unresponsive to my concerns about the CC BY mandate. Unfortunately, I now don’t have high hopes that offering feedback to the draft guidance will have any effect, either.

Compare the cOAlition S request for feedback with what happened when the Common Rule (the US regulation governing research on human subjects) was revised. In the US, comments received detailed responses and quite often changed the proposed policy. When suggested changes were rejected, a detailed rationale was given. Can we expect those sorts of detailed responses to feedback from cOAlition S? Can we expect the implementation guidance to change much? I doubt it.

Maybe they considered my arguments and rejected them, without going into detail as to why (although that wasn’t the impression I was left with after our meeting). Maybe I’m the only one making this argument about the CC BY license mandate. But the mandate negatively affects a group — albeit a small one compared to researchers in the sciences — of researchers across the humanities (and perhaps others in some other fields). I’m not arguing only on my own behalf.

Third, I am not the only one who seems to have an issue with the CC BY mandate. In its response to Plan S, the British Academy writes:

All surveys of HSS academics indicate a substantial majority who will insist on the inclusion of a ‘No Derivatives’ (ND) element in the licence for any OA publication. The Academy thinks their concerns are fully justified.

ALLEA, a federation of almost 60 academies from 40 countries around Europe, writes in its response:

As stated in previous statements, further consultation with the research communities is needed before a licensing model is agreed upon and any
prescription should leave some choice as to the type of open license to adopt.

Insofar as the CC BY mandate systematically discriminates against a minority group of researchers, it dominates us.

Finally, and this is the most disturbing evidence of domination, there appears to be a group of my fellow researchers that views the preceding considerations as irrelevant. Some of them, at least, have fallen prey to the potential corruption of positive liberty that so concerned Berlin. They have slipped into totalitarianism. If we want to make science great again, we are told, supporting funder mandates is the only way to go.

I am not suggesting that every researcher who supports funder mandates doesn’t care about dominating other researchers. I, too, support Open Access. I support some aspects of Plan S. I even support some funder mandates, including some in Plan S, as long as they don’t dominate researchers. Ideally, funder mandates would be crafted to empower researchers.

The CC BY mandate, however, must go. The CC BY mandate must go because it dominates a group of researchers who have legitimate interests in opposing mandatory CC BY licenses. No mandate that dominates a group of researchers in that way should stand; and no researcher should stand for mandates that dominate a group of fellow researchers.

The CC BY mandate must go because it also contributes to totalitarian tendencies among a portion of the research community that sees only one way to achieve Open Access — funder mandates — and Open Access as only one thing — that which meets the definition provided by the Berlin Declaration. Funding agencies should not support such tendencies. Funders should listen to concerns expressed by the researchers they fund, especially when those concerns are expressed by a minority group of researchers.

Above all, my fellow researchers should think again before they suggest that funders mandating CC BY is the only way I can truly be free.

PASSING THE EYEBALL TEST

When Pettit discusses the eyeball test, which he introduces (along with the tough luck test discussed above) as a “user friendly” test of non-domination, he does so from the perspective of a potential slave.

The eyeball test requires that people should be so resourced and protected in the basic choices of life — for short, the basic liberties — that they can look others in the eye without reason for fear or deference.

If I can look you in the eye, then, it’s because I am not, and needn’t fear, being dominated by you.

I think we academics share a sense of basic equality as academics (i.e., we typically assume that those with terminal degrees in physics or chemistry are no more deserving of respect than those with terminal degrees in philosophy or the arts). In general, then, I think we pass the eyeball test and should expect to be able to do so.

But there seems to be another aspect to the eyeball test that Pettit doesn’t discuss — the view from the perspective of a would-be dominus. If, assuming that fellow academics deserve a basic equality of respect, we attempt to dominate some subgroup of academics, would we be able to look them in the eye? I think not. I could do so only if I were comfortable dominating them and I expected them to submit — in other words, only if I failed to see them as equals.

In other words, if, as a would-be dominus, I cannot look my fellow academics in the eye, I actually pass the eyeball test. It is because I recognize that I have attempted to dominate them and because I recognize that as wrong that I look away. Recognizing my wrong, I can correct it and refuse to dominate my fellows.

If I were fully to embrace my attempt to dominate my fellows, however, I could look them in the eye and tell them the mandate they oppose for legitimate reasons is actually for their own good. Or I could look them in they eye while telling them that, even if the mandate harms them, they should support the mandate for the greater good. To be able to look a fellow academic in the eye, expecting them to look away, is just as much a failure of the eyeball test as when someone looks away out of fear or deference.

When someone cannot look us in they eye because they feel subservient, we fail the eyeball test. When we can look another in the eye and expect them to look away, we fail the eyeball test.

In our relations with our fellow academics, we should all, always, be able to pass the eyeball test. This is why, far from supporting funder mandates that dominate a group of academics, we should listen to their concerns. We do not have a vote. We are not represented. But we can, perhaps, together, still have a say. Even if funders attempt to dominate us, we academics should stand together in resisting.