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Open access and anti-fascism

Monday, I had a long discussion with a colleague about academic publishing, quality control, and open access. This morning, I came across an article (unfortunately behind a paywall) about (European) data sovereignty and science. The two events have sparked some thinking on the relationship between commercial publishing in academia, open access, and – not to be dramatic – fascism.


First, a lot of people in academia, especially in positions with decision-making power, use heuristics for quality control – when it comes to hiring, promotions, or evaluations. Now, I think the use of heuristics in and of itself is, at least to some extent, both inevitable and very, very human – but which heuristics we use to what ends and what (side) effects that use has is worth interrogating. When it comes to ‘controlling’ the quality of research, one heuristic often used is publishing venue. Did this article get published in the right journal? Was this book published by one of the big publishers in the field?

The thinking goes along the lines that the publishing venue, via editorial and peer review, ensures that only publications of the highest quality are published in this journal/book series. Accordingly, the person checking whether someone should get hired, fired, promoted, receive a good review, etc. does not need to check whether the work of the person they are evaluating is any good, because someone else has already done that.

Now, we can ask whether that is actually the case, and quite some ink has been spilled investigating this system and existing biases[1] or whether peer review is actually any good at ensuring quality[2] and worth it.[3] Possibly even more ink has been spilled on ‘publish or perish’ as a paradigm in current academia and how harmful that is.[4]

Here, I want to focus on another aspect of current academic reality. Irrespective of whether the link between publication venue and quality control actually holds, the current system – certainly in my field – puts a lot of emphasis on commercial academic publishing venues.

I think commercial publishing, whether open access or not, is often immoral. In short: public money pays for the research. Public money pays for the editorial work. Public money pays for the reviewer. It is then published behind a paywall, in which case public money (often in the shape of university library subscriptions) pays for access, or it is published open access, in which case public money pays for the fees to publish it open access. Commercial academic publishers have huge profit margins,[5] because public money pays for most of the labour involved in the process.

Of course, there are alternatives and the open access movement is gaining traction – but still, many of the big names are commercial.

This means academics face a social dilemma. Individually rational behaviour – maximising publications in high level journals or with big name book series – leads to collectively irrational results – huge profits for commercial academic publishers, paywalls, and higher costs.

I firmly believe that science, broadly conceived, is the communal pursuit of knowledge, that it is a public and common good, that it should be funded – and that research paid for by public money should be publicly available. I believe that commercial academic publishing is, at its core, unethical because publicly funded labour enriches private companies. And yet: I am working on a book proposal that I will send to commercial academic publishers. The current system strongly incentivises me to do so – and I live and work in a country that leads the move towards ‘Recognitions and Rewards’.[6]

Many commercial academic publishing venues are ‘the best’ and so people keep trying to publish with them because that is what is incentivised. Because of this, they can be selective about what they publish and maintain ‘excellence’.

I am convinced that if instead, all scholars submitted only to diamond open access publishing venues, some of those would become ‘the best’. But there is a risk for each individual scholar to do so, because the incentives of the current system are such that we are evaluated not by whether we are democratising knowledge, but by whether we are publishing in those venues that are currently considered ‘the best’. As long as we keep evaluating each other by whether we are publishing in those venues, we are maintaining a system that lines the pockets of private companies and that puts research results behind paywalls or asks for additional payments to make them openly available.

None of this is new.[7]

What had not really sunk in for me until today is how much this reliance on private companies as the keepers of our communal pursuit of knowledge opens us up to danger of losing access to that communal knowledge if those private companies decide to bend the knee to authoritarian and fascist regimes. Unfortunately, those regimes are currently gaining traction in the world and the thought that private companies might bend the knee to them is not far-fetched. In fact, we already see academic freedom under threat – very clearly in the United States of America, where funding cuts are used for censorship[8], but also closer to home. Fascism is, by its very nature, anti-scientific.[9]

I don’t have all the – or even any – answers. People working in metascience[10] are better placed than me to think about these issues and to develop answers. But I am an academic and I am trying to live both my private and my professional lives in as good, ethical, and, yes, as anti-fascist a manner as I can. So I am concerned, and I think that concern is worth voicing.


[1] For example regarding desk review by editorial boards (in economics): https://www.sciencedirect.com/science/article/pii/S0167268122002657

[2] For example, https://www.vox.com/2015/12/7/9865086/peer-review-science-problems

[3] For example, https://www.experimental-history.com/p/the-rise-and-fall-of-peer-review

[4] For example, and anecdotally, https://www.theguardian.com/commentisfree/2014/feb/14/higgs-boson-publish-or-perish-science-culture  

[5] https://theconversation.com/academic-publishing-is-a-multibillion-dollar-industry-its-not-always-good-for-science-250056

[6] https://www.nwo.nl/en/recognition-and-rewards

[7] Consider, for example, https://www.rug.nl/jantina-tammes-school/community/themes/data-autonomy/blog/overpaid-bankers-think-again-scientific-publishers-top-the-charts?lang=en

[8] https://www.knaw.nl/en/news/academic-freedom-and-international-research-collaboration-under-threat-us

[9] Again, by way of example, https://www.openculture.com/2024/11/umberto-ecos-list-of-the-14-common-features-of-fascism.html, https://www.americanlaboratory.com/Blog/355628-What-s-Behind-the-Rejection-of-Science/

[10] https://en.wikipedia.org/wiki/Metascience

Why I protest.

I work at a university. More than that: I am an international student – a migrant, in fact – who stayed after getting my diplomas. I am protesting against the budget cuts to higher education in the Netherlands and against the Wet Internationalisering in Balans[1] because it’s personal: the budget my salary and office are paid from is being cut, a group of people (international students) I once belonged to is being told they’re not welcome.

It is personal, yes, but it’s so much more than that.

Continue reading “Why I protest.”

Reading recommendation: rethinking academia in a time of climate crisis

I came across an article by Anne E Urai and Clare Kelly in eLife on rethinking academia in times of the climate crisis. In the article, they use the framework of Raworth’s Doughnut Economics to develop a donut for academia as well. The article contains both a clear analysis of the current state and a vision for the future. I found it very worth reading and reflecting on.

Here is the abstract:

Addressing the climate crisis requires radical and urgent action at all levels of society. Universities are ideally positioned to lead such action but are largely failing to do so. At the same time, many academic scientists find their work impeded by bureaucracy, excessive competitiveness, and a loss of academic freedom. Here, drawing on the framework of “Doughnut Economics,” developed by Kate Raworth, we suggest seven new principles for rethinking the norms of scientific practice. Based on these, we propose a call to action, and encourage academics to take concrete steps towards the creation of a flourishing scientific enterprise that is fit for the challenges of the 21st century.

The full article can be found here.

Evaluations and recommendations in legal research

I recently gave a talk for the Foundations of Ius Commune programme of the Ius Commune research school. The focus of the talk was on evaluations and recommendations in legal research – how do we approach and justify evaluative conclusions and normative recommendations in legal research?

Legal philosophy and the foundations of ius commune
This lecture focuses on normative evaluations and recommendations in ius commune research, through the lens of legal theory and legal philosophy. It situates evaluative questions such as “should the law change?”, “should harmonization occur?” and recommendations as to the form that changes in the law should take in a broader picture of legal research, emphasising the importance of normative standards in this connection. At the same time, the lecture will also point to how these questions rely on factual and conceptual assumptions about the impact of legal change on society in general. This demonstrates how evaluative questions open legal research to other disciplines.

You can find a pdf of the presentation here. If you have comments or questions about it or would like to discuss, feel free to reach out. (And of course, please assume that any and all nuance lacking in what’s on the page was added in the presentation! 😉)

Law as magic: Max Gladstone’s Craft Sequence and the case of social ontology

In September, I attended and presented at GikII 2023, a conference on law, technology, and popular culture. The idea of linking law in Max Gladstone’s Craft Sequence to social ontology and legal theory had been fermenting in my mind for a while, so this was the perfect opportunity to finally put that idea on paper (or, as the case may be, into a power point presentation).

In this blog post, I want to reproduce (parts of) my presentation and slides. Bear in mind that the talk was about 10 minutes, so naturally, there’s much more to be said about just about any part of this. But if I can show how law in the world of the Craft Sequence links to law, legal reasoning and legal theory in our world, I’m happy – and if anyone’s entertained as well, all the better. I know I had fun with this one!

Continue reading “Law as magic: Max Gladstone’s Craft Sequence and the case of social ontology”

The dual challenge from AI and the cognitive sciences for law and legal (reasoning) practices

What do a man claiming that a brain tumour caused his paedophilic behaviour, an AI system called DABUS being recognised as an inventor for the purposes of a patent application, and the modelling of legal reasoning in computational form have in common? They are examples of developments in and increasing insights from the fields of artificial intelligence and the cognitive sciences that challenge extant legal (reasoning) practices in various ways. This paper proposes an analytical framework for the purposes of situating these different challenges vis-à-vis each other and our legal (reasoning) practices. The aim of this framework is to facilitate understanding how they relate to each other, what it is they really challenge, and to critically reflect on them.

Waltermann A. 2023. The Dual Challenge from AI and the Cognitive Sciences for Law and Legal
(Reasoning) Practices
, in Brigaglia M., Roversi C. (eds.), Legal Reasoning and Cognitive Science: Topics
and Perspectives, «Diritto & Questioni pubbliche», Special Publication, August 2023, forthcoming.
(Preview published online on 19.07.2023)

On the logic(s) of international law

Recently, my colleague Henrique Marcos and I organised a conference on the logic of international law to bring together scholars in public international law and in legal theory/legal logic.

We discuss the event and the conclusions for international legal reasoning and legal scholarship we’ve drawn from it in this blog post.

Identifying assumptions underlying legal arrangements

Legal arrangements rest on behavioural, cognitive, social, and other assumptions regarding their role and function in society and the legal system. The identification and subsequent evaluation of these assumptions is an important task for legal scholarship. In this article, we focus on the identification and categorisation of these assumptions, providing conceptual distinctions and methodological guidance. We distinguish between assumptions about the value(s), norm(s), or interest(s) underlying a legal arrangement, which can be legal or non-legal, and assumptions about the relationship between the legal arrangement and its underlying value(s), norm(s), or interest(s), which can be logical, causal, or contributory. Regarding the identification, we consider explicit references and inference to the best explanation and theory-driven evaluations as possible methods. Inference to the best explanation, we posit, functions as a manner of reconstructing the theory that the person(s) creating a legal arrangement had in mind regarding the place and function of that legal arrangement in society. Given this, we offer a step-by-step approach to reconstructing this theory in use, drawing from theory-driven evaluations and its sources in the social sciences. These distinctions and guidelines can contribute to understanding the context and untangling the complexities involved in identifying the assumptions that underlie legal arrangements.


Frans L. Leeuw and Antonia M. Waltermann, ‘On Identifying Assumptions Underlying Legal Arrangements’, LaM May 2022, DOI: 10.5553/REM/.000067

Sovereignty and validity

Photo by Suzy Hazelwood on Pexels.com

Austin defined law as the commands of a sovereign. This paper investigates the relation between the concept of sovereignty and legal validity, departing from Austin’s jurisprudence by distinguishing between constitutive and constituted sovereignty. The aim of this paper is not to prescribe one particular understanding of law, sovereignty, or validity. Rather, it is to investigate what implications one particular understanding of sovereignty has for our understanding of law and validity. Accordingly, this paper posits that a focus on popular sovereignty, which is constitutive, does not cohere well with certain understandings of legal validity, namely validity from pedigree and validity from reason. The understanding of validity that fits best with a focus on popular sovereignty is from acceptance, and a further distinction can be made in this regard with acceptance of an institutional system of law and acceptance of individual rules.

Waltermann, A. (2019). Sovereignty and Validity: On the Relation Between the Concepts and the Role of Acceptance. In P. Westerman, J. Hage, S. Kirste, & A. R. Mackor (Eds.), Legal Validity and Soft Law (pp. 203). Springer. Law and Philosophy Library No. 122 https://doi.org/10.1007/978-3-319-77522-7_11