Anybody who thinks that UCT has turned a corner, and is now on an upward trajectory after the very toxic Fallist years and then the tumultuous and embarrassing reign of former Vice-Chancellor Mamokgethi Phakeng, needs to think again.
A human equivalent of Gresham’s Law, the principle that “bad money drives out good money”, has been manifesting since 2015. According to this human equivalent – which, for want of a better term, we might call Crushem’s Law – bad people drive out good ones. In the context of universities, “bad” people are bad either morally or intellectually or both, while “good” people are good in either or both of those senses.
(I don’t deny that most people are partly good and partly bad, or that there are degrees of both virtue and vice. The binary distinction is a heuristic for thinking about the problem.)
The causal mechanism is that bad people in the university make the lives of good people increasingly intolerable, until the point that the good people leave – or, in extreme cases, take their own lives. The bad, in all their misplaced epistemic hubris and lack of moral scruple, bully and harass the good. The good, given their goodness, do not do likewise. As the good get driven to the margins of university life, and then driven from the university entirely, two things happen.
First, those without sufficient courage, quickly learn that silence in the face of – if not active collaboration with – the bullies, is the means to self-preservation. The second thing that happens is that the bad people oversee the appointment of more of their own moral and intellectual kind, which only further feeds the process.
The latest casualty in this process, is Professor Anton Fagan, who, as of 1 July 2024 is the former W.P. Schreiner Professor of Law in the Department of Private Law at the University of Cape Town. Professor Fagan is both a towering intellect and a moral beacon. He has an acute, analytic mind, and an admirably charitable disposition. For precisely these reasons his life at UCT had become intolerable and he elected to take early retirement.
I hesitate to speak of Professor Fagan’s moral virtues because I know that my doing so will cause him some discomfort. However, it is important for readers to understand what kind of people are being driven from UCT. Of the many possible illustrations of his virtue, I shall mention only two.
Professor Fagan was one of two initiators, in 2013, of the “Five Plus Project”. This project asked South Africans who earned more than R500 000 per year to make the following public pledge:
“I pledge that over the coming year I will give at least 5% of my taxable income (as stated on my most recent tax assessment) to an organization or organisations helping people living in poverty in South Africa.”
Lest there be any doubt, Professor Fagan was not only asking others to take this pledge. It was a pledge he took himself. (Those who think that 5% is not very much, should be informed that the vast majority of people earning more than half a million rand per year, give much less than 5% to alleviating poverty.)
Another example: without any fanfare and without seeking any credit, Professor Fagan and his family, fostered a baby for an extended time over the period of the Covid-19 pandemic. Of course, Professor Fagan did not see this as an act of great altruism. He saw fostering the child as beneficial to him and his family, which is the mark of a true altruist – somebody who sees benefiting others as good for himself.
Because virtue (unlike “virtue-signaling”, in which Professor Fagan certainly does not engage) is not a job requirement for an academic, I now turn to Professor Fagan’s intellect. A philosophically inclined academic lawyer, his doctoral degree at Oxford was supervised by the eminent philosopher of law, Professor Joseph Raz. Professor Fagan’s public writings – which are the writings of his that I have read – bear the hallmarks of analysis, rigour, and clarity, but also a brave independent mindedness. Instead of following the academic crowd, trotting out the now de rigueur bromides that are guaranteed to advance one’s position within the university, he has expressed unpopular but well defended views with courageous honesty.
Unsurprisingly, this has repeatedly landed him in hot water. He has always responded to this with equanimity, offering powerful arguments against his adversaries – arguments that would make any person of decency and intellect squirm with embarrassment. Unfortunately, his adversaries are not such people. His arguments pass over their heads. They not only lack the capacity to understand and feel the force of his arguments, they are also unaware that they lack that capacity. They are exemplars of the Dunning-Kruger effect.
Professor Fagan’s intellect and equanimity have been apparent even in the most recent events that were the proximate causes of his decision to leave UCT. In recent months, he wrote a series of articles in which he responded to ill-conceived statements by colleagues of his in the Law Faculty, and by the UCT Senate, about Israel’s war against Hamas in Gaza.
Given the context of a South African university, and the fact that Professor Fagan’s life at UCT had become intolerable, I do not have to clarify what view Professor Fagan was opposing. We all know which views about Israel and Hamas are orthodox and which are no longer tolerated within South African universities.
Professor Fagan’s situation became worse when he set an exam question for his delict course. The exam question was designed to test students’ ability to determine possibly negligent and wrongful failures by a security company and its employees. Professor Fagan constructed a hypothetical case in which a right-wing, holocaust-denying antisemite, masquerading as a Muslim terrorist, opens fire on a Jewish school in Cape Town.
This unleased outraged responses from what appears to be a small minority of students, prompting the Law Students’ Council to lodge an official complaint about the exam question. The matter was also taken up by a group called “UCT4Palestine”.
The complaints claimed that the (hypothetical) set of facts was:
1. disturbing
2. extremely distressing
3. deeply and highly inappropriate
4. highly triggering
5. profoundly insensitive
6. deeply offensive
7. capable of evoking trauma, fear, and significant emotional distress
8. intended to push a specific political agenda
9. intended as political propaganda
10. the cause of a severe psychological impact on many students
11. the intended (and foreseeable) cause of real harm
12. a gross violation of Professor Fagan’s professorial responsibilities
13. an abuse of his professorial power.
It is not my purpose here to defend Professor Fagan against these accusations. He has already provided a devastating and detailed response to these manifestly silly (and malicious) accusations. The fact that those making these accusations did not immediately withdraw them after the publication of Professor Fagan’s response, demonstrates that his accusers are either deficient in understanding or motivated by malice, or both.
Professor Fagan makes clear that he has always treated his students as adults, even when they behave like children, which is why he reasons with them in the way he reasons with adults.
Sadly, the most immediate precipitator of Professor Fagan’s decision to take early retirement is not that some of his students were again acting like children. Instead, it is that some senior university officials, in their response to the student complaints, were also acting like children rather than like adults – a problem that has plagued UCT at least since 2015. Professor Fagan was given the impression that they (a) would not be standing by Professor Fagan as the complaint was “investigated”, and (b) were keen for Professor Fagan to leave (thereby suggesting that the outcome of the investigation was a foregone conclusion).
Although Professor Fagan stands by the positions he has taken, and has compellingly demolished the claims of his accusers, he was not willing to continue fighting at UCT. He thus elected, very quickly, to take early retirement. He is looking forward to this next stage of life, and I am not aware of his expressing any bitterness – further manifestations of his equanimity (at least publicly, for who knows what is happening in the minds of others if they do not provide verbal or behavioural evidence?)
The biggest loss is UCT’s, even though UCT is unlikely to recognize this. Those who have driven Professor Fagan from UCT will likely revel in their success at banishing the gadfly. Moreover, it is in the nature of the counterfactual, that future students will probably never know what they are missing.
It remains to be seen who will succeed Professor Fagan to the W.P. Schreiner Chair. Will it be an external appointment – somebody who is ideologically conformant? The UCT Department of Private Law does still have a few unorthodox scholars of great intellect. However, all of those are relatively junior and thus perhaps not yet eligible for a full professorship. It also remains to be seen how long they will last at UCT.
