The recent resignation of the Executive Director of Frontex disguises in fact the many structural problems and flaws resulting from the hybrid exercise of significant executive powers within a shallow legal framework. This blogpost argues that this leads to a lack of clarity, adequate controls and safeguards which in turn creates fertile ground for abuse of power and unaccountability.
All (but one) responses to my reflections on the ethics of activism as scholars in this blog symposium have been thoughtful, engaged, and charitable. For them, I am very grateful. If my rule-consequentialist worries have any truth to them, we should worry more rather than less about having the relevant motivation I castigate. When the moral stakes are higher (such as in vast areas of the Global South), one has to be even more careful about not making moral mistakes. The debate is not about whether one should be moral (by definition, we should be). It is about what is the most effective means in which the constitutional studies academy can contribute to a more just world.
The resignation of the Executive Director of the European Border and Coast Guard Agency (hereinafter: Frontex or Agency) at the end of April 2022 re-opened Pandora’s box with regard to the adequacy of the accountability mechanisms on the Agency. The turmoil was caused by several allegations of breaches of the law, which seems to be confirmed by the OLAF report, leaked at the end of July 2022. The aim of this blogpost is, first, to discuss the emergence of a rule of law crisis in border management and, second, to lay a finger on issues regarding both internal and external oversight mechanisms over Frontex, with special attention for the composition of the Management Board, the very first oversight body within the Agency.
In international macroeconomics, the term ‘Impossible Trinity’ refers to three elements, which are impossible to coexist. In this Verfassungsblog series, we examine whether the EU’s external border policy, Frontex and the rule of law constitute such an ‘Impossible Trinity’, or whether they can be reconciled with appropriate accountability mechanisms.
At a time in which a worrying number of risks conspire to threaten the end of democracy and humanity – from climate change to uncontrolled new technologies –, to confine the remit of the legal scholar to the narrow boundaries of academic purity appears ahistorical at best, irresponsible at worst.
What’s wrong with good “scholactivism”?
There is a fine line between suspicion based on the nature of the motivation (seeking direct material change), and the substance of the motivation (commitment to a particular normative position). Once the “scholactivist” label gets thrown around, it may be hard to maintain that distinction. And it is to normative positions which advocate new ideas or change – including those that are reflective or well-considered – to which the label is most likely to attach.
In the past decade, the U.K. has seen the overwhelming influence of the populist right. It manifests most famously in the Brexit process, but also in continuous calls for a reversal of liberal constitutionalism. Notably this process is bolstered by a group of scholars, many of whom were in my own faculty at Oxford, who serve as legitimation of government policy and spur its development. Importantly, though clearly highly effective ‘scholactivists’, these scholars would never describe themselves as such. We need to follow the money, we need to follow its route to power and to understand the role the academy plays in legitimating and building these ideological (and often religious) positions.
Tarunabh Khaitan’s article “On scholactivism in constitutional studies: Skeptical thoughts” has prompted us to make a number of observations. It is a welcome intervention insofar as it may perhaps provide an impetus for a much needed debate within constitutional studies, which on the one hand seeks to lay bare certain kinds of privilege that undergirds the positionality of scholars arguing against Scholactivism, and on the other hand also makes the case for empirically grounded and interdisciplinary engagement in constitutional studies. Yet, to those of us located in, writing from and about the Global South—which includes both the geographical South as well as pockets of it in the Global North (including racialised and Indigenous populations)—this contention raises several concerns.
My claim and critique of Khaitan’s position is that constitutional law scholars must produce actual answers to questions of legality, constitutionality or feasibility. Scholars may differ in whether or not they start their inquiry with a ‘material outcome’ as their hypothesis but the quality of work by both ‘activist’ and ‘non-activist’ scholars is to be assessed on the basis of the outcome and their academic integrity.
Tarunabh Khaitan’s editorial comment in ICON on the perils of letting activist inclinations influence one’s scholarship, resulting in an unsavoury “scholactivism” blend, is thought-provoking. Professor Khaitan calls for rigorous adherence to the ethical demands of a search for truth in our research, even as we might, he suggests, become or remain activists for causes we believe in a range of other activities. In my view, however, Professor Khaitan’s critique misses the mark. He is asking too much of individuals and not enough of institutions.
13. September 2025
Giovanni Capoccia
12. September 2025
Anne Peters
12. September 2025
Anne Peters