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Portrait — For the last 20 years Eva Smith – Denmark's first female professor of law – has seen things go downhill: The rule of law is under threat, law researchers are avoiding public debate, and students have lost their spirit. But Smith still hollers when she sees injustice.
Eva Smith’s heart sinks when she thinks of Henrik.
He was a rascal who was in the same class as her son, a source of noise and agitation during classes and in the schoolyard. One day he was expelled from school, accused of having attempted to push a teacher over a railing and into a breakneck fall.
As chairman of the school board, Eva Smith looked into the case and asked the rector whether he had even heard Henrik’s version of the story. No, he had not. When Henrik was given the chance to speak, it turned out that he had had no intention of injuring the teacher, and he had just tried to free himself from her grasp. The teacher even acknowledged this herself.
Henrik was not expelled after all. On the other hand, he had to stay home from the cabin trip that Eva Smith’s son and the other children in the class went on. In the meantime, Henrik sat at home, with packed bags, waiting for the call that would allow him to go on the trip. It never came.
Many years later, Eva Smith had heard that Henrik had ended up in prison.
That’s why she gets upset when she thinks of him.
The story says two things about the retired law professor, currently topical with a biography ‘Jeg håber, jeg har gjort en forskel’ [’I hope I have made a difference’] written by Anne Knudsen and Steen Valgreen-Voigt: She stands up for the weakest in society. And she puts up a fight when she sees injustices.
»Every time I stumble upon something I have found to be unreasonable or unfair, I have always felt the urge to react,« she says.
She does not look threatening herself, as she sits there, smiling and a bit hunched up, at the dining table in her apartment in Frederiksberg. A large amber pendant shines on a necklace above a black blouse. Behind her is a small textile kangaroo in the bookcase, while a toy castle in the corner of the living room serves as a reminder that she has 20 (!) grandchildren.
But when she starts to account for the threats to the rule of law, she leans forward in her chair and thumps the outside of her right hand on the table to emphasize her points. In the meantime, she scrunches her eyebrows.
A country’s system of justice should be evaluated on how it treats the people it values the least.
Eva Smith, Professor Emerita, Faculty of Law
Thirty years ago she became the first female professor of law in Denmark, and ever since then she has, as she puts it, fought for »principles of the rule of law, including equality before the law.«
She has, in particular, taken on the cases of outsiders: Socially disadvantaged. Asylum children. Immigrants set on a path towards communities of criminals. Children like Henrik.
»A country’s system of justice should be evaluated on how it treats the people it values the least,« she says.
Most people will probably think that the now 78-year-old Eva Smith has made a difference for many of these citizens. As a pundit, as a chairman of the Danish Crime Prevention Council, as a political activist.
But this does not mean that she has withdrawn in triumph. As it happens, during the last 20 years, she has been on the losing team in the fight for the rule of law.
She says that she ought to have called her farewell lecture from 2017 the ‘Dismantling of the Rule of Law’ instead of the ‘Development of the Rule of Law’. If you ask her if she feels disillusioned, it is a weary »yes« and a despondent smile.
»I find it sad.«
She sees politicians who constantly base policies on opinion polls and go right out to the limit of the conventions. She sees civil servants who ought to be non-political and protecting the rule of law, who increasingly act as »an extended branch of government.«
In the new biography, she lists a number of examples of what she sees as the decline of the rule of law in Denmark. She criticises the increased monitoring of the population after 11 September 2001, the repeated attempts to reduce the minimum age of criminal responsibility, and the many restrictions in immigrant integration policy.
She calls it »a gross breach of the rule of law« that the Minister for Immigration and Integration can now, administratively, deprive foreign fighters of their Danish citizenship. She has, on several occasions, criticised the government treatment of asylum-seekers’ children. And she opposes ghetto legislation that doubles the penalties for crimes committed in certain locations.
»This is completely wrong. Introducing these rules is very dangerous. Ethnic minorities can only perceive it as something only applicable to them. If we want to integrate them into society, especially those who are born here, it is no good making a lot of rules that push them away from us. Where we say: You don’t count as much as we do,« says Eva Smith.
As a professor of law, she has often communicated her knowledge in legal policy debates. But her words – and the words of other experts – have lost clout in recent years, according to Eva Smith. This is due to the fact that politicians often choose to disregard knowledge and research in legal policy.
She points to the Conservative Party chairman Søren Pape Poulsen who, as Minister of Justice, said to the Danish public service media DR that doing legal policy is more than research and studies, and that he personally was not concerned with whether a gang member should be helped back into society.
Calling for tougher sentences is the easy way out, according to Eva Smith. But when the research tells us that resocialisation is the best way to combat recividism, politicians have to stand up and explain to the public why this is the case.
Just as she tried to do so as the long-standing chairman of the Danish Crime Prevention Council.
»I think we can require this as a democratic state. Because while it may be true that, as long as the criminals are locked up, they won’t do any harm, at some point they will come out again – whether it’s after 15 or 20 years. And what kind of people do you get out?«
»Nowadays you need a clear criminal record just to put things on the shelves in Irma (Danish supermarket, ed.). Things have gotten out of hand.«
During the process, she has ended up in explosive confrontations, especially with centre-right politicians.
Not least because she, as the chairman of the European Council’s Commission on Racism and Intolerance, helped publish a report on Denmark that was heavily debated in the middle of the noughties. The report claimed that »there was a prevailing atmosphere of intolerance and xenophobia towards refugees and asylum seekers« in the country and blamed the media and politicians before pointing to the Liberal Party coalition government’s dependence on the right wing Danish People’s Party as a problem.
The Danish Prime Minister at the time, Anders Fogh Rasmussen, subsequently slammed the report as being »deceitful« and said that »it should be just summarily discarded into the trash can«.
On other occasions, Eva Smith wielded the rhetorical sledgehammer herself. Like when she, during a debate on citizenship for foreign fighters, labelled Danish politicians as »hypocritical.«
As a researcher, she never holed herself up in her office and claimed to be politically neutral.
She says that she considers it her duty to explain the law so that ordinary people understand it now that her study programme has been paid for by the taxpayers.
The truth is probably also that she has not been able to stop herself from interfering.
»Someone once told me that he had seen a epitaph where it stated that he thought ‘that everything was his business’. I thought: This could also be about me!«
»Because you can ask: What does it matter to me whether there are any Danish children in refugee camps in Syria? That’s not my problem. It’s not my children or grandchildren.«
At birth, her surname was not Smith, but Hækkerup, a name that has been associated with the Social Democratic Party in Denmark for generations.
Her father was Hans Erling Hækkerup, a former Minister of Justice and Minister for the Interior in the 1960-70’s governments of Prime Minister Jens Otto Krag. The former Minister for Economic Affairs Per Hækkerup was her uncle. And the Social Democratic Minister of Justice is also a Hækkerup – Nick Hækkerup.
She has considered whether she should do like them and pursue a career at Christiansborg. When she did not do so, it was not because she was afraid to say what she thinks: It was because she was afraid to say what she doesn’t think.
»As soon as you get into a situation where the majority has an attitude you disagree with – and that is what you do in a political party – then you have to go out and argue for their point of view. I didn’t want to do this, I will admit. This would be really unpleasant,« says Eva Smith.
»This is the big advantage of holding a position at the university. There is no control over what I think. When I’ve sat on different committees, I haven’t had to first speak to my trade union representative before I stated my opinion, like so many others. It takes away part of your freedom to comment and set the agenda.«
Not all researchers think like this.
In fact, Eva Smith knows that many researchers think that she speaks out far too often and in too general terms to the media. Especially in TV segments, where interviews have to be edited down to half a minute, and where all the exceptions and reservations that make Danish legislation complex cannot be a part of it.
»Some of my colleagues think that this is way too superficial,« Eva Smith laughs.
One of them once complained to her that he was always asked the same thing at dinner parties. Namely: »Do you work with this Eva Smith person?«
»He found that really annoying. I understand this. This is also irritating.«
This said, Eva Smith finds that too few researchers involve themselves in the debate, at least at her own faculty.
This is the case at this particular time as the Danish Parliament is to adopt a new law on epidemics. During the corona crisis, Minister of Health Magnus Heunicke (Social Democratic Party), has had extensive powers to fight the virus. According to Eva Smith, researchers need to remind him that these powers may never become permanent.
Young people today have a feeling that they cannot change anything at all.
Eva Smith, Professor Emerita, Faculty of Law
»It cannot be the intention that we have to change our legislation because of an extraordinary situation that will last a few months. I have not seen any law professors who have said this,« says Eva Smith.
As a researcher, she has gone further than expressing her opinion on legal issues in the media.
She has also repeatedly crossed over to political activism. This includes when she, ten years ago, stood behind a petition for asylum children Asylbørnene Ud Nu, a call on politicians to give asylum seekers’ children a daily life outside the country’s asylum centres.
At the time, she wrote an email to her network that she was permitting herself to contact them in »a non-academic context«.
»In my conception, the concept of legal security also implies a care for the weakest. And in my opinion, the weakest in our society are the children of asylum seekers,« she says.
Is there not the risk that you lose some of your credibility as a researcher when you clearly express a political point of view?
»Yes, that’s true,« says Eva Smith.
»I’ve also tried to be aware of this. You can’t get involved with anything, because then the listeners will say: ‘Oh yes, it’s just her again’. You quickly get pigeonholed.«
Do you feel that this has happened to you? That people have said, for example: ‘Of course Eva Smith is not in favour of this, because the Danish People’s Party proposed it?’
»Yes, sure, I think so. I also find that people are amazed when I have a different point of view than the one they had expected,« she says, and mentions that she defended the current legislation on public access, adopted in 2013, which reduced the media’s access to political documents.
»It came as a surprise to everyone. You can’t really believe this? You? Well, I actually do. It turns out that they were wrong when they pigeonholed me.«
She smiles, contented.
She probably did also when the Danish Supreme Court judge Jens Peter Christensen said that »it is always interesting when Eva speaks up, because you never know what she will say«.
This is one of the biggest compliments she has ever got, she says.
She doesn’t speak up so often these days.
The journalists are still calling, but as a rule she passes them on to her colleagues, and she gets involved with fewer of the legal disputes that different citizens ask her help solve.
»After I have been made Professor Emerita, my husband has said that it is like it was before, but now I just don’t get money for it. I find that a bit exaggerated.«
»I feel like I have pulled myself back a bit. I’m actually a pensioner. And that’s fine,« says Eva Smith.
But she has not left the Faculty of Law where she thinks it should be.
She says that the students have lost some of the fervour and zest that she often met when she started teaching at the university. At the time, many people dreamt of becoming defence lawyers and fighting to ensure that nobody was unfairly convicted. Today, many people just want to make money and a sensible career, according to Eva Smith.
I should have done more to find a clear successor. This is one of my regrets!
Eva Smith, Professor Emerita, Faculty of Law
»I also find that there are an astonishing number of them who are not interested in what is going on in society. The interest is only very specifically on law. I have to say this.«
Why do you think this is the case?
»When I was young, we thought that we could change everything and make the world a better place. Young people today have a feeling that they cannot change anything at all. If I was young, I would really feel screwed.«
But are we not witnessing a nascent youth rebellion, like in the climate movement?
»Yes, it’s on the way back, a little. I really think so. It must just be frustrating for the young people to see how little it helps. We managed to influence the parties before the general election, where everyone suddenly wanted to be green and do something for the climate. But in the exact moment there was a new government, it turned into yes, of course we need to do something. But we just have to wait for the technology, and then nothing comes of it,« says Eva Smith.
»Then along comes corona, and suddenly they stack up I don’t know how many billions of kroner to help the eldest citizens. As a young person, you must be sitting there thinking: Where were all the billions when I wanted to do something for the climate?«
Eva Smith is not satisfied with the composition of the professors at the Faculty of Law.
She says that there is one thing that she really regrets: That she did not make sure that she was given a direct replacement when she retired.
Today, the faculty has two full-time professors in criminal law (and one emeritus), but none with criminal procedure as their primary field of research.
»I simply did not conceive that when I left as a professor, they would abolish the professorship in criminal procedure. I hadn’t thought about it at all. This is one of my regrets! I should have done more to find a clear successor.«
Why is this a problem?
»You will lose out on the rule of law. The protections of citizens towards the state, you could say. Where criminal law has to do with what should be a criminal offence, and what punishment the individual should have, then criminal procedure is about whether what is going on now is fair and just. Are you, for example, able to state your opinion to a sufficient degree?«
»There is a need for someone to point out these things.«
»At least when I’m not around anymore!«
In an email to the University Post, Dean of the Faculty of Law Jacob Graff Nielsen responds to Eva Smith’s criticism:
»It certainly means something to me when someone of Professor Emerita Eva Smith’s capacity, who, for many years tirelessly and with extensive professional insight, has fought for legal security in the criminal process, expresses her concern about the staffing of criminal procedure at the faculty.«
»It is quite right that the faculty has two full-time professors in criminal law who, by agreement with the faculty, also cover criminal procedure. In addition, we have an emeritus professor in criminal law, who has also worked in-depth on criminal procedure in addition to Professor Emerita Eva Smith. Criminal law and criminal procedure are one unified subject on the bachelor’s programme in law. That is why I believe that criminal procedure is covered thoroughly at the faculty.«
»I do not, however, exclude any separate appointments within criminal procedure. But this is to be weighed against the need to cover other, equally important, subject areas at the faculty.«