5.4 Toward a shadow model for jurists II

Leaders shape values and objectives (Barnard, 1938). Structure follows strategy (Chandler, 1962). Organisations learn and adopt very slowly; organisations have staff (people do it better) (Weick, 1976/1979). Form follows function (Peters & Waterman, 1982). Every organisation risks becoming perverted (in 't Veld, 1995). Important inspiration for jurists, but it is not their profession, and not their first duty to read business literature. Managers seldom read from the jurisprudence either.
To increase the effect of governance, it is often better to specify the change, and agree on a process with those who are doing the work. Regulations that enhance communication reduce the need for control. Networks and cybernetic models, being based on communication-processes between people with shared values, function well through negotiating contracts, as the latter are also a direct result of shared objectives. Negative effects of internal contracts can be avoided by a balance of incentives for competition (left side of Figure 4) and the incentives for co-operation (right side of Figure 4).


Figure 4.

The balance in Figure 4 is that shared values are better implemented through directives, guidance, and (democratic) processes. To achieve shared objectives, incentives and product-design seem more effective. Together with Figure 5, Figure 4 helps to determine the most appropriate juridical form of intervention, which in its turn indicates the connected type of regulation. Together with the frame of reference in 5.5, they give an outline of a shadow-model for jurists, that should improve the ability of systems and institutions to respond to change. It is important to realise that types of regulation are not just legal forms; it implies another style of drafting, another language, and another management style. Maybe this is another explanation of the limited results of government policies.

This type of intervention implies this type of regulation
Symbolic
directive (objectives)
7
none (mission)
Obligation
directive (shall; shall not)
Incentive
causal (if x then y)
Guidance
advice, procedural (this way please)
Process
procedural (who does what when)
Product
contract (what, when, price)

Figure 5. The choice of juridical instruments should follow the following pattern.

5.5 A frame of reference

The following frame of reference for the draftsmen of regulations to create checks and balances and reduce steering, can be deduced. The elements of the frame can prevent mistakes that make implementation needlessly complicated, or the regulation outdated before implementation.

a. The basic features and desired image of the entity, determine the legal framework, not the other way round (see para. 3):

  • unique professional organisations;
  • producing higher education and research;
  • hybrid, independent, self-steering and accountable;
  • competitive and innovative;
  • networking;
  • international;
  • value and result-oriented;
  • employing/teaching individualistic, intelligent, communicative cooperative persons.

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