1.3.2 Democracy

Democracy adds its own special requirements to the operational mode of governance. Voluntary participation distinguishes democratic governance from authoritarian rule. This distinction bears not only on organisational structures; it marks a profound difference in legitimacy, justification and communication. Wide participation adds to quality, but only voluntary participation makes sense, otherwise it is a nuisance that perverts the organisation, or even the system. Democratic participation is comprised of three elements:

• election: the traditional rights to vote for and to be elected in governing bodies;
• communication: the right to be consulted (not only to be listened to) on matters that concern the group or individual;
• selection: the opportunity to select a best option.

This third mode is not less democratic. It implies the freedom of supply as well. Lindblom (1977) discussed the question of why governments have proved inferior to markets as co-ordinators of economie activity. The basic answer is that free markets provide customers with a wealth of choiees, voting with their money. This implies, not only in quantitative terins, more participation than casting a vete every now and then. Elections and selections are flip-sides of the same coin. Democracy implies the possibility ofparticipating in governance in various ways, and the opportunity to select.

2. Regulating governance; the endless quest for The Grail

2.1 Views on the position of the State

Legislation is a function of influential theories about the State, about the balance of power. For the scope of this article, a bird's eye view is sufficient to see how political theories give direction to today's legislation en governing higher education.
In Plato's typical State-oriented view, the ideal instrument with which to govern a State are the Philosopher Rulers. It is the aim of the educational curriculum to produce them (still an interesting mission of a higher education institution). The absolute rulers, chosen by co-optation, react to every situation in the proper way. As there is no such Statesman, Plato elaborates in The Laws that the solution has to be sought in the law, whereas the ideal ruler is barely mentioned. He introduced the Rule of Law that is still considered to be the best basis for society. It is important to note that Plato treats contracts in the frame of commerce and trade, in the private domain only, hut not in family law. For centuries, this would remain a leading principle.

Machiavelli and Hobbes found political responsibility in the authoritarian principle of 'checks' (control). The consequence is strong State intervention as the people can only be governed by the government and its laws. Machiavelli's ideas on governing are based en central State power; the purpose of political conduct is the stabilisation of it. He distinguishes between people as they ought to behave, and as they actually (are forced to) do; between the ideal form of institutions and the real conditions under which they operate. Machiavelli is the first who thus rationalises formal and informal organisation, concluding that strong central power has to be sought in the democratic republic. Hobbes' central problem is how the formation of State is derived from human nature. Leviathan provides a view of society which is characterised by universal competition for power over others: homo homini lupus. To avoid a war of all against all, Hobbes' ideal State is governed by a monarch, simultaneously representing qualities of right and of power.
The basis for the development of the 'balances' in the modern democratic sense of the word being laid by John Locke, can be found in De Montesquieu (Trias Politica). He separates the legislature, the public administration, and the judges. Other powers have been defined afterwards, for example: the civil servants, the press, the bankers, the owners of information, the professors who profit from the wide-spread belief in the motto 'scientia est potentia', etc, but the first three remained paramount.
Natural law and divine law were the sources of regulation until Rousseau based, in Du contrat social, the origin of State power in its citizens; not the Church or the King, or both, representing God. By the mere title of his book, he introduced the ultimate private legal instrument in political philosophy: contracts. But only much later did the practical consequences become visible. Higher education had to wait even longer.
Through the centuries, universities underwent a development of increasing State control and State funding, whilst, with the inevitable ups and downs, preserving academic freedom. However, from the foundation of Bologna in 1088, and despite the fact that this institution was in its early days for a while governed by students, public or clerical authorities took or were requested to take an interest (Cobban, 1992). At first authorities granted privileges to the academic community, then they gave them Papal Bulls, statutes or Royal Charters. As of the early 12th Century, kings, princes and the church started to found and finance universities. The golden bonds always had their price and thus the eternal dance of 'Institutional Autonomy' began shortly after the first universities emerged. Maintaining the balances between powers, although not in a static way, becomes an essential part of regulating. Only recently, overburdened States started to give more rein to the institutions.