Management of education and research is to a larger extent than any other sector: staff governance through facility management. 80% staff and 20% other expenditures is a normal ratio of the overall higher education institution budget: hardly any sector is more labour intensive. With such a ratio at least 80% of governance is guiding people. The main products of universities, graduated students and publications, are direct results of the human factor. However, management of intellectual processes is a contradiction in terms. Thinking is hardly manageable, even by the thinker itself. 'Gedanken sind frei' (thinking is free), as Achim von Arnim and Clemens Brentano composed it in a song of the collection 'des Knaben Wunderhorn' (1806-1808). Nevertheless, higher education has an important role in society and is expensive, so organisational structures must ensure the (s)election of a leadership that provides the staff with an optimal set of working conditions in terms of co-operative atmosphere, best possible facilities, morale and substance. 'Facility management', vital in any academic environment, requires a well-organised dialogue to take full advantage of the capacities of the academic community, including students. Evidently, staff respond better to carrots than to sticks. Without underestimating the attraction of a higher salary in individual cases, there seems sufficient evidence that poor opportunities in the institution and the system at large are the main causes of brain drain. For the legal draftsmen the message is to create a proper imbalance of incentives and sanctions: many facilities and few sanctions.
In the Netherlands a three person executive board has been introduced to promote a more democratic as well as professional management and reduce the dependence on just one leader. Since 1997 the members of the board are nominated by a supervisory board which is in its turn appointed by the minister. In Europe, this is an exception. Although it has been noted that the collegial model has been replaced by a managerial model, it is still largely functioning (Bargh, Scott & Smith; 1995). Rectorial management is prevailing. This essay is not the frame in which to compare the organograms of universities; this has been done in De Groof, Neave, Švec, 1998). One common feature is interesting: only in politics and higher education is it the norm that the subordinate becomes the boss for a while and then subordinate again. This is not a guarantee for professional management, but it is the essence of democracy. lt becomes more unique when we consider that the responsible minister often is an (active) professor, and that a minister of education, who is not a professor, has occasional difficulties in being accepted. So, higher education and research is managed by temporary (s)elected governors, of the same rank as the subordinates. At least during the first years of office, managers need strong guidance from professional and influential administrators.
These are important phenomena for jurists who anticipate the effects of formal and informal organisation on the effectiveness of the regulations they are drafting. Regulations should serve the continuity of the organisation, as well as establish a line of authority that facilitates the work.

3.7 From education to innovation

Another question for legal draftsmen is how to deal with strategic aims, the mission. Are the objectives for example to facilitate:

  • a focus on a limited area of excellent research;
  • a wide range of more modest research ambitions;
  • transfer of culture and knowledge to students;
  • teaching for the labour market;
  • emphasis on research based- or profession oriented education, related to the question whether to concentrate on basic or applied research, (whatever the sense of the distinction may be).
The choice of what sort of system or institution is desirable is not at all evident. Assessment of strategic options and trends prevent concentration on internal problems and ad-hocracy. For centuries universities concentrated on teaching; a fully fledged higher education institution was 'studium generale', sometimes merely examining bodies exercising their well-preserved monopoly of awarding titles and degrees, including the effectus civilis. Research was the rather private business of individual inventors and authors like Copernicus, Erasmus and Huygens outside university walls who formed their own network through learned societies and other means of contact (Cobban, p. 1246; Frijhoff p. 1252; in Clark & Neave, 1992). Later, when companies emerged and research became more expensive, needing special infrastructure and 'critical mass', research moved into big private companies, co-operating regional industries, government agencies, defence industries, and universities. The latter turned from education-minded to research-oriented bodies. Their teachers had always been strongly involved in research. Although the university is one of the most important institutional legacies from western European medieval times, the institutionalisation in the modern sense of the word only started around 1900 (Shils, p. 1260; in Clark & Neave, 1992), when its size exceeded critical limits. Nonetheless, the university remained a conglomerate of individual chair-holders, led by the Senate that temporarily elected one of them to act as rector. Until the student revolts of 1968, developments driven by the massification of higher education and increased funding of university research, non-tenured staff, administrative staff, students and society had hardly any influence on governance. Only since ten to fifteen years ago have we seen, partly driven by governmental policies, an increasing emphasis en institutional co-operation in research: centres of excellence, post-doctoral policies, research schools.
The trend in education is towards learning to learn, life-long learning, teamwork, personal capacity building. De-specialisation, diversification and modularisation are key concepts to satisfy the needs of the new generations of students. Students are a driving force of changing the goals of university, already because knowledge is increasing at an accelerating speed, and thus quickly useless again (paradoxically leading to specialisation). In teaching, the trend is from ex-cathedra teachers to study-facilitators and mentors. Education should not be aimed at training for a job, but training for a career.
Regulations in higher education are forged by structures that were predominant until the sixties and the medieval tradition of guilds. This is not compatible with universities expected (and forced) to act as well-managed market-oriented organisations. The economic necessity of making contracts for education and research to earn extra money, is another strong driving force towards an entrepreneurial type of management. Fortunately, the fast learning academic community is still able to escape from counter-productive forms of business management and the oppressive State, for example through internationalisation, networking, forming new guilds while world-wide-web-surfing. Education and research is future oriented by definition. Higher education institutions are transfer agencies of innovative thinking. This is the new core business. The answer to the question how to run and regulate 'a school that produces graduates and publications, is quite different from how to run and regulate an 'Institution of Innovation through Education and Research'.

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