1.2.1.2 Legislation

Peter Noll (1973) found that no exact definition of politics or policy is needed to ascertain beyond doubt that legislation is one of the most important and probably even the most important task of politics. Legislation is both an instrument in itself and a frame for the use of other instruments of policy. As it is intrinsically meant for the future, the nature, starting point, and the style, speed, direction, impact and psychological effects of legislation, are important issues to be studied. Legislation only ensures democracy and satisfactory development if it is regularly updated. Organising changes in a democracy implies in turn that the legitimacy has also to be ensured. As legislation intrinsically defines borders between the market and the state, between the society as a whole and individual responsibilities, a highly sensitive field is entered, in particular because education has to be considered as core-business of the state, usually spending the greatest part of a state budget. Hence, it should not be a surprise that such a complex process often causes slow progress.

Legislation involves taking into account other options, the countries' budgets, safeguarding the rights of minorities, and not only following the willpower of the government or majority vote. To change a national law in an international environment, such as higher education and research should be, is definitely complicated. Questions like: why do something; what is to be done; how to do it; when it should be done; what are the consequences, will have to be answered. How to be accountable to the Parliament and the citizens of the country, is a similarly important question. On the one hand, legislation protects citizens from state intervention and safeguards classical fundamental rights. This requires a rather passive State as well as an independent judicial power. On the other hand, an active State is needed to protect fundamental social rights. This requires an active legislature and an active administration. In higher education and research legislation is "social engineering", which should secure the legitimate operation of the institutions as well as the legal protection of institutions, staff and students against the State. At the same time legislation links democracy with social engineering.

In the LRP, as well as in this series, "legislation" or "law" has been given a wider definition which includes any legislative instrument that has a general effect: any enactment, decree, rule or regulation promulgated by public authorities at national or sub-national level. The LRP, as well as this series, focuses on legislation in its context, because legislation is only a moment in time, indeed an " Act of Parliament". Much more important and interesting is the innovative process of legislative development and the flexible, but legitimate, implementation of the law, whilst implementation is in itself a first step in developing amendments to the law. Some countries in central and eastern Europe are already entering the stage of what can be called "second generation legislation". Others are still in the process of finding the way to their first framework law on higher education and research. Countries often wait a long time with legislative revisions, encounter resistance in starting a legislative process or lack the political will or courage. As has been said, legislation requires a lot of work and it takes a lot of time. Its political impact is not always predictable, nor are its positive and negative side effects easily calculable. Despite all the pitfalls, however, the discussions on the system of higher education and its legislation need inevitably a continuous review. Continuous legislative reform safeguards democratic development and the rule of law. If a law is not updated regularly, ex ante legitimating political measures, it does not take long before people are no longer interested in what is, by democratic decision, written into it. Hence, the authority of Parliament and government will be questioned and democracy itself jeopardised.

1.2.1.3 Accelerating change

The relationship between the State and its citizens has probably the most complex features in the higher education and research sector.

Society changes the law and a new law changes society, but democracy and legislation move too slowly. Alvin Toffler (1970; 1981) wrote about the accelerating speed of the changes in a global society. International developments are dictating the national reactions of government and society. People adapt to the situation, but the accelerating change of society is not matched by an accelerating tempo of legislation. Hence, governments encounter increasingly substantial problems with the rule of law, their legitimacy and their parliamentary democracy, because their laws are simply no longer fitting. It is clear from many aspects and examples of nation al political crises, from the increased importance of judicial review and the increasing influence of pressure groups, that the real pitfall is not changing legislation. What should be achieved in the future is a state of continuous, partial, legislative reform to keep in tune with the accelerating speed of the changes in society. It is becoming a habit that a country revises its laws on higher education and research at least once per (regular) term of government. When the legislator remains aloof, and as long as internationally accepted values and norms are anchored in the law, stability and fairness are secured and earlier adopted laws are respected and transitional legislation well designed, this should not be regarded as a problem, but as democratic governance.

1.2.1.4 Modification versus codification?

In his analysis of the educational policies in central and eastern Europe, César Birzea (1994) argues that countries in a state of reform should not concentrate so much on the drafting of new education laws, as not everything can be changed by decree and a law is only an instrument, a tool of the reform and not vice versa. It may be true that, in fact, only little can be changed by decree as has been argued before. But that is not important.

Basically, there are two types of legislation: codification and modification.

• Codifying values and norms that are already legal practice is the first type. This type, as it serves consolidation, seems less interesting for countries in a stable situation and for countries in rapid transition. Nevertheless, codification of international values and norms is necessary to provide stability in times of rapid transition.
• Modifying legislation is an at tempt to achieve social goals in a democratic way with a legitimate outcome that is sometimes divided into rectification, modernisation and restructuring measures.