These are rather unnatural divisions. It is preferable to regard legislation as a holistic process, reform "par excellence", and not simply as a tool. Modification can not take place without regard to that which needs to be codified. There is a natural tension between classical fundamental rights, codification and the need for stability and consolidation that require a rather passive State on the one hand, and fundamental social rights, modification and the need for reform and innovation which require an active State on the other. The LRP emphasises the latter, not only because of its mission and principal territorial scope, but also because of the most interesting complexity and uncertainties of modification. Finding a balance between the need for both stability and change is a major challenge in the development of higher education and research systems currently taking place. Yet, codification and modification are the extremes of a continuum; in practice the single provisions of new legislation show a wide variety of mixtures.

Of course, change can take place without, or more rapidly than, legislation. This is, however, paradoxically not always necessary or desirable. Modification without a legislative process is, especially in countries during times of fast transition, political change, confusion or economic crises, sometimes even dangerous for democracy. Legislation is a public process that stimulates public debate if three conditions are fulfilled:

• the constituency is informed,
• it finds it important,
• and it has a say.

A legislative process can also attract international attention and thus international pressure, especially when developments tend to have negative consequences. In countries that wish to build a new democratic State and seek the legitimation that they missed for so long, legislation is even the only way, in spite of the trial and error that inevitably accompanies it. In the early nineties, most reformers in central and eastern Europe rightly gave priority to legislation in order to realise democratic values and norms but, unfortunately, there are tendencies to interrupt, neglect or even reverse this process.

1.2.1.5 The quest for models and standards

There are many ways to provide a legal framework. Some procedures will work efficiently and effectively in one country and fail in another. Some ideas seem to work well, others will certainly never work. The present state of the higher education system, the financial situation of a country and the political priorities and managerial culture of the system are predominant constraints when choosing legitimate legal instruments. A law, or a set of laws, must be tailor-made and cover the full range of the sector, including deliberate abstinence or full withdrawal of the legislature from certain issues. There are many principles and standards that govern the higher education and research sector. There is much in common that derives from national historical developments and the traditionally wide international contacts in the world of higher education and research. However, looked at more closely, it becomes difficult to formalise those principles and standards in recommendations, legislation or conventions or even a policy. The impressive legislative efforts in many European countries during the last decade, and the literally hundreds of books and thousands of articles per year seeking to identify some of these principles, is clear evidence for this. An internationally accepted model for legislation of higher education and research does not really exist. Standards change with underlying norms and values as the recent introduction of new quality assurance methods proves. Copying parts of good pieces of work from another country is also a risky operation. The spirit of a law, and its meaning, implementation and guidance under ever-changing conditions, is more important than its coincidental verbatim. Hence, implementation and interpretation of a law demands reasoning, not just reading. Key-stones of good legislation are the embedding in the internationally accepted legal practice, democratic governance and the adequate possibilities of appeal to an independent court.

1.2.1.6 How to do things with rules?

The main functions of higher education legislation are:

• to define the mission of higher education institutions and their relation vis-a-vis the State;
• to define the principal rights and obligations of students, staff, institutions and the State;
• to set down formal procedures for negotiating change, for containing conflict and for setting standards by which conflict may be handled in order to facilitate the interactive process management of the system, including mission-money relations.

The first two functions primarily only require reconfirmation of (inter-)national values, norms and conventions and seldom need important modification. The third function provides a structure for finding consensus within the system when problems arise or change is needed. This is a more complicated matter. Meaningful legislation in higher education and research consists neither of centrally regulating substantive details of the education and research process, nor a steering of details because details are as unpredictable as the circumstances in which the legislation is intended to provide a framework and, above all, the primary responsibility of the institutions.

Legislation should above all contain careful and democratic procedures of steering and governance of a sector. Subsequently, initiatives to change the law should not come only from the ministry or government. Ministers have to respond to legitimate policy propositions from students, staff, institutions and intermediate bodies. This sharing of responsibilities should be part of a legal structure of information, co-operation, and structured dialogue between all relevant parties in order to come closer to the idea of a self-steering and "inherently democratic" higher education system. The latter concept is derived from that of an inherently safe nuclear power plant, by extending the comparison to the warning that goes with nuclear power, one should be very careful with democracy. One can never be sure.

Much is possible and many changes are needed, in particular in central and eastern but also in western Europe. The dilemma is, however, that there are limits to the reforms, legislative or not, that a society, a system, an institution or a person can absorb within a given period. The question of what to aim at is often relatively easy to answer; to outline the process of how to achieve those objectives is more difficult. The last chapter of a law, the transitional provisions, is the most difficult, and usually the most neglected part. Increasing gaps between the law in the books and the law in action are becoming a visible obstacle. Subsequently, negative effects on the credibility of the government, the State, are dawning. In Europe, a new approach to legislation is urgently needed.