Saturday, September 12, 2009

Postulation on the Breadth of Legal Application

Recently I've been discussing a range of idiosyncratic situations with a friend, instances where the jurisprudential foundations of law seem strangely absent. The irony of this exploration has been that, on the one hand the persons responsible for a range of determinations espouse the fundamental precepts of legal equality, but on the other, behave as if it only applies to black letter application in law itself.

It has always amused me to observe that Universities, as the purported home of rational radicalism, are wedded to bureaucratic absolutism. How is it possible for a lecturer to be espousing radical reform to bureaucracy, only to find that they themselves are unable to offer flexibility in any sense where student attendance, submission requirements and the like are concerned? The defence is usually something along the lines of an exposition of the evils of the system and the inability of the said lecturer to mount any challenge to it! Odd really, when precisely the same conditions confront the average revolutionary in mainstream society. Such hypocrisy is usually overlooked and he oracular nature of the lecturer's statements continues to attract plaudits!

Similarly University administrations are tied to often ludicrously out-dated and outmoded administrative systems that are continually prone to error and anachronistic procedure. These same Universities will decry the bureaucracy in which they are in turn required to operate. Strangely, many of these governmental structures operate far more efficiently. In turn, Universities will suggest that there administrative systems would be substantially better, if only they had the requisite funding. Further investigation usually, at least in the Australian context, that there is ample latitude for flexibility, but that it is not utilised by the Universities themselves. They are fundamentally conservative institutions, even those most recently bestowed with the title and function of 'University'.

The peculiarity of this is not confined to universities as monolithic organisations; the very same deviations from fairness and equitable dealing can be seen in their approach to all manner of issues at a faculty and school level. Internal faculty procedures are deliberately difficult and burdensome, and often applied in accord with illogical and patently authoritarian presumptions. I work in a major government bureaucracy, and can report that we would certainl be unable to implement some of the organisational stipulations authorised inside universities and, particularly, inside their subordinate units. 'That's OK," say the Academics, "you're working for a government agency with far reaching implications as a source of your very existence and are required to operate within the law." So, where's the distinction? I'd suggest that there isn't one. Universities like to proclaim themselves to be experimental innovators, and sometimes this is true. Regrettably, this is not the case when it comes to bureaucratic flexibility and compassion for the case of the 'exception'.

Ironically, I've had cause to witness this failure inside a Law Faculty. The rule of law is taught as sacrosanct, but the internal machinations of the faculty make their own rendering of equity and fairness positively comedic. All manner of assumptions are brought to bear. Take a recent example where an academic actually suggested that students are all, fundamentally, liars! This was not merely a verbal assertion, but one written in an internal communication. Would this be acceptable anywhere else? I doubt it. The arcane mythology surrounding academic pursuit makes such anachronisms possible. The requirements on students to prove that they are truthful and not mendaciously self-serving mendicants is positively discriminatory and at odds with the very principles that form the foundations of law itself. Evidentiary weighting is not even contemplated, but it is presumed that students lack the moral or ethical fibre to be anything other than mendacious opportunists. Undoubtedly some do lack basic ethical and moral comprehension, failing to exhibit the required behaviours when it's necessary to do so, but they are no better, or worse, than any other group within the community. Why is it that legal academics cannot see the inconsistency in this situation? Is it that they retain the conservative traditions of academic institutional learning? Do they assume that the 'teacher' is superior and that, necessarily, it follows that students are of lesser standing, particularly where moral and ethical behaviour is concerned? Perhaps.

Being a mature student, I find it difficult to comprehend, and comply with, the submissive role that is, apparently, to be bestowed upon me. I am expected to simply accept decrees from my betters unquestioningly. I am expected to comply with whatever stipulation appends to an activity required of me. I am not expected to question or challenge the manner in which the 'system' works! How odd...

I fail to see how a truly honourable institution, in the 21st century, can hope to be relevant with such draconian and anachronistic values and expressions at its core. The 'University' has begun to exhibit signs of decay and irrelevance, at precisely the time when it should be seeking to adopt new and innovative programs and institutional behaviours. Some elements within the university structure are clearly striving to adopt new models of operation; sometimes in a rather spurious and less than agreeable fashion: take, for instance, centres that now rely on commercial transactions and extramural funding. Such units have an awful tendency to completely abandon the virtues of academic scholarship in an effort to be innovative and exploratory. Some will, undoubtedly succeed in better defining and applying this new construction in a perfectly acceptable manner, but others run the risk of becoming little more than machines for whatever fashionable pursuit requires the veneer of academia. In doing so, some will become little more than sources of affirmation for political agendas that require a semblance of external objectivity. Others may be tapping into sources of income that have little if any impact on their individuality, or their independence. It will be interesting to witness how they modify themselves to cope with the ingrained conservatism of the broader institution within which they operate. I am not entirely pessimistic; I wholeheartedly believe that even a failed experiment is all the better for having been conceived and run. My wish is that some other institutional entities should be, at the very least, investigating what other operational options exist in realising a better eductional experience for those who attend them.

The other issue for universities to address is the new dynamic that exists between students and faculty. Thanks to the introduction of fees, students are now 'consumers', or 'customers'. This confers certain rights upon them, and it is high time that universities recognised the newly formed relationship that exists, distasteful as that may be. I'm not in favour of fee paying tertiary education. I think the freedom and liberty afforded students in a non fee paying environment is far preferable, but the economics of modern education, when linked with fear of communal cost in the absence of individual return, makes such systems inevitable. Australians hate to think that they pay taxation for the benefit of others: we are not great communalists. In fact, we are now faced with situations where political opponents of public expenditure cry foul when there is not a case supported by cost-benefit analysis. When did provision of public services ever become a question of cost-benefit analysis? Why must there be a monetary benefit in public expenditure? In short, the people calling for such an analysis fail to comprehend that the benefit is frequently less obvious than an immediate "return on investment": another favoured mantra for the merchant bankers that inhabit our parliament. There is a "return" and we all benefit from it. A well educated populace will always result in a better "return" for all! The consumer based model inherent in the current system is at odds with the conservative traditionalism of academia, and, simultaneously, fails to deliver in the same way as other business models in the private sector. It's about time this was realised. And, it's about time universities relinquished their hold on time honoured dichotomies in their management of students and realised that there is value in adopting a new model.

All in all, Australian universities are managing to compete in a global marketplace with almost uniform success. Quality is, however, variable. This is not simply a variation in academic quality, but a distinct difference in the quality of administration and student - institutional relations. Some perform very well, others are exhibiting 19th century attitudes in a stifling, even dysfunctional environment that makes receipt of student payment sheer theft!

It's time not just to contemplate alteration to funding models, but reform of the manner in which universities conduct themselves as institutions. Too little will see them lose their client base, students! The status quo will merely demonstrate that the foundations of equity, justice and fairness do not penetrate the impermeable walls of institutional conservatism!

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