University of Transnational Business Law

http://www.magna-charta.org/

Email: andre.oosterlinck@associatie.kuleuven.be
© The Authors. Volume compilation © 2013 Portland Press Limited
Accountability, the Magna Charta
Universitatum and the Bologna
Declaration
André Oosterlinck

KU Leuven, Belgium
The word accountability has no appealing ring to it. It is a term that many associate
with invasive scrutiny, endless responsibilities, equally endless paperwork etc. The
bottom line is that we do not like accountability – it’s a pain, full stop. So, let’s get
rid of it.
What remains is absolute freedom, the freedom to do whatever we
like, wherever we want, whenever we want and in whatever way we want. In an
academic context, getting rid of accountability will lead us in a fast lane to complete
academic freedom. It truly sounds like paradise.
Or does it? The question is: would an academic world without account-
ability really be the paradise we are after? Is complete academic freedom really
what fills universities with utter bliss? Indeed, academic freedom is a jewel in the
crown of universities, but only when that freedom is balanced by a counterweight,
and that counterweight is called ‘accountability’. Freedom without balance, or
even limitations if you want, leads to chaos. It may sound strange, but we will
argue that academic freedom becomes stronger when it is limited. Those limits
should be the result of a well constructed system of accountability measures.

What academic freedom is not
Academic freedom has been widely discussed, both inside and outside of universities,
in newspapers and courtrooms, in governmental organizations, and during
receptions or walking dinners. Not many people will seriously question the need
for and the importance of academic freedom.
Yet, are there limits to it? For some, this question is a nobrainer.
Academic freedom, in their view, has no limits. Research and teaching can be done in
any way imaginable, even by teaching and researching badly, even by not teaching
or not researching. Although it might be true that one or two professors would do
the world a great favour by not teaching or by not researching, most people will
agree that academic freedom cannot be misused as an excuse for laziness or silly
behaviour. So, in this sense, academic freedom is not absolute. Some have misused
academic freedom to express themselves in making insulting, ludicrous or simply
unwanted statements, and some have misused academic freedom to give their
opinion on matters in which their expertise is, at best, questionable. Academic
freedom is not the same as freedom of speech.
Obviously, anyone, also a professor is entitled to his opinions and the right to express them,
at least within the limits of the law.
The mere fact of belonging to the academic community, however, does
not create some sort of special or more elevated level of freedom. Probably the
contrary is true. Belonging to an academic community should inspire its members
to be especially careful in expressing an opinion, in particular when they are not
talking about matters within their own area of expertise.
What, then, is academic freedom? What are its true and useful limitations,
or more positively, its checks and balances? There are a couple of very fundamental
documents that will help us to answer these questions.
Academic freedom in two European policy documents
Every now and then, universities or their environments produce texts that are
worth remembering. Sometimes, at the time of their writing, it is not very clear
whether or not these texts will survive the next 10 or 20 years. It is also not clear if
they will have a real influence on academic thinking. In the past 20 or so years, two
of these texts have been written. One is the ‘Magna Charta Universitatum’  and
the second is the ‘Bologna Declaration’.

The Magna Charta Universitatum
The year 1988 was very festive for the town of Bologna. Its university, the oldest
in Europe, or, arguably, in the world, was celebrating its 900th anniversary. The
university rectors attending the ceremonies felt it the proper time to publish a
text in which the very heart of the university was defined. The result, the Magna
Charta Universitatum, was remarkably short for such an ambitious goal, at only
one-and half A4-size pages. The success of the text was very considerable. In the
meantime, the initial signatories have grown to more than 700 universities, most
of them from Europe, but the number of non European universities is steadily
increasing. It was a text meant to inspire, a visionary document, on a par with
“I have a dream...” (Martin Luther King Jr, 28 August 1963). The Magna Charta
Universitatum consists of three parts, a ‘Preamble’, four ‘Fundamental Principles’
and four so called ‘Means’, to turn these principles into reality.
In the preamble, it is very solemnly stated that:
“the future of mankind depends largely on cultural, scientific and technical
development; and this is built up in centres of culture, knowledge and
research as represented by true universities.”
Simply put: without universities, we have no future. This is more or less repeated:
“universities must give future generations education and training that will
teach them, and through them others, to respect the great harmonies of their
natural environment and of life itself.”
These are not words that we read or write every day. The rectors undersigning the
text were very well aware of the scope of their text.

Accountability, the Magna Charta Universitatum and the Bologna Declaration
© The Authors. Volume compilation © 2013 Portland Press Limited
“The undersigned Rectors of European universities proclaim to all States
and to the conscience of all nations the fundamental principles, which must,
now and always, support the vocation of universities.”
The Magna Charta Universitatum goes on to list four fundamental
principles, the very basis of the very idea of a university:
“The university is an autonomous institution at the heart of societies
differently organised because of geography and historical heritage; it
produces, examines, appraises and hands down culture by research and
teaching. To meet the needs of the world around it, its research and teaching
must be morally and intellectually independent of all political authority and
economic power.” This expresses one of the basic meanings of academic freedom,
and at the same time, one of the basic tasks of universities.

The Magna Charta Universitatum goes on:
“Freedom in research and training is the fundamental principle of
university life, and governments and universities must ensure respect
for this fundamental requirement.”
The solemn tone continues:
“A university’s constant care is to attain universal knowledge; to fulfil its
vocation it transcends geographical and political frontiers, and affirms the
vital need for different cultures to know and influence each other.”
The Magna Charta Universitatum concludes with a call for effective means in order
to make this vocation feasible. It states that the required instruments have to be made
available to all members of the university community, that research and teaching are
inseparable, that students must have certain freedoms and possibilities to acquire
culture and training, and that mutual exchange of information and documentation is
required for the steady progress of knowledge.
Then, before the actual signatures are put, another remarkable paragraph
is added:
“Therefore, as in the earliest years of their history, they encourage mobility
among teachers and students; furthermore, they consider a general policy of
equivalent status, titles, examinations and award of scholarships essential to
the fulfilment of their mission in the conditions prevailing today.”
This clearly sounds similar to an anticipation of the second fundamental university
document, signed once again in Bologna, 11 years later.
What is very striking is that both texts are considered to be expressing
the very heart of our universities, but that both are also at the same time very
different.
The Magna Charta Universitatum talks about very high principles, one
of them being academic freedom. It does not hesitate to use highly venerable
words, such as ‘universal knowledge’, ‘now and always’, ‘the future of mankind’,
‘life itself’ and so on. Obviously, a text such as this is not meant to be used as a
day to day instrument. It needs to be operationalized. Part of that was taken care
of by the Bologna Declaration. This document talks about down to earth measures
required to create what is called our ‘European Higher Education Area’.
A second important difference is that the Magna Charta Universitatum
was a university initiative, written and signed by university representatives. The
Bologna Declaration, on the other hand, was signed by government representatives.
The Bologna Declaration
Compared with the Magna Charta Universitatum, the Bologna Declaration clearly
evinces a difference in tone and a different set of essential components.
The first pillar of this document is the comparability of programmes,
in terms of their structure and of academic degrees. Considering the labyrinthine
educational structure in various European countries, Bologna was aiming at a swift
and fundamental reform to clarify things. The result is supposed to be a system
that would create an educational system to be used throughout Europe, making
it easy to compare university programmes, and at the same time protecting its
rich variety. Outside of Europe, our system would finally become understandable
and transparent. This was considered to be of vital importance, because the
educational world was quickly becoming more and more internationalized and
globalized. Hence, the idea of competition was gaining relevance. The idea was
that a European university degree was to compete with the leading universities in
the U.S.A. In addition, other global considerations came into play, for instance,
the emergence of Asian nations and Australia. This would create the framework
for global competition, involving players that were, up to that period, of minimal
relevance to the European educational system. Higher education would soon
become a significant part of a country’s international profile and its exports.
A second characteristic, reminding us of the closing paragraph of the
Magna Charta Universitatum, is the mobility of professors and students, getting
rid of all practical obstructions.
Thirdly, the Bologna Declaration wants to harmonize our educational
system in a two-cycle structure. The first or bachelor cycle would consist of 3
years, and would already lead to a certain level of professional qualification. The
second or master level is meant as a high-level contact with the world of science,
and it should prepare the students for a Ph.D.
A fourth element contained in the Bologna document is ‘Lifelong
Learning’, designed to be more of a mental shift, a change in our attitude towards
studying. Instead of limiting studies to a certain period in one’s life, studying
would become part of our entire life. A series of tools would be designed to make
this practically possible, one of them being the ECTS (European Credit Transfer
System).
Finally, the Bologna Declaration also wanted to establish an internationally
transparent system of quality assurance. The urge to shape this quality
guarantee would evolve into a system of accreditation, in which a group of
independent and trusted experts would carefully weigh a programme. A positive
report would become a requirement to further organize the programme.
There are other elements in the Bologna Declaration that are of obvious
importance, but for our purpose, we can make do with this list.

Magna Charta Universitatum compared with the Bologna Declaration
The main difference between the Magna Charta Universitatum and the Bologna
Declaration is, obviously, the level of practical applicability. There is also a
deeper difference, related to the different historical contexts from which the texts
originate.
When the Magna Charta Universitatum was written in 1988, Communism
was still very much a reality. The Iron Curtain was still there. Also in Western Europe,
the idea of borders had not yet diminished to its current level.
The Maastricht
Treaty was still 4 years away. State borders were still quite tangible. Maastricht
would turn the economic community of Europe into a political community of
some sort. In the Magna Charta Universitatum, explicit mention is made of that
important event. In the 1988 context, freedom was still a genuine political goal to
achieve, and it is not surprising that the Magna Charta Universitatum gives it so
much explicit attention.
In 1999, when the Bologna Declaration was signed, the situation had
changed dramatically. Communism was gone. Open borders were a reality,
and the exchange of students and international collaboration had become very
successful. Our whole world has changed. Globalization has shaken the very
roots of our economy. New countries have moved to the top. New concerns have
come. Sustainability and the future of our planet have become a part of our agenda.
Information technology has made drastic changes in the way we deal with our
world. Knowledge is taking up a far more central position in our world than it has
ever before and that makes universities the key players in the way that the Magna
Charta Universitatum considers them.
Things have indeed changed since 1988. However, this does not render
the Magna Charta Universitatum obsolete. Its focus on freedom has not become
old and worthless, quite the contrary. But it needs to be modified, simply because
the world in which universities exist has also changed.
Let us now try to find out in what way we can both preserve the basic
idea of academic freedom and give it the necessary space to survive in our modern
world.
Institutional academic freedom and autonomy in a new world when talking about
academic freedom, usually two aspects or manifestations are
distinguished, both of which are present in the Magna Charta Universitatum. The
first we can call ‘institutional academic freedom or institutional autonomy’, and
the second we call ‘individual academic freedom’.
Institutional autonomy protects universities from undue interference by
governments. There has always been a rather tense relationship between universities
and state government. Universities suspect states, and states suspect universities,
at least in theory. Even Wilhelm von Humboldt made it clear: “The state
should always remember that it cannot and must not do the university’s work for
it, and that it hinders that work whenever it intervenes”.
That may be true in the purely theoretical sense of the word, or in the
sense that governments should not, and will not, dictate what universities must
teach or what they should research. No European government in its right mind will
do this, at least not any more. There may be levels of academic freedom, one country
allowing more direct state intervention than the other, but the bottom line is still
that universities enjoy a high degree of institutional autonomy, at least in a European
context. The Magna Charta Observatory of Fundamental University Values and
Rights, a non-profit organization founded by the University of Bologna and the
European University Association, is currently moving its scope more to countries
outside Europe to promote the ideas of the Magna Charta Universitatum.
Institutional autonomy implies the right of universities to design their
own internal structures (faculties, departments etc.). It also implies that they are
entitled to develop their own policies with regard to their governance, for instance,
the right to either appoint or elect their top-level authorities (rector, deans etc.).
In addition, self-evident is their right to manage their own patrimonium. With regard
to the programmes and degrees they offer, autonomy should go as far as possible,
but not to the extent that all universities can program all degrees: that would cause
huge problems with regard to the ‘critical mass’ that modern science and modern
education require. Governments could carefully design minimum criteria that a
university should live up to before it could offer a new programme.
Institutional academic autonomy is vital, but it is not absolute. The first
reason is very simple. Most universities receive at least part of their finances from
governments. It is self-evident that this financing mechanism leads to at least
some sort of accountability. Universities will have to report on the way they use
government-supplied money, paid by taxpayers, and, in turn, governments will
have to account for the way they have managed taxpayers’ money in parliament
and at the ballot box. In this sense, accountability can never be considered a burden,
although in its practical application, attention should be given to a ‘administrative
feasibility’: not all reports and not all procedures are equally important.
Higher education has become a social good, and this has considerable
ramifications. Universities do not reside in ivory towers any more. They are firmly
rooted within society, which grants them a substantial number of privileges, but
which expects something in return – transparency, to begin with. An ivory tower
university would simply not be acceptable any more. Openness and democratic
accessibility have become part of everyday life. This simple realization is enough
justification for a university’s duty to ensure transparent management and
undisputed accountability.
Probably the best way to reconcile the university’s genuine claim for
freedom and autonomy and the government’s equally genuine claim for accountability
lies in competition and envelope financing. Competition, at least when it
is based on transparent criteria, guarantees the best possible allocation of financial
means. And envelope financing, which means that the government does not deal
with details, but only guarantees a lump sum, will lead to budgetary discipline
within the universities, who develop their own internal quality standards in
order to further divide the lump sum. These quality standards will guarantee that
those with the best results will be given preferential treatment when the envelope
is divided.
Result-based financing has, therefore, become the fair and sociallyacceptable approach.
Later, we will discuss in more detail how the need for good
results affects a university’s freedom, while becoming its fundamental protection.
Academic freedom, accountability and research
Accountability is not only a matter of financial transparency with regard to their
financial sources, however. Whereas universities used to find their right to exist
within themselves, this has now changed into an awareness of their stakeholders,
to whom they have very clear and undeniable responsibilities. Our staff, students,
alumni, the world of industry and business, and even society at large, are all closely
watching what universities are doing. All are expecting a certain behaviour and a
certain return on the investment of their time, money and trust. They all expect
universities to behave responsibly, which can take many shapes.
With regard to research, academic freedom in this new context can be
described as the right, but also the duty, to perform top quality, innovative and
ground-breaking research, to the full extent of one’s creativity. In this perspective,
accountability is not only normal, but also required in order to safeguard the
quality of the research being performed. Nobody is telling universities to do this
or that particular type of research, which is to be selected in responsible freedom,
on scientific grounds, but our stakeholders do expect us to perform research of the
best quality level we can manage.
Yet, up to what extent? Are governments, other financial suppliers or
even society at large entitled to dictate the way that universities are governed?
Are they entitled to dictate what is being researched and what is being taught in
the classrooms? Obviously not. Governments should make sure that they limit
themselves to a clear set of control criteria. They should make sure that legitimate
control is as unobtrusive as possible. This means: cut back on red tape and limit the
administrative impact of government intervention.
Society expects research to be relevant. Does this mean that only research
with a very clearly utilitarian character deserves to be supported? Not at all, of
course. Research, by its very nature, is a leap into the unknown. In particular,
fundamental research is targeted by those who claim that research needs immediate
applicability. They forget that the research outcome can only be predicted up to a
certain level. Limiting research to what is predictable would be a severe handicap
for our chances of tackling some of the most urgent problems of our time. Any
sensible government will, therefore, make sure that fundamental and applied
research are both given equal opportunities in matters of finance. Especially with
regard to long-term financing, due attention should be given to the particular
needs of fundamental research.
Be that as it may, research with practical possibilities has become an
important part of what universities do. Some still feel that this limits our academic
freedom in unwanted ways. They claim that contacts with the world of business
or industry could put our researchers in shackles, that they would be compelled
to heed ‘his master’s voice’, and lose their independence. To be sure, there are
examples of unwanted aberrations, but these are extremely limited. Due care
should be given to good and clear criteria as to what can be done with research.