The Council of Europe, civil society, and the reformation of hi

Civil society and the reformation of higher education in central and eastern Europe

Once upon a time there was an evil empire, held in bondage under powerful spells by a mighty line of sorcerers. But their successors did not have the strength to maintain the spells, which decayed and eventually snapped in revolution. In the last decade of the foundering empire, rebel wizards seeking a better magic revived an ancient lore, long forgotten in musty libraries by their allies from the West. Such was the triumph of the rebellion that the name of civil society has become something of a mantra, an empty banner under which all can unite. It seems churlish to point out that the original theory has a content that is important, ambiguous, and not entirely correct.

What does the phrase “civil society” mean?
In the original sense of the philosophers of the Scottish Enlightenment (Adam Smith, David Hume, etc), “civil society” is a characterisation of society as a whole, an ideal type contrasted (none too systematically) with the tribal, theocratic, and patrimonial societies that made up most of the world at the time (Ignatieff, 1995). The emerging civil society in which they lived was essentially secular. It had renounced the goal of moral unity and settled for the minimum of common values needed to maintain itself. Its political foundations were negative liberties, including private property and freedom of association, recognised and protected by a limited state. Competing private interests were accepted as perfectly legitimate, reconciled with the common good by checks and balances and the rule of law. Crucially, Enlightenment civil society did not imply democracy. In the 1970s this made it a particularly attractive doctrine to the anti-communist intellectuals of Poland and Czechoslovakia, who sought to pull the mantle of legitimacy away from undemocratic régimes on to the non-governmental movements whose ideologists they were. Civil society could grow under the decaying branches of communist oligarchy, as under the ancien régime of France.

However, this analysis was only transitionally valid. How far does it still make sense in established democracies? The American and French Revolutions forged a bond between civil society, human rights and democracy that is now indissoluble.^² Under the label of "democratic society" (European Convention on Human Rights, Article 6), this three-legged concept is the political system the Council of Europe exists to promote. All its activities, in its old as well as its new member state, are straightforwardly related to this ideal.

The second, and more common, sense of “civil society” is limited to social structures outside the state. Taking this systematically, it would range over families, clans, large and small private businesses, clubs, charities, political parties, trades unions, churches, and criminal gangs. Looking over this list, it is immediately striking how very heterogeneous it is. From a moral standpoint, one would immediately want to differentiate between worthy structures - families, churches, charities, the International Committee of the Red Cross; morally neutral ones – firms, golf clubs; and bad ones – crime syndicates and the Nazi Party. However, the theory of civil society (first sense) questions whether such sweeping distinctions can be made from the public viewpoint of the rule of law. In a civil society, as in the Einsteinian universe, there is no privileged viewpoint. All the state may properly do is legislate against behaviour that harms other people^³, and encourage a diversity that provides checks and balances against abuse by “over-mighty subjects”. Famously, Adam Smith, the apostle of laissez-faire economics, was deeply sceptical of the moral qualities of capitalists.

There is, in this second sense, no object called “civil society” which may be the target of policy or legislation. It is simply society minus the state. Neither the Council of Europe nor anyone else has a policy to encourage “civil society” as a whole, other than the crucial constitutional limitation of the state. Beyond this crucial step, the state faces different sets of issues about businesses, the mass media, families, and so on that it must address within its limited powers, and that is all.

The third sense of “civil society” is reached through the distinction between associations based on contracts (standard type: the capitalist firm) and those based on voluntary adhesion (standard type: an unestablished church^⁴). ”Civil society” is often used to refer only to the second group, and is thus similar to the “voluntary” or “third sector”. In this sense it still has very little coherence as a concept. Its boundaries are unclear: does it include churches? trades unions? political parties? Or only lobby groups and charities? Some aim at advancing a common interest of their members, in the private (golf) or public (animal welfare) domains; others at doing good (charities); others simply at pleasure (amateur rock bands). On what grounds can we say that civil society qua third sector is important as such?

There is one common feature: the state and capitalist business are both creatures of law, whether private, public or contractual, and like the Merchant of Venice subject in the minutest detail to its obligations. The third sector is on the other side of this particular fence. Its spring of action is voluntary consent, and the law is only a boundary. It is therefore open to infinite mutability and creativity in its forms and action.

This Protean character also distinguishes the third sector in psychological terms. The market economy requires fidelity to obligations, habits of negotiation, rational choice; the democratic state self-control and orderly argument. It’s all a bit dull, and necessarily so – that’s the root of Nietzsche’s objection to liberal democracy. A society that had only the Puritan virtues would surely risk, through too much order, sliding into de Tocquevilles’s “gentle despotism” (de Tocqueville, 1840). The capitalist economy, the democratic state, and the third sector of civil society call for and nurture different attitudes and habits, all of which are needed. It is the third sector that develops altruism, spontaneous collective action, and the forming of personal relationships around it. We see this for example in culture. Cultural life is partly a form of commerce, but is also rooted in voluntary action. Can we imagine professional music or sport without amateurs? Could the Internet have been created by government or business? The third sector is in this view society’s libido, the space in which it renews itself for good or ill; and its health is of vital importance. In the remainder of this article, I will use civil society in this sense.

It would be misleading to claim that the Council of Europe fully shares this high view of civil society. It takes part in the debate on civil society, but official positions are rare. The term was not used as such before a recommendation in 1993 (see below), and has never been a central theme of its work. The absence of a doctrine of “civil society” is no accident. The Council’s intellectual baggage reflects 50 years and more of essentially western European experience. It began as a club of democracies where freedom of association was recognized from the start, part of the common ground, not a goal to be fought for.

As pointed out above, the guiding concept of the Council has been “democratic” rather than “civil” society. This reflects a fundamental tension in the history of political ideas. Edmund Burke attacked the French Jacobins for their attempt to build a just society from abstract first principles, which he considered hubristic, ahistorical, and doomed to failure. He contrasted this with the organic, step-by-step emergence of English liberties, which were consequently stably rooted in institutions and social practice. His criticisms had force, and anticipated those of the central European intellectuals of the 1980s, directed against an ideology in the same idealist tradition. But we must recognize that the Jacobins had considerable right on their side too. They wanted universal critical principles of justice, not just a celebration of one lucky country; and these principles must include equality of citizens before the state, not the hereditary privilege of landowners. Self-organisation (most notably through the capitalist economy) generates inequalities which may seek to establish themselves through politics.^⁵ Lobbies for special interests will try to hijack the political process, and prevent the identification of the common good by public-spirited tribunes.

The modern liberal synthesis seeks to balance these arguments. There is a necessary tension between the needs for secured individual rights and equality, and for self-organisation and community. The former imply an active and effective government; the latter call on the state to assure a wide space of negative liberty, especially the freedoms of association and contract, and to accept the diversity and inequality that is its inevitable result. Western European countries have inherited very different traditional positions along this line: French republican suspicion of intermediate bodies (private associations were first recognized as fully lawful in 1901), paternalist co-optation in Bismarckian Germany, the preference in the social-democratic Nordic world for egalitarian state solutions, and Victorian British enthusiasm (see Guthrie, 1994).

The body of European standards and good practice developed by the Council of Europe since 1949 fully reflects this tension, and indeed may be thought to tilt on the Jacobin, interventionist side. The demands of post-war reconstruction, and the driving need to prevent the recurrence of the social and economic conditions that had allowed the growth of Nazism and Soviet Communism, ensured that western European states were, and remain, markedly more activist that the United States. The interventionist European Social Charter of 1961 illustrates this perfectly. In general, the Council has interpreted the rule of law in two ways: the securing of fundamental human rights (laid down in the ECHR), and the production of models of activist legislation to resolve a wide range of challenges to social policy.

In its actual dealings with the third sector, the Council of Europe has been fairly conservative. Like other intergovernmental organisations the Council has developed formal and informal links, often very active and friendly, with large numbers of international NGOS that share its values, are interested in its activities, and disseminate them in exchange for modest input. This mutual support does not translate into power-sharing. The only legal instrument on the non-governmental sector is the 1986 European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations; this only requires mutual recognition, not the harmonisation or liberalisation of national policies. A more adventurous language on the social value of the voluntary sector can be found in the “Vilnius Declaration” of 1995, but that has not been given official status.

Trades unions and youth are interesting special cases. The tripartite, “social partners” model of social policy is recognised in the supervision mechanism of the European Social Charter, but the mechanism is weak, and tripartism is found nowhere else in the Council’s work. The youth sector shows a similar pattern. Following the student upheavals of 1968 (a traumatic cultural shock for policymakers, greater than their scale and direct political effect warranted), youth participation in politics was anxiously accepted as necessary. The Council devised programmes to co-opt this strange new force and guide it into traditional channels (European Youth Centre and Youth Foundation). These are run on a co-management model. The more grandiose claims occasionally made by youth representatives for a real share in policy formation have foundered on the constitutional rock of the exclusive legitimacy of elected parliaments as representatives of the popular will. Only recently has the Committee of Ministers adopted Recommendation (97) 3 on youth participation and the future of civil society (undefined, but used as a synonym for the voluntary sector).

One may ask whether this conservative stance is realistic. A dynamic civil society is changing the rules of the game as much in all parts of Europe. National parliaments, and sometimes even ministries, are struggling to defend their position as real fora for policymaking, against television, street theatre, the press, think tanks, and now the Internet.

In its response to the democratic revolutions in central and eastern Europe, the Council’s expansion has been dictated by a double test: commitment to human rights (signing the ECHR and one or two other key texts, such as the conventions against torture and on national minorities), and to parliamentary democracy (holding fair multi-party elections). Civil society issues, such as media diversity and freedom of political association, have been given a subsidiary if important role in this framework. They have it seems been given higher priority in the new process of monitoring of accession commitments, and in the many assistance programmes set up to ease the transition.

The Council has been constrained by practical as well as ideological considerations. It is an inter-governmental, inter-parliamentary, and judicial organisation, and this defines its main areas of expertise. Its interlocutors are therefore basically state bodies, though much work has also been done with the media and youth organisations. The main focus has naturally been the constitutions, laws, and public institutions of the new member countries.^⁶ The aims have broadly been two:

Education is not, in any part of Europe, really part of the third sector. The challenge for the Council has therefore been to support the reform of educational structures as part of the public sector under the aim of the rule of law; and, second, to encourage the reform of educational content to support democratic citizenship. The specific issues have been rather different in school and higher education.

There is no argument about the status of school education as an essential free public service, the corollary of its compulsory nature. Historically, the main issues in western Europe about the boundaries of the state’s role have concerned the rights of parental conscience over religious and moral teaching (see Protocol 2 to the ECHR). In France, the argument over private schooling is over religion, while in Britain it is about social privilege. In any case, private school education is an unaffordable luxury in the new member states, and has not been an important issue in the Council’s work there. In contrast, issues of national, ethnic and regional identity have been as central in the new members (Bosnia, Estonia, Latvia, Romania, Slovakia, ...) as they have been in Belgium, Catalonia, and Northern Ireland. Where the issue is tied up with language, the Council’s Charter on Regional and Minority Languages and the Framework Convention on National Minorities (Council of Europe, 1992, 1995) have put forward European standards of good policy. This has little to do with civil society in the narrow sense.

More germane has been work on curriculum reform. The three priorities have been languages, history, and civics. They all address crucial questions of the balance between the integrative and critical functions of education, and the breadth of the cultural and civic identities that schools seek to inculcate. As you would expect, the Council’s advice tilts towards the development of the critical capacities and free group identification of each individual, and a sense of civic responsibility that transcends community. A multilateral project on education for democratic citizenship, extended by bilateral projects in Albania, Bosnia and Herzegovina, and Russia, is mainly aimed at preparation for democratic politics and respect for universal human rights. They also give a place to civic society in two ways: by supporting parental and pupil involvement in the governance of schools (a particular feature of the work in Albania), and encouraging extracurricular social service by school students. However, these elements are given lesser weight that the development of professionalism and good practice among teachers^⁷.

Universities, unlike schools, have kept far more of their cultural roots in the civil society of the Middle Ages – they started out as private clubs, raised into the public domain by charters of privileges from princes and bishops. While almost all institutions of higher education in Europe are now legally bodies of public law, they do not see themselves as part of the state machinery but as autonomous agencies. They are well aware that their daily work of teaching and research could be, and often is, carried out in purely private organisations or by individuals. Their only inherently public feature is certification, especially for the exercise of professions like medicine, law, and engineering that are regulated because incompetents are dangerous to everyone else. The rationale for state involvement is expediency: it finances higher education in all countries to secure wider and more equal opportunity, and compensate for the inevitable under-provision if it is left to the market.

It should not do so in order, like Stalin and before him Napoleon, to secure an obedient professional class. The civil society perspective (here in the first sense) makes two demands on higher education:

The Council’s instrument for work on the reform of higher education in the new member countries has been the Legislative Reform Programme for Higher Education and Research (LRP), set up in 1992. The LRP has carried out over a hundred advisory missions of small teams of experts to discuss impending legislation with ministers and other players, as well as seminars, study visits and publications. As in other fields, much of the subject matter cannot be brought under the “civil society” heading without forcing. The agendas have been set by the host countries; only the response to their practical concerns has reflected the Council of Europe’s values, and those of the western European countries that have provided the bulk of the expertise. The list that follows does not therefore represent a preconceived checklist, nor is it in any way complete.

The LRP has not questioned that higher education should essentially be kept in the public sector, governed by public law. Whatever the theoretical merits of a system of fully independent universities from a checks-and-balances perspective, it is quite impracticable if you want wide opportunity, and is contrary to European traditions. A public system requires however a carefully designed scheme of governance, laid down in legislation, balancing a general principle of autonomy with defined areas of accountability.

This limited accountability of higher education institutions is important not only to the government but to other parts of society. It is less a matter of reports and inspections, than of internal self-examination and transparency to society as a whole. Two key areas of accountability are assuring a professional quality of teaching and research, and fair and equal access by students (see the Council’s Recommendation R(98)3 on access to higher education). While most countries have made great strides towards modern systems of governance and quality assurance, much remains to be done in the second area: reliable school-leaving qualifications, transparent admission procedures, effective monitoring of student progress, and serious policies for equal opportunity encompassing women, minorities, disabled persons, and those on low incomes.

The LRP has welcomed the fact that the new legislation of many countries clearly affirms academic freedom. This means that teachers and students should be immune (unlike civil servants or the employees of businesses) from any contractual or disciplinary sanction for unpopular opinions, including criticism of the government and the institution, within the general bounds of the law. The idea here is very much a “civil society” one: universities should be places of vigorous, non-deferential and pluralist debate on everything, including the behaviour of government and business. Bruising, informed criticism is rarely welcome, though it is essential to the health of democracy. The Council is preparing a recommendation on the social sciences affirming this principle, which may be uncongenial to governments in western as well as central and eastern Europe.

The right of association of students and staff has been more contentious. In reaction to the abuses of the former Communist parties, some countries have proposed total bans on political activity on campus. The LRP has advised against such bans, as unsound in principle and unenforceable in practice. Instead it has recommended leaving it to institutions to set up sensible disciplinary procedures against specific abuses.

The LRP has paid particular attention to the position of the rector, the university’s spokesman to government as well as the government’s steward of its funds. Secure autonomy calls for the institution to elect its rector for a fixed, and not too short, term of office. The rector should only be removable for cause.

Student participation in internal government has proved quite contentious, as it played no part in the communist or pre-communist traditions of the new members. Guided by the generally positive experience in western Europe since 1968, the LRP has commended limited student participation, as more democratic in principle, harmless or beneficial in practice, and of educational value to the student body. (Other forms of student collective life, including political and cultural associations, are probably more significant in practice in involving students in civil society.)

The role of outsiders (especially from business and local government) in governing boards has been widely debated. The latest fashion is for "trustees", a concept which only really makes sense for private US institutions with substantial endowments. The LRP has thrown cold water on hopes that such devices can get round the problem of defining the relationship between government and public universities in law. That said, external members on governing bodies can be helpful – though the internal leadership is always likely to be more important.

The LRP has thought that similar principles should apply to non-university higher education institutions as to universities; they are not schools either, but communities of responsible adults. There is no reason to believe that independent judgement is less necessary to nurses and ship’s captains than to economists and lawyers.

The boom in private higher education in central and eastern Europe has no precedent in western European experience, and has forced the countries to innovate in their response. The LRP, and later the Council of Europe as a whole in Recommendation R(97)1, has welcomed the principle of fair government regulation of the private sector in the interests of protecting students and employers. It has also endorsed the setting up of professionally independent accreditation committees, acting as advisers to government on the recognition of private institutions. The aim should be to ensure comparable quality to the public sector; many countries are entrusting the quality assessment of the public sector to the same accreditation committees, as in the USA. Through a programme of study visits, involving the new quality agencies in western Europe, the LRP has contributed to the spread of good practice.

The most difficult case has been met in “the former Yugoslav Republic of Macedonia”, where the unrecognized “University of Tetovo” has linked educational issues to the very sensitive question of national minorities. In a carefully prepared written opinion, the LRP distinguished between: the exercise of a fundamental right to educational association; the public functions of state oversight of quality standards, recognition of the title of "university" and conferment of the power to award degrees; and the political question of the expediency of public subsidy to private institutions, taking account of the obligation in the Framework Convention on National Minorities to ”ensure equal access to education at all levels”.

Conclusion

The Council of Europe has, it seems to me, done all that could reasonably have been expected of it to secure the conditions for a healthy relationship between higher education and civil society. But this work is limited, precisely because the crucial insight of “civil society “ is that much necessarily escapes the eye and the arm of the state. In spite of its domination of the argument and amazing political victory, the civil society of 1989 central Europe, let alone eastern Europe, was still impoverished. It is growing apace, and the situation is now far different. The universities have also won the argument for their autonomy, though they remain seriously underfunded. Little but the habits of dependence on the state, and academic self-sufficiency, now prevents them from meshing in many ways with the burgeoning voluntary sector. The model for the university is not after all the cloister or ivory tower, but the urban church or mosque with open doors, where citizens enter to acknowledge values that are not entirely those of the city, and return to the city refreshed, to face its manifold daily pains and pleasures with a clearer mind.

Guthrie, Robin, “Civic, civil or servile? the Henri de Koster lecture”, INTERPHIL, Geneva, 1994

Ignatieff, Michael, "On Civil Society: Why Eastern Europe's Revolutions Could Succeed”, Foreign Affairs, March/April 1995

de Tocqueville, Alexis, De la Démocratie en Amérique, 1840; Book II, chapter 29.

European Charter for Regional or Minority Languages , ETS No. 148, Strasbourg 1992

Framework Convention for the Protection of National Minorities, ETS No. 157, Strasbourg 1995

Recommendation R(97)1 on the recognition and quality assessment of private institutions of higher education

Vilnius Declaration: conclusions of the Conference on “NGOs and civil society – the rôle of non-governmental organisations in promoting social cohesion and strengthening civil society in Europe”, November 1995

Article prepared by request for "Higher Education in Europe", the journal of CEPES, Bucharest

1James Wimberley is head of the Technical Assistance and Cooperation Section in the Education Department of the Council of Europe. The views expressed are personal and should not be taken as the official vies of the Council.

2The alleged counterexample of Hong Kong only underlines the point: Hong Kong long enjoyed the rule of law without being itself a democracy, because it was the colony of one; under authoritarian China, the rule of law is rapidly being eroded.

3The state may of course ban criminal gangs and hate groups, but only on the basis of objective proof of harm, not just moral disapproval.

4The distinction has nothing to do with the rigour of the bond, only its nature. The members of the Free Presbyterian Church of Scotland or a non-governing Communist Party are subject to draconian discipline, far stricter than that of most business contracts. But dissenters are expelled, never sued.

5The Jacobin critique is alive and well among American political scientists of the “public choice” school, who see electoral politics largely as rent-seeking by special interests. Their conclusion, though, is the opposite of the Jacobins’: the government should do as little as possible, rather than heavily regulate civil society.

6Having toiled for ten years with tiny resources to build up sound governance, when huge resources were being poured in elsewhere for economic reforms, we have a melancholy satisfaction in reading the World Bank’s new view that governance should have been a higher priority from the start.

7The intense pressure exerted by Christian fundamentalists in many US states to prevent the teaching of evolutionary biology is a valuable caution against romanticising community control of the curriculum.

The general shape of higher education

Educational rights

Internal governance of universities

Private higher education

Conclusion