The maintenance of institutional values

Research library futures
Jim Spigelman

The contribution that is made by the administration of justice to the social and economic welfare of Australia is in large measure based on institutional traditions, such as the independence of the judiciary, the incidents of a fair trial and the principle of open justice. These institutional traditions reflect values of abiding significance. Each generation of judges is a trustee of those traditions. It is for that reason that I have sought over a period of time to both articulate the continued significance of those traditions, and to warn of some of the dangers that arise from other pressures impinging on the administration of justice.1

The pertinence of these issues arises from the fact that the pressures on the Courts reflect pressures to which all areas of public sector activity have been subjected over recent decades, including, I am sure, libraries. I would not presume to lecture an audience such as this on the institutional values and traditions of our great public libraries. Nevertheless, I have found that when addressing contemporary pressures from the perspective of the administration of justice, the experience of other public activities is relevant to the administration of justice, and our own experience is relevant to others.

The Courts are an arm of government. They have not been, and cannot be, insulated from changes in attitude about the proper role of government and the appropriate ways to conduct governmental activities. In the case of libraries, whether the major public library or academic, specialist or local libraries, I assume that the pressures have been and are similar.

The pressures to which I refer include demands for different kinds of, and a greater level of, accountability and transparency in decision making, and the recent pre-eminence of commercial or economic values in public decision making; accompanied by the greater salience of what has been called the three "E's" - economy, efficiency and effectiveness - in competition with other values of government activity, such as accessibility, openness, fairness, impartiality, legitimacy, participation, honesty and rationality. This has often involved an increase in significance of managerial values over what may be called the professional values of an institution's traditions.

There seems to be in some circles a belief that it is always possible, without exception, to achieve more with fewer resources. I have in mind the response of an ardent micro-economic reformer who noticed that a string quartet performs a work by Mozart in exactly the same time in 2002 as it had been performed in 1802. For 200 years there has been no increase in productivity whatsoever. This reformer, sure that he has discovered a great scandal in the form of a collusive arrangement amongst professional musicians, believes the Australian Competition and Consumer Commission should investigate.

Some things take time. Justice is one of them. In some spheres of conduct productivity improvements are not possible without diminution of quality. That does not mean, however, that productivity is not an appropriate focus of attention.

Accountability of course is something that everyone is "for" - like democracy or freedom. As always, it is the detail that matters: accountability to whom and what. A central consideration for all public activities is the fact that they derive funds, in large measure, from taxation. This imposes a duty to account for the efficiency and effectiveness with which such funds are used.

One aspect of the new managerialism in the public sector - sometimes referred to as "the new public management" - is the assumption that better decisions will be made by exposing public sector decision makers to market forces, or by seeking to replicate such forces. Over recent decades the values of commercialism have swept aside many other values and have come to dominate public debate to an unprecedented degree. A physical manifestation of this is in the form of our cities. They were once dominated by public buildings - a parliament, a court, a town hall, a cathedral. Now all such buildings are dwarfed by commercial office blocks. Indeed, public buildings are now often constructed in a form indistinguishable from commercial buildings, of which the "new brutalism" of the Supreme Court building is merely the most egregious example on the Sydney skyline.

There are, in my opinion, dangers in such uniformity. Diversity in the organising principles of our social institutions is as significant for the health of our society as bio-diversity is for our ecology. A monoculture is inherently unstable. In the context of the values of the legal system, truth, justice and fairness are not necessarily compatible with the unbridled operation of market forces. Nevertheless, over recent decades, the balance of influence between the political ideology that emphasises market failure and that which emphasises government failure has, in relevant respects, shifted in favour of the latter. This change has effected all aspects of government including, inevitably, the courts and, I assume, libraries.

I have no doubt that in some areas of government the introduction of a market perspective has proven to be entirely salutary. Such success is not, however, a proper basis for an assumption that this approach can be applied to every area of government activity. There are important differences between different parts of the public sector, and between different functions performed within any particular area of the public sector, with regard to these issues.

In some cases it is entirely inappropriate to reduce citizens to consumers and to treat governmental institutions merely as providers of services. It is not the case that all areas of human life can be characterised as a series of consumer choices. Citizens have rights and duties. Consumers have desires or needs. A person's interest as a "consumer" is only one part of a person's status as a citizen. The consumer analogy has become, in many respects, a feral metaphor that has acquired a disproportionate degree of prominence.

Rabbi Jonathon Sacks, the Chief Rabbi of the British Commonwealth, has argued that the kind of society that gives rise to and is able to sustain a market economy tends to be a society with a strong respect for certain kinds of traditions. Rabbi Sacks expressed concern that traditions were being undermined by the power of the market. He identified the global triumph of a market based approach as perhaps the market economy's own worst enemy. He said:

When everything that matters can be bought and sold, when commitments can be broken because they are no longer to our advantage, when shopping becomes salvation and advertising slogans become our litany, when our work is measured by how much we earn and spend, then the market is destroying the very virtues on which in the long run it depends. That, not the return of socialism, is the danger that advanced economies now face. And in these times, when markets seem to hold out the promise of uninterrupted growth in our satisfaction of desires, the voice of our great religious traditions needs to be heard, warning us of the gods that devour their own children, and of the temples that stand today as relics of civilisations which once seemed invincible ...

The market, in my view, has already gone to far: not indeed as an economic system, but as a cast of thought governing relationships and the image we have of ourselves ... The idea that human happiness can be exhaustively accounted for in terms of things we can buy, exchange and replace is one of the great corrosive acids that eat away the foundations on which society rests; and by the time we have discovered this, it is already too late.

The market does not survive by market forces alone. It depends on respect for institutions, which are themselves expressions of our reverence for the human individual as the image and likeness of God.

In my various addresses on this subject I have sought to emphasise that it is a gross over-simplification to treat the courts as delivering some kind of "service". The courts administer justice in accordance with law. They no more deliver a "service" in the form of judgments and decisions than a parliament delivers a "service" in the form of debates and statutes. I do not doubt that courts serve the people, but they do not provide services to the people.

The enforcement of legal rights and obligations: the articulation and development of the law, the public affirmation of who is right and who is wrong, the denunciation of conduct in both criminal and civil trials, the deterrence of other conduct by a public process with public outcome. These are all public purposes served by the courts, even in the resolution of private disputes.

I do not presume to intrude into consideration of the various functions performed by a library. No doubt there are functions which can be seen to be accurately described in terms of providing a service to a particular person or persons, and others which are more appropriately understood in terms of public purposes. A clear differentiation in this regard may not always be possible. However, it may be important, in the light of current pressures, to attempt some form of differentiation if the full range of values of the institution are to be served.

Efficiency is not the only value in life. Our system of justice is not the most efficient mode of dispute resolution. Nor is democracy the most efficient mode of government. In all these respects we have deliberately chosen inefficient ways of decision making in order to protect rights and freedoms and to ensure that governments act with the consent of the governed. These are values of a sufficiently high order to be protected in constitutional terms. That is not so for other areas of government activity. However, the general principle remains applicable: not everything is capable of being reduced, either directly or by analogy, to some form of market.

One of the most distinctive characteristics of the "new public management" is that it adopts a "one size fits all" approach that assumes that the same procedure is appropriate in every area of the public sector. Generally, there appears to be required a hierarchy of documentation. At the highest level of generality or abstraction is a document described variously as a strategic plan, corporate plan, charter or mission statement. The level below concerns the process of annual implementation, variously called business plans or performance plans and the like. These plans are required to contain goals, objectives, targets or standards at a level of generality that is implementable and, preferably, capable of measurement and stated in quantitative form. Further down the hierarchy is what is frequently called performance indicators, which are required to be measurable, concrete, collectable at reasonable cost and comparable either between institutions or over time for the one institution. Finally, the process must be capable of independent evaluation, both within the unit of public administration and by investigatory and regulatory bodies, such as finance departments, auditors-general and parliamentary committees. Although the nomenclature varies from one country to another, and from one area of public administration to another, the broad lines of these requirements appear to be similar in many countries and spheres of discourse.

At the level of strategic plans, mission statements, charters and the like, one generally finds the broadest of platitudes, unlikely by their nature to have any effect on actual behaviour. No doubt there are some areas of public administration for which clarification of objectives at this level of generality performs some useful function. I do not myself accept the proposition that one cannot plan for the future unless one writes it down. However, in the immortal words of an English footballer: "If you have the courage to look far enough ahead, you too can see the carrot at the end of the tunnel." And so we should.

The position in this regard is not a static one. The enthusiasm for strategic plans or charters or mission statements appears to me to have waned somewhat. The presumed benefits from clarification of objectives do not seem to be attainable when the objectives are stated at a high level of abstraction. It is not sufficiently appreciated that management is, in some respects, a fashion industry.

Although at any point of time the requirements of good management are stated with certitude, those requirements change over time. For example, in the United States with respect to budgeting processes, there has been a succession of passions: in the 1950s there was "performance budgeting"; in the 1960s it became "programme budgeting"; in the 1970s there was "management by objectives"; in the 1980s the current approach with the hierarchy of documentation to which I have referred came to be required by statute. Each of the previous approaches was accepted, on each such succession, to be a failure.

Scarcely a week goes by without some new volume proclaiming the abiding utility for managers of glue factories, of the insights to be found by an obscure author whose work is available, if at all, only in the Penguin Classic series, or of other insights which are to be deduced from some catchy aphorism. Management fads of this character come and go with bewildering rapidity.

Nevertheless one can also identify phases of management belief structures which take root for longer periods with more widespread application. These more permanent models pass through phases of enthusiasm, dissemination, disappointment and decline. One American author has recently identified a range of consecutive management fads which were applied in higher education in the United States over the course of the last two or three decades: the Planning Programming Budgeting System was replaced by Zero-Base Budgeting which was replaced by Management by Objectives - that is to say PBS followed by ZBB followed by MBO. Subsequently, there was an emphasis on strategic planning and benchmarking and then Total Quality Management (TQM) and then Business Process Re-Engineering (BPR). 2

A critical manifestation of all managerial approaches to decision making is the centrality that is attributed to quantification of both inputs and outputs. That is not to say that managers do not understand the concept of quality. They do and regard it as an important consideration. There is, nevertheless, a fear of any subjective dimension when making judgments about quality. So there is a never-ending and, usually unrequited, search for measurement of quality to introduce an objective element into the process. In the case of manufacturing goods, for example, defect rates and customer satisfaction may be an appropriate indicator of quality. This cannot, however, be applied to all areas of governmental activity.

I do not doubt that there are perfectly acceptable and legitimate purposes served by quantitative indicators. In the context of managing the Supreme Court, I refer regularly to many statistics on matters such as case load and delay. However, in some areas of government activity performance indicators have been reduced to funding formulae and, particularly in that form, have come to be applied in a mechanical and rigid way to determine not only budgets but also remuneration and tenure. This has had the most dramatic effects on the operations of the organisation, effects which no-one would have chosen by a more broadly based decision-making process.

The root of the difficulty is one of perception. Quantitative measurement appears to be objective and value free. Qualitative assessment appears to be subjective and value laden. In fact quantitative measures - whether in the form of a funding formula or of a performance indicator - contain and conceal important value judgments. There may indeed by an institutionalised bias against qualitative assessment because of the benefits that arise when decisions become virtually automatic. Where persons, by reason of their institutional position, have ongoing relations with each other, it is easier to say that a decision is determined by a formula. It is harder to make a decision which is based on an express assessment that one person or institution is not as good as another, or not as good as they should be.

There appears to me to be a power struggle between the managers (people like Treasury officials, departmental finance officers and auditors) and the professionals (like teachers, doctors, lawyers and librarians) in this context. Such professionals tend to emphasise the significance of qualitative considerations. Managers tend to emphasise measurable indicators and objective formulae.

It is perfectly understandable why this should be so. To the extent to which qualitative considerations are given weight, the professionals will have the greater say. Unless matters can be reduced to measurable standards and indicators, the managers will not be able to exert significant influence. The managers simply do not have the capacity to make qualitative judgments. As a regrettably anonymous pundit put it: "Where you stand depends on where you sit."

In many areas of public decision making, including the administration of justice, there is simply no escaping qualitative judgments. Not everything that counts can be counted. Many decisions can never be made automatic. Quantitative measurement is, by its very nature, partial and incomplete. Decisions based on measurable factors reflect a very partial rationality. However, measurement by reason of its concreteness, tends to acquire a disproportionate and inappropriate influence over the more amorphorous considerations of quality, with results that are capable of being profoundly irrational.

There is a tendency amongst managers to regard measurement as benign and that no harm can be done from quantification, even if it does not prove to be useful. That is wrong. The process of deciding what and how to measure so-called "performance", is capable of having very real effects on behaviour and to distort actual conduct in a manner that no-one would actually choose. This is a critical manifestation of the irrationality of partial rationality.

Of course such consequences depend upon how performance indicators are used. If they are used for internal management purposes, then it is unlikely that such a consequence will follow. If, however, they are used for external accountability purposes, then the possibility of unintended adverse consequences is higher. If they are used for purposes of allocation of resources and determination of job security and remuneration, then distortions are virtually guaranteed.

Although managers tend to think of themselves as applying a market driven private sector model, there is a different perspective. An emphasis on strategic plans, business plans and performance indicators was the primary characteristic of the long tradition of socialist planning. The one thing of which there was no shortage in the former Soviet Union was performance indicators. They called it a five year plan. The Soviet experience indicates dramatically the distortions that can arise by reason of an emphasis on quantification.

Nikita Kruschev, in one of his speeches attacking what he called "the steel eaters" of heavy industry, revealed that when the five year plan for nail manufacturers identified output in terms of tonnes, every manufacturing plant in the country made large nails and there was a shortage of small nails. Accordingly, in the next five year plan, output was stated in terms of number of nails. The inevitable happened. Everyone made small nails and there was a shortage of large nails.

It is of central importance to recognise that measurement is not neutral in its effects. Measurement has consequences. Indeed it is expected to have consequences. However, what occurs may not be as intended. The more significant the application of quantitative measurement, the more likely it is that it will have unintended consequences. Only some matters are capable of measurement, and what is measurable will receive greater salience than what is not measurable. This may not be of concern. In some areas of government activity what can be measured may include the things that matter most, including aspects of quality. However, to the extent that what matters cannot be measured, then it is necessary to be concerned about the pathology of measurement.

There is a substantial body of literature showing the distortion effects of measurement in both the private and the public sectors. One Harvard Business School Professor calls the process of paying bonuses for performance as "paying people to lie". He concludes:

Tell a manager that he or she will get a bonus when targets are realised then two things are sure to happen. First, managers will attempt to set targets that are easily reachable, and once the targets are set, they will do their best to see that the targets are met even if it damages the company to do so.3

The kinds of difficulties that arise are well stated in assessment of American universities of the emphasis given to publication and the grant of tenure for American academics. It is worth quoting at some length:

As long as the candidate proves an inoffensive teacher and a reasonable department member, only one question sits on the meeting room table: Is the research project finished? If the junior colleague has a book in hand or an acceptance letter from the director of the university press, tenure is a fait accompli. If the work remains in manuscript, promising but incomplete, no promotion. That is the employment equation. Tenure has boiled down to a six-year composition scheme. Junior faculty now face a demystified production schedule, and senior faculty enter the tenure meeting with a one-checkbox form in their heads. No more messy discussions about quality. No more anxiety about whether the department has enough discernment, or too much. Administrators have an objective criterion to point to should any outsiders challenge the proceedings. Judgment has been externalised, handed over to the university editorial board. The assistant professor has inherited a job task that takes priority over teaching students, that is, marketing his revised dissertation to academic press editors.

 

While the book criterion has clarified the tenure process, it has fundamentally altered the nature of scholarship in the humanities. The system discourages research that is time-consuming, that involves tracking down information secreted in libraries and archives, that may yield numerous dead ends before a discovery occurs. Junior faculty must envision book-length projects that can be executed well in advance of the crucial tenure meeting, which takes place in the middle of the candidate's sixth year of employment ... Books that require lengthy inquiries do not get written ... Clear-sighted professors will avoid empirical methods, aware that it takes too much time to verify propositions about culture, to corroborate facts with multiple sources, to consult primary documents, and to compile evidence adequate to inductive conclusions. They will seek out research models whose premises are already in place, not in need of proof, and whose exercise proceeds without too much deliberation over inquiry guidelines. Speculation will prevail over fact-finding, theory and politics over erudition. Inquirers will limit their sources to a handful of primary texts and broach them with a popular academic theory or through a socio-political theme. In sum, facing a process that issues in either lifetime security or joblessness, junior faculty will relax their scruples and select a critical practice that fosters their own professional survival, a practice that offers timely shortcuts to publication and still enjoys institutional sanction.4

The central theme of this article is that these pressures have distorted American intellectual life by creating an environment in which postmodernism in its various simplistic forms can flourish. As can be seen from this experience, the attempt to abolish judgment and replace it by an allegedly "objective" criterion can have significant distorting effects.

Mine is not an argument against measurement. My concern is to prevent measurement becoming determinative in decision making processes where qualitative judgments are essential. Experiences from different areas of the public sector can be of significance to such application of the management techniques to new areas.

I note that the International Standard Organisation has adopted ISO-11620 on the subject of "Information and Documentation - Library Performance Indicators". No doubt reflecting a broader debate in your community, ISO-11620 adopts a long list of indicators including: user satisfaction, cost per user, cost per library visit, library visits per capita, titles availability, required titles availability, percentage of required titles in the collection, medium time of document retrieval from either closed stacks or open access areas, collection turnover, loans per capita, costs per loan, speed of inter-library lending, title catalogue search success rate, medium time of document acquisition or processing, etc. Many of these measurable standards are of significance, particularly for management decision making. In respects such as these, changes within the one institution over time can be of significance. Similarly, with respect to comparing the performance of different administrative units performing the same functions within the one organisation, for example, different branches of the same library.

Difficulties begin to emerge very quickly once one steps beyond such use. One does not even need to go to the stage of performance linked funding or remuneration. Even at the level of benchmarking by invidious comparison between institutions, significant distortions can arise.

In the context of courts there is a single annual publication which purports to compare different courts in the States and Territories and the Commonwealth Courts, with respect to matters such as delay. Such performance tables have become a frequent occurrence in many areas of activity over recent years. The media love their essential simplicities.

In the case of the courts in the federal structure of Australia, this comparison is almost completely valueless. It is simply not the case that courts which have the same name in the respective States and Territories - say, the supreme court - do the same kinds of things. They do not. There is a reasonable level of comparability between the Supreme Courts of New South Wales and of Victoria; however, the Supreme Court in every other State or Territory has a completely different caseload in terms of the balance between matters that are capable of quick disposition and those which are not. The annual table which is published is almost completely valueless.

I note that ISO-11620 identifies that one purpose of the performance indicator data is "to encourage meaningful and useful comparisons across different libraries". The experience of the courts is that qualificatory adjectives such as "meaningful and useful" are more often than not lost, particularly in media reporting.

In all of these areas there are difficulties of knowing what the data really means. I don't know whether a higher cost per visitor to a library is a good thing or a bad thing. It may be an indication of a higher level of service or it may be an indication of inefficiency. Similarly, is a higher percentage of required titles in the collection better than a lower percentage? It may indicate a more accurate matching of acquisitions to demand. It may also indicate a downgrading of the archival function of a library. No doubt it depends on the library and its particular role in the community. These sorts of questions also highlight the dangers of comparison which are much too glibly made, not only in the tabloid media, but by Treasury officials and head-hunters.

The fear is that the pressure of managerial values will degrade the significance of professional values with an end result that is the opposite of that intended, even by the managers. The intrusion of managerialist requirements may progressively undermine the ethos of public service which is of abiding significance in all public sector institutions, particularly those with a strong professional tradition. All such institutions must adapt to the limited resources made available for purposes of the respective functions. In doing so we all have to be conscious that there is such a thing as productivity in the performance of public functions. An institution's values and traditions will be best served by maximising such productivity. The issue is how you achieve that objective.

Significant rewards arise from the sense of public service and that still motivates the best of the professionals in the public sector. It is for that reason that such occupations were seen as a particularly fulfilling way of earning a living and, at least until recent years, were afforded a higher status by reason of that fact. In many spheres of governmental activity the paraphernalia of strategic plans to performance indicators will generate a large volume of documentation, the significance of which never rises above the decorative. It may very well still prove to be the case that the sense of public service and professional responsibility is the primary means of ensuring performance. The danger is that the intrusion of managers and market values will be such as to undermine the sense of public service and of professional responsibility, with results diametrically opposed to those intended to arise from the implementation of the managerial techniques. Unfortunately, by the time we realise that, it may well be too late.


The Honourable James Spigelman, AC, is the 16th Chief Justice of New South Wales, appointed on 19 May 1998. He is also a former senior adviser and principal private secretary to Gough Whitlam, (Prime Minister of Australia, 1972-75); a former Secretary for the Department of Media (1975-1976); and a former member of the Australian Law Reform Commission (1976-1979); Chairman of the Australian Film Finance Corporation Board (1990-1992); Deputy Chairman of the Art Gallery of New South Wales (1983-1988); and President of the Museum of Applied Arts and Sciences (1995-1998). This is the text of his speech to the Colloquium on Research Library Futures: Strategies for Action at the State Library of New South Wales in Sydney on 17 May 2002. For more of the Chief Justice's speeches on 'new managerialism', see the Supreme Court website (particularly recommended is "Quality in an Age of Measurement: The Limitations of Performance Indicators", a speech to the Benevolent Society in Sydney of 28 November 2001). Image courtesy the Supreme Court.


Notes

1. "The Qualitative Dimension of Judicial Administration" The Judicial Review No. 4, 1999, p. 179; "Seen to be Done: The Principle of Open Justice", Australian Law Journal No. 74, 20000, p. 290, 378; "Economic Rationalism and the Law" University of New South Wales Law Journal No. 24, 2001, p 200; "Citizens Consumers and Courts", Australian Journal of Public Administration, No 60, 2001 p. 5; "Judicial Accountability and Performance Indicators", Civil Justice Quarterly, 2002, p. 18; "The 'New Public Management' and the Courts", Australian Law Journal No. 75, 2001 p. 748; "Quality in an Age of Measurement" Quadrant (March 2002), p. 9.

2. See Robert Birnbaum, Management Fads in Higher Education: Where they come from, What they do, Why they fail, Jossey-Bass, San Francisco, 2000.

3. Michael C Jensen "Paying People to Lie: The Truth about Budgeting Process", Harvard Business School Working Paper No. 10-072 April 2001 (accessible at www.papers.ssrn.com).

4. Mark Bauerlein "Social Constructionism: philosophy for the Academic Workplace (2001) LXVIII(2) Partisan Review (www.bu.edu/partisanreview/).

Suggested citation
Spigelman, Jim, 'The maintenance of institutional values', Evatt Journal, Vol. 2, No. 4, June 2002.<https://evatt.org.au/papers/maintenance-institutional-values.html>