Education policy in the field of legal studies: the constraints of development of capable of policy design

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National Research University

Higher School of Economics

Department of public policy

Master Thesis

Education policy in the field of legal studies: the constraints of development of capable of policy design

Student:

Anna Semenova

Scientific supervisor:

Prof. Dmitry Zaytsev

Moscow

2016

Table of Contents

Introduction

Chapter 1: Theoretical Framework of Design and Non-Design Processes in Policy Formulation Spaces

1.1 Public Policy, Policy Design and Non-Design

1.2 Policy Formulation Spaces and Spectrum of Design and Non-Design Activities

Chapter 2: Russian Legal Education Gaps

2.1 Global Trends of Legal Profession

2.2 Comparison of Russian and European Legal Education

Chapter 3: Legal Education Policy Constraints in Russia

3.1 Soviet Union Legacy

3.2 Constraints of Russian Education Policy in Legal Studies in 90-es

3.3 Constraints of Russian Education Policy in Legal Studies in 2000-es

Conclusions

Bibliography

Introduction

Policy design is full of ambiguity and complexity. Davis Bobrow (2006) defines policy design as «ubiquitous, necessary and difficult», however, it is surprisingly little studied and understood in the contemporary policy literature. Nevertheless, policy design studies has already developed and posed important questions for policy studies as it has practical applicability and importance. Thus, policy design is an activity conducted by a number of policy actors in the hope of improving policy-making and policy outcomes through the accurate anticipation of the consequences of government actions and the articulation of specific courses of action to be followed. (Howlett, 2011a).

Policy design is a field of study within public policy with a curious intellectual history. It generated a large literature in the 1980s and 1990s oriented to understanding design with prominent figures in the US, Canada, Europe and Australia such as Lester Salamon, Patricia Ingraham, Malcolm Goggin, John Dryzek, Hans Bressers, Helen Ingram and Anne Schneider, G.B. Doern, Stephen Linder and B. Guy Peters, Renate Mayntz, Christopher Hood, Eugene Bardach, Evert Vedung, Peter May, Frans van Nispen and Michael Trebilock writing extensively on policy formulation, policy instrument choice and the idea of designing policy outcomes (Howlett, 2011a; Capano & Howlett, 2015) ).

Michael Howlett as one of the contemporary scholars in the field of policy design studies performed an extensive literature review on the topic in his recent works (Howlett, Ramesh & Chandarkar, 2015; Howlett & Mukherjee, 2014). Thus, using his materials, we can observe what has already happened and what is happening in the design studies. The early policy design researches began already in the middle of twenty century in frameworks of political sciences and, mainly, they were focused on the policy tools, policy implementation issues and processes. (Dahl & Lindblom, 1953; Kirschen et al., 1964; Tinbergen, 1952).

In the middle of 1970-es, some studies pointed out that the historical and institutional context of policy-making is essentially important for policy formulation (Howlett & Mukherjee, 2014). Therefore, the inevitable presence of contextual orientation lead some scholars to the idea that policy decisions by nature are full of uncertainties and could not be fully deliberated and thus, policy can not be designed (Cohen, March, & Olsen, 1979; Dryzek, 1983; Kingdon, 1984; Lindblom, 1959). political legal education

Very important step was made in 1980-es and 1990-es by two authors Linder and Peters, when they made a distinction between policy designing and policy design itself. Policy designing is a type of formulation that is abstract and policy design is more about policy content. From that time, scholars started to research the role of policy tools and instruments in theory and practice (Howlett & Mukherjee, 2014). Thus, new tool-oriented literature merged with policy design-oriented literature and policy design literature got its independent place.

Mostly, all this bulk of literature continued to examine design as policy content, but not a process of formulation. Thus, nowadays the policy design studies moved from the policy tools, policy implementation issues to the questions of policy development and formulation (Hood, 1986; Hood & Margetts, 2007). Moreover, Junginger (2013) stated that many peculiarities of design work have not been researched extensively such as policy formulation activities that lead to the distinction of policy design and non-design.

Research problem

Non-design situations are studied in the political science, but are not fully researched in the field of policy studies, especially in empirical way. In this connection, Howlett with other authors created a typology of policy formulation spaces, that distinguish design and non-design processes (Howlett & Mukherjee, 2014); (Howlett, Ramesh & Chandarkar, 2015). Thus, our research addresses non-design situations at the example of legal education policy in Russia draw upon the typology of policy formulation spaces.

Therefore, the policy design oriented studies made researches of the formulation of complex policy mixes in fields such as energy and environmental policy, but not enough researches was made in the field of education (Howlett & Mukherjee, 2014). In addition, the policy in the field of legal education was not examined from the policy design perspective,we can say that the legal education and legal education policy is studied extensively from the point of view of reformation and change under the globalization.Therefore, the world has changed as the global economy became more integrated, national boundaries became increasingly irrelevant to business transactions and modern communication became instantaneous and worldwide. Global problems demand global regulation, and the law has had to adapt to these realities. Thus, it is important to know how to qualify lawyers that will be able to work at a new global market. High qualified lawyers that would be able to perform against the background of changing world by globalization phenomena, are needed very much. In this connection, for Russian government, it is important to pay special attention at the education policy in the legal field, which is irrational and non-deliberative. The already made improvements in legal education are not integrated and have chaotic nature, thus Russian education policy in legal field is not in capable policy design space.

Research question: Why Russian education policy in the legal field is designed poorly?

Goal: to determine the constraints for development of policy capable design in Russian education policy in the field of legal studies;

Tasks:

· To describe theoretical framework of design and non-design processes in policy formulation spaces;

· To describe gaps of Russian legal education in comparison with European legal education;

· To identify constraints of Russian education policy in legal studies that preclude development of policy capable design;

Methods:

· Historical comparative analysis;

· Qualitative content analyze.

Scientific novelty of this research lies in the attempt to study undereseached policy formulation space, which is poor policy design space and determine constraints that precludes to move towards capable design space. The theory is studied at the example of Russian education policy in the field of legal studies, which has a lot of interesting peculiarities that has to be examined.

Chapter 1 Theoretical framework of design and non-design processes in policy formulation spaces

1.1 Public policy, policy design and non-design

Public policies are the essential elements for the democratic society, as they serve as guidance for governments and accountability links for citizens. Thus, it is important to introduce various approaches to the concept public policy.

One of earliest definitions is given by one of the pioneers in public administration, Woodrow Wilson. He states: «Public policy is the laws and regulations which are made by legislative statesmen and implemented by public administration personnel» (Wilson, 1942). However, this definition could be criticized from two points of view. Firstly, public policy includes not only laws and regulations, but also different plans, projects, instructions. Secondly, the centre of public policy could be not just state, but others non-governmental units.Another approach to the notion of public policy could be found in the work of Harold Lasswell and Abraham Kaplan (1950), where they say that public policy is «a projected program of goals, values, and practices». This definition is disputable, because a program could be a public policy, but not all programs are public policy.Moreover, Thomas R. Dye (1972) determines «public policy is anything government chooses to do or not to do». The author takes into consideration not only, actions of governments, but also non-actions that could be important in terms of non interference or non interaction in some cases. We can say, that is definition is quite broad.One more definition is coming from Anderson (2006), which says that public policy is «a relative stable purposive course of action followed by an actor or set of actors in dealing with a problem or a matter of concern». Thus, when there is one problem or more and the government makes some decisions, elaborates some strategies and plans for further implementation, it could be called public policy.

Governments have different reasons for their activities such as «patronage, political competition, reflex, and tradition» (Pal, 2010). However, speaking about the policy, they suppose to take into consideration the nature of problem they tackle and the external circumstances they face. Moreover, as we already, could note, policies rarely deals single problems, usually they solve a cluster of complicated problems and issues. Thus, what is needed from governments, it is not just decision-making, but rather an intelligent decision-making that demands to tackle several issues at once by operating within a particular framework. Such framework could be a policy design that therefore becomes a process of balancing different aspects of a cluster of problems in more intelligent and deliberative manner. (Pal, 2010).From the point of view of policy design, «public policies are the result of efforts made by governments to alter aspects of their own or social behavior in order to carry out some end or purpose and are comprised of (typically complex) arrangements of policy goals and means» Нowlett (2014). Thus, these arrangements of policy goals and means can be systemized in special way, that could be called a policy design.Policy design theory has its roots in the political science. Moreover, policy design has relation to the rational tradition of policy studies, which has goal to improve policy outcome by using the specific knowledge. (Howlett & Rayner, 2013). Policy design studies emerged in 50-es of twenty century, since that time, it went through the stages of reformation. In the beginning, policy design was not an independent field of studies: the design oriented researches together with tool oriented studies were performed within the frameworks of political science. Before the twenty first century, there existed so called old policy designs studies and, mainly, they was oriented toward the policy tools, policy implementation issues and processes. (Dahl & Lindblom, 1953; Kirschen et al., 1964; Tinbergen, 1952).In 1990-es and early 2000-es, policy design studies lost their actuality, because such forces as globalization and networking come to the forefront. The spread of this new phenomena lead to the idea that the state governments lost their central role of in decision-making. In addition, it was hard to keep the positions of design studies, as new non-governmental actors (civil society organizations, think tanks and etc.) started to act actively. However, Howlett (2014) and others write that central governments did not lose their positions for policy design in all sectors, as the field of social policy (health policy, education policy, social protection policy and etc.) remained under protection and regulation of the state. Moreover, the designing of such policy influences, primarily, social welfare of any country. (Howlett, Ramesh & Chandarkar, 2015; Howlett & Mukherjee, 2014).In addition, there were critics that argued that there is no sense in studying policy design, because, when we look at the policy in practice, no one of them is really designed. Therefore, we have to pay special attention at the notion of policy design itself. The notion of policy design could be understood from two points of view. On the one hand, we can speak about the policy design as a noun; on the other hand, we can speak about it as a verb. In the first case, policy design is plan of actions for public policy, in the second case it is a process of policy planning and implementation (Howlett & Rayner, 2013; Нowlett, 2014). Giving examples from the other field, we can say that policy design could be understood as the law or legal act, that exist only on the paper and could be distinguished from policy design as the abstract process of law making or different stages for creation of law.

Speaking about policy design as a noun, we can say, that policy design it is a set of policy alternatives or, in the other words, set of different policy mixes. Here, we should explain what policy mix is (see Table 1).

Table 1 Components of a policy mix. (Howlett & Rayner, 2013)

The alternatives of policies consists from the different set of combinations of the elements that are situated in the table, there are policy goals, objectives and aims, as well as policy means, tools and their calibrations or settings (Howlett and Cashore 2009). Such policy mix should help to understand the connection of goals and means and help to make them not to work at cross-purposes. Moreover, Linder and Peters (1988) noted, that among all these policy elements policy means or tools are the most significant, because they comprise the contents of the toolbox from which governments must choose in building or creating public policies (Howlett, 2014).

Thus, in design orientation, policy designs are understood as «ideal types» or «… ideal configurations of sets of policy elements which can reasonably be expected, if adapted to meet the parameters of a specific contextual setting, to deliver a specific outcome». (Нowlett, 2014)

In our research, we understand under the policy design the abstract concept or the process of policy formulation. As Gilabert, Lawford-Smith (2012) and Majone (1975) understands, policy design involves «…the deliberate and conscious attempt to define policy goals and connect them in an instrumental fashion to tools expected to realize those objectives» or from Bobrow, Dryzek (1987), Montpetit (2003), Weaver's (2009;2010) point of view, it «is a specific form of policy formulation based on the gathering of knowledge about the effects of policy tool use on policy targets and the application of that knowledge to development and implementation of policies aimed at the attainment of specifically desired public policy outcomes and ambitions. (Howlett, Ramesh & Chandarkar, 2015; Howlett & Mukherjee, 2014). Thus, we see that policy design is connected as with policy instruments as with policy implementation and the impact of policy ideas on policy formulation (Howlett & Mukherjee, 2014).Linder and Peters (1991) perceived design as a spatial activity that is «a systematic activity composed of a series of choices. To clarify that approach, each choice will be simplified and represented by an illustrative, spatial heuristic. Design solutions, then, will correspond to a set of possible locations in a design space. This construction emphasizes not only the potential for generating new mixtures of conventional solutions, but also the importance of giving careful attention to tradeoffs among design criteria when considering instrument choices».Thus, we understand that policy design supposes to define problem of several of them, to set particular goals and objectives, to choose the appropriate tools, to create alternative ways for tackling problems and make ax-ante assessment of policy outcomes. Originally, policy design process starts with the analysis of variations of possible instruments and their effects on the policy outcome. Moreover, it examines the recourses, which are needed for the usage of instruments in the appropriate ways and tries to understand how instruments makes influence on target groups of people and how instruments correspond with the goals of the government. Thus, the people that are going to make the instrument analysis should have well-developed analytical skills for the work with the instrumental knowledge, that includes the knowledge of constraints of tools usage. (Howlett & Mukherjee, 2014) Important to note that policy design as a process has two components: substantive and procedural ones. Substantive or we can say material component, concerns substance or content of design. It is «a set of alternative arrangements thought potentially capable of resolving or addressing some aspect of a policy problem, one or more of which is ultimately put into practice». Procedural component concerns the procedure of policy design, it is «a set of activities related to securing some level of agreement among those charged with formulating, deciding upon, and administering that alternative vis-а-vis other alternatives» (Howlett, 2011b). Because of such structure, we can suppose that policy design goes ever beyond the policy formulation, decision-making and policy implementation. In addition, it includes actors, ideas and interests active at each stage of the policy process (Howlett, Ramesh & Chandarkar, 2015).Moreover, policy design as a process includes in itself two sets of activities, which are designing policy and designing the policy process, both of them are comprised of similar and related, but different activities. We give the example, of social policy design from the work of Howlett, Ramesh and Chandarkar (2015).

Table 2 Designing social policy and designing the policy process. (Howlett, Ramesh & Chandarkar, 2015)

Policy design studies acknowledge that there exists not only design activities that are information and knowledge-based, but also the other type of policy formulation and decision-making processes that are lead by the subjective political and personal profits. In such cases, the political bargaining, opportunism, ideological guidelines or corruption play significant role in formulation policies. This kind of contexts shapes the policy non-design.Obviously, it means that not all policies are rational and based on the analyses, logic and knowledge, some of there are still irrational and bad articulated because of particular constraints. We also can say, that it occurs when policymakers are unwilling or unable to understand the nature of a problem and to specify the root causes of the problem they seek to effect.Thus, design studies raise the question how to distinguish between design and other formulation and decision-making processes. The main distinction is, that in terms of policy design, policy makers are expected as to act according to analyses, logic and knowledge rather than, for example, purely political preferences (Howlett, Ramesh & Chandarkar, 2015).

1.2 Policy formulation spaces and spectrum of design and non-design activities

The process of policy-making is seen as a process of interaction among policy-makers during the exercise of their legitimate or illegitimate power (Howlett & Mukherjee, 2014). The analysis of such interaction can help us to understand the parameters that leads to the composition of the Howlett's table devoted to the types of policy formulation spaces (see Table 3) (Howlett, Ramesh & Chandarkar, 2015). Thus, the attempts of policy-makers interrelation could have different nature. In the first case, they could be chaotic and inconsistent and would not lead to the well-weighted and instrumental design activity. It would be rather aimed at the satisfaction of political and personal gain. In the second case, the interaction of policy-makers could be rational and deliberative and could result in deliberative design activity. The last process is called instrumental policy making, it is «… a specific kind of policy activity which occurred in specific circumstances in which knowledge of the general impact of specific policy tools was combined with the practical capacity of governments to identify and implement suitable technical means in the effort to achieve a specific policy aim»( Howlett & Mukherjee, 2014). As the authors state, instrumental policy making implicates the setting of policy goals, the searching of appropriate policy tools and means that should matched with already existed goals in particular favorable circumstances. Usually, to set goals is quite difficult as they are extensive or wide-ranging, moreover the process complicates by the difficulty in defining and diagnosing them. In addition, the instrumental policy making and successful realization of policy goals depends on the externalities.Thus, we can say design activity is strongly connected with the context. The scholars distinguish two aspects of the context: «spatial» and «temporal» (Howlett & Mukherjee, 2014). Favorable design circumstances implicates the presence of high quality information and knowledge about the impact of policy alternatives, also the high level of technical capacity is demanded for better knowledge mobilization in formulation processes. Moreover, well-developed technical capacity allows matching policy instruments with policy goals. Moving to the temporal aspect of context, we should say that there are two types of temporal contextual constraints. First are policy legacies and second are prior commitments from the side of policy makers in consideration of alternatives.If the favorable conditions for the design activity are present, thus purposive design activity is possible. If the external conditions are not favorable, than only poor design activities are possible to occur because of incomplete knowledge, even despite the instrumental intentions from government.The table 3 (Howlett, Ramesh & Chandarkar, 2015) shows both situations described above. We can observe how the level of design intentions and capacity to carry them out create four types of policy formulation spaces that lead to deferent policy and political design and non-design processes. From this table, we understand that policy and political formulation spaces could be capable or poor, it depends on the government's intentions and ability to undertake purposive instrumental policy design or the context of policy-making. Therefore, there are two poles, which are capable policy design space, that is driven by instrumental logic and poor political non-design space that is driven by irrational motivation. In between them, we can find other spaces: poor design and capable non-design, both of them are not enough studied and need further examination in policy science.

Table 3 Types of policy formulation spaces: Situating design and non-design processes and outcomes. (Howlett, Ramesh & Chandarkar, 2015)

Moreover, from the table, we see that capacity remains a key factor for the success. Even if intentions are not enough instrumental, capable non-design is possible. Thus, for the moving to more favorable policy formulation spaces from the poor political non-design space, the improvements are needed. Howlett suggests that, firstly, the improvements should be done in terms of policy capacity. Policy capacity is defined here as a set of skills, competences, resources, and institutional arrangements and capabilities with which key tasks and functions in policy process are structured, staffed and supported. (Howlett, Ramesh & Chandarkar, 2015; Wu, Ramesh, & Howlett, 2015). The authors suggests that different kinds of competences or skills could be divided into three types: analytical, operational and political. The availability of such competences is crucial for policy making, however, they rely on availability of adequate capabilities or resources. Thus, each of these three competences involves capabilities at three different levels--individual, organizational, and systemic. Together they generate nine policy relevant components of policy capacity. For example, at the individual level could be considered the following policy professionals: policy-makers, public managers, and policy analysts. All of them play a crucial role in determining how well different tasks and objectives in policy process are conducted, and their policy capacity is determined by their knowledge about policy processes, skills in policy analysis and evaluation, managerial expertise, and political judgment. However, only high evaluation of individual level does not lead to successful policy capacity, recourses and capacities at the organizational and systemic level are also important for policy capacity. At the organizational level, the availability and effectiveness of information infrastructure, human and financial resource management systems, and political support are important for high evaluation.Analytical-level capacities help to ensure policy actions are technically sound in the sense they can contribute to attainment of policy goals if carried out. Operational-level [organizational level ]capacity allows the alignment of resources with policy actions so that they can be implemented in practice. And political-level capacity helps to obtain and sustain political support for policy actions. (Wu, Ramesh, & Howlett, 2015).

Table 4 A Matrix Model of Policy Capacity (Howlett, Ramesh & Chandarkar, 2015)

Secondly, Howlett and other writes about such favorable form of governance as decentralization that could allow better interaction different level of governance. Thus, the interaction about policy formulation would be better, if there were created closer operational links between national and sub-national or regional and sub-regional actors.Thirdly, the improvement is needed in the knowledge aspect. It is two- pronged - crowdsourcing of inputs and the use of evidence. The input comes from three sides, not only from experts but also from governments and citizens. In addition, the use of sound evidence is very important for good policy formulation. Moreover, corruption, clientism and log-rolling are the disadvantages for design activity.Fourthly, one more key factor for design activity is the extent to which an existing policy regime is settled in place (Howlett & Mukherjee, 2014). In the other words, we are speaking about policy legacies. Usually, in policy studies, design activity is studied as ideal types that do not have any historical background (Howlett & Mukherjee, 2014; Нowlett, 2014). However, in practice, such cases are rare and usually they are possible only, when we are talking about the field that was not regulated before. For example, the United States (US) Clean Air Act (CAA) (first enacted in 1970) was the first major federal air pollution legislation in the US that established the very first national benchmark for ambient sulfur diox-ide (SO2) (Howlett & Mukherjee, 2014).As we have already said, such examples are possible to meet in reality very rare, usually policy initiatives are limited by historical legacies. Thus, instead of packaging, which is pure design, the policy makers have to implement the other types of policy activities. However, there is a big disadvantage or constrain as already existed policy components could create a conflict with new elements of policy mix. In the figure 1 and 2, (Howlett & Mukherjee, 2014) we can see a spectrum of different design processes, they move from the highly intentional and instrumental processes to more partial and less intentional. After the packaging, we can name a replacement that means the replacement of the existing arrangements at creation of completely new policy mix. We can say it is the most favorable way to create instrumental policy design against the background of historical legacies.

Figure 1 A spectrum of design processes.

Figure 2 A spectrum of design and non-design processes.

Than, we move to the patching, that could be smart. This design process, is used when new policy mix is not created, but rather the gaps and weak places are found and attempted to be illuminating in already existing policy mix. We can compare patching of policy mix with the repair of computer, when person instead of throwing away of an old computer and buying new one, tries to repair weak places and makes the system work. Patching can be done well if governments possess the capacity to do so but can also be done poorly if they do not. An example of poor patching is policy stretching (Feindt & Flynn, 2009). Under the stretching is understood the process, when already long existing elements of the policy mix are simply extended to cover areas they were not intended in the beginning. It is a quite problematic process, because of a long time period, there could be situations, when the elements of policy mix can fail to be mutually supportive. Drift occurs when, all elements of policy mix are deliberated and maintained, but the policy environment changes. Thus, the impact of policy mix will change as the result policy designer wanted to achieve. Then, goes layering, that is a process whereby new elements are simply added to an existing regime without abandoning previous ones, typically leading to both incoherence amongst the goals and inconsistency with respect to the instruments and settings used (Howlett & Rayner, 2013). Tense layering (Kay, 2007) is a process that includes repeated bouts of layering lead to incoherence amongst goals and inconsistency with respect to the instruments and settings used in a policy area (Howlett & Mukherjee, 2014).Moreover, non-design process also could be studied from the point of view of the spectrum. The non-design process has a special contest, which implicates non-instrumental bargaining, corruption or clientism, log-rolling or purely electoral calculations. In such context, the meeting of policy goals is not primarily concern. The spectrum of non-design processes goes from those types of non-design work that could be at least partially compatible with some aspects of instrumental activity, to those that are purely electoral opportunism or corruption and that are driven by self-interest and are not compatible with policy instruments (Howlett & Mukherjee, 2014).

Conclusions

To sum up, this chapter helped us to understand the theoretical framework, especially the connection of public policy with policy design studies and such processes as policy design and non-design. Moreover, we examine the table that includes the types of policy formulation spaces (Howlett, Ramesh & Chandarkar, 2015). We study the parameters that influence the occurrence of different policy formulation spaces, they are « the government formulation intentions» and « the level of government knowledge and other constraints». Therefore, we have to identify constraints that influence both of these parameters and the policy formulation spaces and precludes to be in the capable policy design space. «government formulation intentions» can include the following constraints: