THE PROBLEM OF SYSTEMATIC MANIPULATION IN AUSTRIAN INSTITUTIONS OF SCIENCE AND LAW

by Josephine Papst

PART I:

AN INVESTIGATION OF THE SOCIAL PHENOMENON OF SYSTEMATIC MANIPULATION AS AN ILLEGAL MEANS OF COERCION, BLACKMAILING, AND FRAUD IN AUSTRIAN INSTITUTIONS OF SCIENCE AND LAW

When I first became concerned with violations of regularities or rules of law by public authorities at the Karl-Franzens-University of Graz in the year 1993 I could not describe them clearly, because I did expect the public authorities who violated rules of law to correct the mistakes. The correction of mistakes is the way we all would expect responsible public authorities to do within a democratic constitution based on regularities and rules of law; we would expect at least each public authority to accept and to respect basic rules of law. However, how should leading members of public institutions become evaluated who do refuse to correct the mistakes and who do commit consciously further violations of rules of law to let the mistakes officially disappear instead of correcting the mistakes according to appropriate, correct, and responsible behaviour within scientific and legal institutions.

It is a historical fact that successful incorrect acting of public authorities needs a particular ideological background, because otherwise incorrect acting could not become successful. Within well-organised democratic societies the consequence of legally incorrect acting cannot be success but is failure: successful acting and legally incorrect acting are mutually exclusive. However, what should the ideological background of public authorities at the alma mater or the scientific institutions within a democratic state at the end of the 20th century be, which leads to incorrect behaviour, violations of rules of law, manipulation, blackmailing, fraud, and so forth, and makes such a behaviour a success? Within a democratic state we would expect public authorities to act according the democratic requirements, and to avoid the violation of basic rules of law and principles of a democracy. Furthermore, we would expect the community around such a kind of public authorities not to accept rude violations of basic rules of law by public authorities. Such that the following two questions arise: Firstly, for what reasons are people at universities and scientific institutions highly willing to accept violations of basic rules of law by public authorities, and secondly, who are the people committed to such a behaviour. Before an investigation of this problem will be continued there is a need for a description of the structure of the irregular or incorrect acting or the violations of rules of law – acting contra legem – by public authorities.

To get a first explanation or idea of the complex problem of consequently violating rules of communication and of law I studied the structure of interaction in Crime-stories and Psycho-thrillers. There are at least two aspects that are important for planned crime: (1) The social community around the victim and the victim that should not realise that he/she will be or is the victim, and (2) the person who commits the crime and who wants to achieve his/her aim by blurring or deleting all paths and by involving the social community around him/her into actions of crime to tighten up their hands.

1. WHAT IS SYSTEMATIC MANIPULATION?

Within political and social theories the phenomenon of systematic manipulation in modern democratic systems has never been investigated.1 The same can be said of ethics that did remain in the field of individual improvement of utility in terms of a maximisation of the fulfilment of individual interests within a particular society. Only in poetry, art, criminal fiction, and criminal theories the phenomenon of systematic manipulation did occur, at least implicitly. In criminal theory the phenomenon of organised crime is regarded as some kind of crime that is not easy to get under legal control, and in poetry George Orwell by his novel “1984” is known for the most famous example of systematic manipulation in a fictional modern societies that move slowly but clearly from a democratic social structure towards an strict oppressive social structure.

Yet, organised crime is structurally different from systematic violation and manipulation of rules of law by leading public authorities within legal public institutions. The former happens within illegal or criminal communities, the latter within legal public institutions. The crucial problem is that particular public and legal institutions do support illegal activities performed by their members. The aim of such a support is to hide the illegal mode of activities from public.

1.1. COERCION

As a starting point for a first characterisation of manipulation there will be investigated coercion based on Robert Nozick’s exploratory study of coercion.2 The notion of coercion is one element of the complex notion of manipulation, and furthermore it is constitutive for systematic manipulation within public institutions of science and law as one kind of coercion.

Nozick investigates the conditions for a person where she/he is coerced not to do a particular action because of being threatened by another person to act in such a way. The aim of Nozick’s approach is to get criteria to distinguish between (1) situations in which somebody was forced or coerced by somebody to act or not to act in a particular way in a legally relevant sense and (2) situations in which it cannot be said that somebody was forced or coerced by somebody to act or not to act in a particular way. Examples of actions in which it could not be said that somebody was coerced to act in a particular way are warnings, offers, or situations where no means of structural or factual power or violence were involved. Here, I quote the two clearest definitions of the conditions of coercion suggested by Nozick: 

“(1) There is a P who coerces Q into doing A
or
(2) Q is justified in believing that there is a P who has threatened to bring about a consequence which significantly worsens his alternative of not doing A (and that P has the appropriate reasons and intentions), and (part of) Q’s reason for doing A is to avoid or lessen the likelihood of this consequence he believes was threatened.”3

In this sense threatening or coercion is described for the individual-or-two-person case where two or only a few persons are involved, and in which a person is said to be threatened or coerced to act in a particular way when it is very likely that the bad or worse consequence will come about. For instance, in the face of a revolver. The individual-or-two-person case counts as crime case that will be investigated and punished by the legal system of the particular state.

Different to the individual-or-two-person case is the structure of a multi-person case. The multi-person case is known as the organised crime case. For instance, in common language one kind of such a crime is called Mafia, but there exist a lot of other types of organised crime cases. Investigations of all of these kinds of multi-person crimes are already topics of criminal and international criminal law.

The structure of multi-person cases within legal public institutions of science and law is less investigated and is still no topic of criminal and international law. At the international level exceptions are some cases in the sphere of politics and economics. At the national level in Austria such cases have never happened – as I know – and within the sphere of sciences such cases are even not allowed to happen, such that it seems to be forbidden to investigate cases of obvious criminal acting by leading public authorities at universities or scientific institutions.4 However, this assumption is the bedrock of systematic threatening and coercion by leading members of public institutions of science and law in Austria. The power of this kind of structural force comes from the systematic connection of the different types of public institutions of administration, science, law, and publishers based on their competence and mutual structure of dependence. Against this background Nozick’s characterisation of coercion can be reformulated for the multi-person case where public authorities as members of legal public institutions are involved.

"(1) There are public authorities – PA – who are members of at least one institution of the different types of co-operating legal public or private institutions – LPI – who coerce Q into doing A
or
(2) Q is justified in believing that there are PA who are members of LPI who have threatened to bring about a consequence which significantly worsens his alternative of not doing A – or doing A – (and that the PA have the appropriate reasons and intentions), and (part of) Q’s reason for doing A is to avoid or lessen the likelihood of this consequence he believes was threatened."

In the multi-person case where public authorities as members of legal public institutions are involved the strong coercive force comes from the systematic co-operation between the different types of public institutions of administration, science, law, and publishers such that each mechanism of public control fails or breaks down.

1.2. “HEROES DO NOT LIVE LONG TIME!”

The slogan of the leading members of legal institutions of administration, science, and law based on a dysfunction structure in the way described above is: Heroes do not live long time. This words express their strong believe in the success of the practise and the application of oppressive means to get a systematic structure of manipulation nobody could successfully leave and in their successfully performed experience in their past. 

2. THE USE OF COERSION, BLACKMAILING, AND FRAUD AS MEANS OF SYSTEMATIC MANIPULATION WITHIN LEGAL PUBLIC INSTITUTIONS OF ADMINISTRATION, SCIENCE AND LAW

2.1. SYSTEMATIC MANIPULAITON AS ONE KIND OFINSTITUTIONAL MALPRACTICE

The nucleus of the problem is whether or not institutional malpractice does necessarily cause damage? Before the question above can be answered, the characterization and a first approach to a clarification of the notion of malpractice is unavoidable. One intuitive characteristic is that the notion of malpractice includes features of different kinds, such as concrete facts with respect to a particular situation or case; the available and accessible justified knowledge, and considerations of ethics. In the case of malpractice there is a rough discordance between these different kinds of features of reality, the representation of reality and ethical considerations, which become relevant within institutional practice. Institutions are constitutive for societies, and they themselves are constituted by a certain set of rules and laws. The latter provide the institutions with the elementary legal structure and directives or regulative rules for the ongoing procedures, such that all the processes that happen within an institution can be performed appropriate to the elementary rules. The aim of these elementary rules is to avoid damage at the different levels in societies: personal and individual damage, the damage of groups, the damage of the institutions itself, the damage of societies, nations and civilization as a whole. Without going into detail with regard to the question “What is the damage in concrete situations?” the notion of malpractice always includes the fact that there happens something within a socially established institution that violates the principle of getting the best or optimal result of a process of actions or chains of actions within that institution. For instance, if the treatment by a physician causes death – because of too high concentration morphine – instead of avoiding more pain, it will be regarded as malpractice. Such problems appear in each institution depending on their aims and demands: in schools, universities, hospitals, in the praxis of physicians, psychologists, psychiatrists, social institutions, art clubs, political and economic institutions, industries, nations, and so forth, not to forget institutions of law itself: the supreme courts and the courts with their judges on the one hand and the lawyers on the other hand.

In this sense malpractice consists in a certain more of less conscious ignorance, and in the absence of the available theoretical and practical standards of knowledge within the specified field a particular institution with its professionals is established for. The consequences of malpractice are false decisions, actions, processes, and chains of actions and processes that cause damage. In short, malpractice is unprofessional behaviour due to a lack of competence with regard to the solution or clarification of a particular problem or misleading ideology in various degrees of a professional process. Malpractice occurs when a professional does not undertake all her/his effort to come up to the optimal solution of a concrete problem according to the available knowledge and ethical standards at a particular time, or with regard to the most elementary requirements of humans from the point of view of humans as a species eternitatis et temporaris. Human rights are an example of the latter, and for the former cases consider for instance the situation where penicillin still was not yet discovered a physician could not be blamed for malpractice because of the death caused by some infection, we would be regarded as harmless nowadays. Or, before copyright was internationally ratified no lawyer could have been blamed for unprofessional behaviour in copyright problems.

Imagine the case that the best lawyer of a country fails to meet the standards, and therefore, the courts and the Supreme Court do the same. If so, we have a concrete case where the intellectual capacity in a particular field in law is exhausted, and from such a bad case it follows that in an intellectually exhausted country a certain law does practically not exist, although there exists theoretically that law. However, it cannot be applied in the concrete situation of violation of that law due to the fact that there is not any competent or ideologically correct expert in that field of law in that country. As a concrete example there can be mentioned Austria with its copyright. The result is a contradiction between the actual existing law and its application in practice, such that it can be said that the particular law does not exist in such a country. And furthermore, that people there do enjoy violating such an ineffective law, and do generally accept such a violation by somebody else to get her/his on social right to violate that law to her/his own benefit. In addition to that such a society declares everybody who suffers form such a damage and expresses her/his complains about it to be criminal in virtue of slander.

2.2. CONCLUCION ON INSTITUTIONAL MALPRACTICE

The conclusion is that the main characteristics of institutional malpractice is more or less conscious ignorance by a professional with respect to the available knowledge at a time, the accessible facts about a case, and the ethical standards at a time that does cause serious damage on persons, families, groups, societies, institutions, on nations and on societies as a whole.

Legal rules are always given specific appropriate interpretations with regard to a particular social system and political system and to common legal practices. A short look to history teaches us that there were political systems that did provide lawyers with arguments to kill persons legally because of their race, their religious commitment or assumed personal damage. Lawyers were said to be nothing else than the means to an end by the political system in power, and that they are not responsible for anything else. What is law good for? And what are lawyers good for in the case that they would do everything for a certain amount of money?

Based on these assumptions there can be distinguished three levels of a law in power. The set of written rules based on the constitution of a nation, the interpretation of these rules with respect to particular contexts, and the unarticulated commonly accepted legal practices.

When malpractice by lawyers is discussed we have to ask at which level it did happen. Was it a violation of the rules itself by manipulation of facts, or was it a violation of the accepted interpretation of law by shifting consciously to another false interpretation, or was it the correct application of the commonly accepted unarticulated legal practices.

Our nations and international relationships are based on a particular constitution and rules of law to guarantee the basic structures of personal, national and international interaction in societies in order to avoid damage. In this sense the requirement for law is first of all to prevent persons and societies from damage. As a mean of prevention of wrongdoing there is punishment. Without an explicit rejection of the theory of revenge of punishment we favour the theory of prevention for the justification of punishment whereby punishment cannot be reduced to the diction of a sentence in jail.

Now the question arises whether or not the sentence to be free from guilt of a guilty person in virtue of some malpractice by a lawyer causes damage. How could the fact that a guilty person is said to be innocent by the court cause damage? The guilty person is no longer guilty by virtue of the decision of the court, and must therefore, be happy, such that there seems to be caused no further damage at all.

The answer to the starting question is: Yes! There is no context in which institutional malpractice does not cause damage.

The crucial characteristics of repressive or oppressive democratic systems are a certain structure of circularity in the violation of basic rules of law, such that systematic manipulation becomes effective.

3. SYSTEMATIC INSTITUTIONAL INCOMPETENCE OF LEADING AND RESPONSIBLE PUBLIC AUTHORITIES IN ADMINISTRATION, SCIENCE, AND LAW AS ONE KIND OF VIOLATION OF CONSTITUTIONAL LAW

Austrian constitutional law is committed to law with respect to all its legal procedures and activities performed by its institutions of administration, science, and law. It is part of the responsibilities of such a legal constitutional system to take care and to guarantee that the system is able to keep its constitutional and legal character. Against this background an extremely high degree of incompetence of the leading authorities such as those of the ministers, the former responsible lawyer, and the Austrian Staatsanwaltschaft counts as anti-constitutional. The legal capacities of the Austrian legal system seem to be exhausted, such that the system contradicts itself and shows its anti-constitutional behaviour.

[1]For example game theory, decision theory, and theories on decision-making under risk are not concerned with the problem of the systematic manipulation as some kind of malpractice in established democratic systems or communities. There is at least one paper written by Nicholas Bamforth that touches the relevant problem. See BAMFORTH, NICHOLAS; The Application of the Human Rights Act 1998 to Public Authorities and Private Bodies, in: Cambridge Law Journal, 58 (1), March 1999, pp. 159-170.

[2]Nozick, Robert; Coercion; in: Morgenbesser, Suppes, White (eds.); Philosophy, Science, and Method, Essays in Honor of Ernest Nagel, New York, St. Martin’s Press, 1969. pp. 440 – 472.

[3]Nozik, Robert;Coercion; p. 444. It should already be clear by the quote that the symbols “P” and “Q” stand for persons, and “A” for a particular action.

[4]Compare for instance the interview with Sigurd Höllinger; HÖLLINGER, Sigurd; Gelegentlich Scharren ... aber keine Skandale sieht Sektionschef Höllinger, Interview mit Sigurd Höllinger in: DER STANDARD am 29. Mai 2000, S.2. Salomon, Martina und Mayr, Peter; Schrott vom Bauplatz Wissenschaft, in DER STANDARD am 29. Mai 2000, S.2.