Compel them to come in

The Christian religion became political when Constantine decriminalized Christianity (313) and Theodorus later made it the state religion (380). At that point, the ad hoc development of beliefs and founding texts became a matter of official business–the norming myths required administration, and thus, the “catholic” approach developed. Its first order of business was sorting out “true” Christian beliefs from all the rest–what came to be known as the “heresies.” By 385, the government was handing out death sentences to folks who refused to accept the state-approved version of Christianity. Fun stuff in the battle for souls and more importantly, for proper, authority-respecting citizens. As with other important norming behaviors, such as the 15-year run of Wikipedia, most of the Christian norming got done early on. The canonical texts of the Bible, by the year 400, for instance.

The problem of heresies persisted, however. Augustine of Hippo was one of the leading intellectuals of the newly politicized church. His book On Christian Doctrine concerns how to interpret sacred texts in order to reach the understandings that were being put forward as “true.” Augustine argued that a text might have four levels of meaning–the literal (what the words say), the allegorical (the “New Testament” meaning), the tropological (the meaning in the context of moral truth), and the anagogical (the relationship to world history viewed as time before Christ and time after Christ and the end of the secular world as we know it). Creating levels of meaning helped Augustine deal with questions from outer suburbia, such as if there’s human sacrifice in the Bible (for instance, Abraham and Isaac (nearly), and the sad story of Jephthath and his daughter, Judges 11.30-39), why isn’t it still okay now? Well, there are “levels” of interpretation and some things are not meant to be taken “literally”–but others apparently are (for instance, the six days of creation; Moses makes the sun stand still so Israelites can finish their slaughter of Amorites; Hezekiah sees the sun move backwards, etc). The point is that after the norming myths have been officially created, the interpretation of the world is a matter of mapping observation (and evidence, and whatever a text says) into the official norms rather than in challenging those norms with anything new (innovation–introduced change to an established order, to established norming myths) or outlandish or just plain wrong.

In this context, Augustine works through the problem of what to do with non-believers, the folks who just won’t accept the official norms of the Church (and the government), and therefore create disunity, might lead others into error, are in danger of losing their souls and suffering eternal punishment, and generally thumb their noses at authority. As Augustine tells it, he starts with the idea of using words and reason to persuade people to convert to Christianity, or from their version of Christian belief to the “true” beliefs as established by the various councils and authorities and Fathers who had the opportunity to be first. Their ad hocking became everyone else’s spiritual truths. But Augustine comes around to a different point of view, one summed up by “compel them to come in.” Here he is writing to Vincent of Lerins, a church official who would eventually become a saint (as would Augustine), about how things went in dealing with the heretical Donatists, who believed (among other things) that some people were not eligible to perform church sacraments because of past sinful behavior. It’s a bit long, but it’s worth working through Augustine’s arguments, as these have become themselves something of a norming myth. I have broken the text into shorter sections and added some emphasis:

17. I have therefore yielded to the evidence afforded by these instances which my colleagues have laid before me. For originally my opinion was, that no one should be coerced into the unity of Christ, that we must act only by words, fight only by arguments, and prevail by force of reason, lest we should have those whom we knew as avowed heretics feigning themselves to be Catholics.

But this opinion of mine was overcome not by the words of those who controverted it, but by the conclusive instances to which they could point. For, in the first place, there was set over against my opinion my own town, which, although it was once wholly on the side of Donatus, was brought over to the Catholic unity by fear of the imperial edicts, but which we now see filled with such detestation of your ruinous perversity, that it would scarcely be believed that it had ever been involved in your error. There were so many others which were mentioned to me by name, that, from facts themselves, I was made to own that to this matter the word of Scripture might be understood as applying: “Give opportunity to a wise man, and he will be yet wiser.”

For how many were already, as we assuredly know, willing to be Catholics, being moved by the indisputable plainness of truth, but daily putting off their avowal of this through fear of offending their own party! How many were bound, not by truth—for you never pretended to that as yours—but by the heavy chains of inveterate custom, so that in them was fulfilled the divine saying: “A servant (who is hardened) will not be corrected by words; for though he understand, he will not answer”!

How many supposed the sect of Donatus to be the true Church, merely because ease had made them too listless, or conceited, or sluggish, to take pains to examine Catholic truth! How many would have entered earlier had not the calumnies of slanderers, who declared that we offered something else than we do upon the altar of God, shut them out! How many, believing that it mattered not to which party a Christian might belong, remained in the schism of Donatus only because they had been born in it, and no one was compelling them to forsake it and pass over into the Catholic Church!

18. To all these classes of persons the dread of those laws in the promulgation of which kings serve the Lord in fear has been so useful, that now some say we were willing for this some time ago; but thanks be to God, who has given us occasion for doing it at once, and has cut off the hesitancy of procrastination!

Others say: We already knew this to be true, but we were held prisoners by the force of old custom: thanks be to the Lord, who has broken these bonds asunder, and has brought us into the bond of peace!

Others say: We knew not that the truth was here, and we had no wish to learn it; but fear made us become earnest to examine it when we became alarmed, lest, without any gain in things eternal, we should be smitten with loss in temporal things: thanks be to the Lord, who has by the stimulus of fear startled us from our negligence, that now being disquieted we might inquire into those things which, when at ease, we did not care to know!

Others say: We were prevented from entering the Church by false reports, which we could not know to be false unless we entered it; and we would not enter unless we were compelled: thanks be to the Lord, who by His scourge took away our timid hesitation, and taught us to find out for ourselves how vain and absurd were the lies which rumour had spread abroad against His Church: by this we are persuaded that there is no truth in the accusations made by the authors of this heresy, since the more serious charges which their followers have invented are without foundation.

Others say: We thought, indeed, that it mattered not in what communion we held the faith of Christ; but thanks to the Lord, who has gathered us in from a state of schism, and has taught us that it is fitting that the one God be worshipped in unity.

The upshot–it’s good to use force to compel people to do the right thing. Fear is a handy motivator, and so is the power of the state to enforce behavior. No more of mere talk, of reasoning, of being nice. Unity is better than diversity; the authority of the Church cannot be should not be challenged; proper belief is good whether first compelled or freely adopted. If this is a battle over souls and truth, not merely a fight for standing and approval of others who are already powerful, then fear and force and laws are the tools of choice, not reasoned arguments.

So what does all this have to do with university invention policies? Perhaps the lesson is clear already. Once there are norming statements–myths, as Heaberlin and DeDeo call them–the problem becomes one of making sure these statements are properly interpreted and the interpretations enforced. Actual practice might vary from the literal claims of a norming statement once the proper interpretations have been applied. Life exists, in such a world, to serve the purposes of the norms, rather than to, say, challenge them or ignore them. That’s what makes teaching “business ethics” such a crazy thing. All that ethical talk is mostly to enforce a set of norming statements that can be found repeated in most any company’s Code of Ethics: be nice, follow company rules, ask for assistance when in doubt, or face stiff discipline. Pretty much the Augustinian way, with the company taking the place of the state, repeating what must be uncontestable for any worker. The University of California’s ethics policy goes so far as to announce that it is unethical to do anything “to achieve a ‘higher purpose.'” There is no higher purpose than to serve the university as it has stipulated that service. Even “higher purpose” has to be put in quotes to make it clear it is *impossible* for there to be any such purported higher purpose.

If we look at the development of university patent policies, we can see how the present norms were developed, and how the Bayh-Dole Act was used to disrupt them and replace them with a new narrative myth. Technology transfer became patent licensing rather than offering inventions for management. Elect to retain title became take title by notice rather than keep title one has somehow obtained. Practical application became commercialization rather than manufacture, practice, and operate. Commercialization in turn became license exclusively for a royalty. Use the patent system for public benefit became exploit patent positions for university profit.

In the new norming myth, universities by federal law are to own inventions made with federal support, and by extension, the federal government has given its approval that it is right for universities to own all faculty work. Universities, then, have been given a mandate to use patents, and by extension any ownership position, to commercialize research discoveries, and by extension anything made, composed, invented, collected, or conceived by anyone employed by, collaborating with, contracted to, or using university resources of whatever kind. Commercialization in turn has been conceived as inducing speculators to invest in making commercial products, and such inducement requires offering exclusive licenses to create sufficient interest. Otherwise, so the norming myth goes, the inventions made at universities will just “sit on the shelf” and never be used. Only a monopoly interest will stimulate investors to act.

Federal law gave university administrators a reason to adopt new policy. Before, they were afraid to act, but faced with the threat of non-compliance, they did act. Before, they were fearful of the faculty response, but given the law, they took courage. Before, they heard competing ideas about their role, but after Bayh-Dole they saw that university ownership was the true way, and all other ways were heresy. Before, they thought that each university might make its own way, but now they see how valuable it is for every university to have the same policy, so that efforts might be coordinated in a unified way across the nation.

It is a thoroughly reasonable rationalization about how power is gathered into control of an activity and how practice is recast to be, first of all, responsible to that control as presented by norming statements, as interpreted by the university administrators to form a coherent body of doctrine. At a deposition last year, I was asked to read statement after statement taken from university policies that appeared to claim the university owned all inventions made by faculty inventors. The implication was, there was one national policy on inventions, and whatever any particular wording the policy at any particular university might say (literally, for instance, that the claims to inventions was extremely narrow), the actual interpretation–the national administrative “intent,” so to speak, was that universities were to own everything they wanted to own. A policy statement was little more than a bit of Old Testament text, to be interpreted in light of the post-Bayh-Dole mandate to own everything, to profit from anything, and to suppress anything that might compete with these two administrative beliefs, or dogmas, or norming myths.

You perhaps recognize the echoes of Augustine in this account. Bayh-Dole was used to disrupt the prevailing norming myths of university invention management practice–disrupting Research Corporation and other external agents, disrupting the opportunity-first model, disrupting the idea that faculty were leaders in the pursuit of knowledge, not servants of managers, disrupting the idea that public support for research ought to lead to broad public access to the results. Force of law combined with fear–fear of non-compliance, fear of not looking like others, fear of missing out on all that filthy lucre from licensing.

It’s not enough to reason about this stuff. Norming myths don’t change with reasons. Otherwise, one might just show that the current norming myths of university invention management are just nutters–inconsistent with the law, damaging to university interests, expensive and complicated and slow and dull, and disrupting technology change. But that doesn’t matter if the primary purpose of the norming myth (and the policy statements altered or interpreted to support the myth) is to keep those in power in place, to maintain the standing of those who recite the myth. Otherwise, at best, it would appear that university patent administrators don’t know what they are doing–that is, they cannot give an account of their actions other than to show those actions are consistent with the prevailing norming myths: “we are doing what is expected of us, what everyone else is also doing, as confirmed by the leading experts in the field–anything else is stupid, wrong, heresy.”

One might come to think, then, that a way to displace the current norming myths is to use law and fear again. Law–change Bayh-Dole to prevent nonprofits from claiming to own any invention made with federal support as a condition of the federal funding or the use of any resources provided under that federal funding–exactly the prohibition Bayh-Dole already makes for subcontracts. Law–create state laws that prohibit state government from claiming to own any invention made by faculty or students as a result of employment or use of resources or by requiring the insertion of a university claim in any funding agreement. Freedom to innovate: make university ownership of inventions voluntary. Fear–fear of non-compliance is a start. Fear–of legal liability, for damages in failing to adequately market or license or enforce licenses under the present compulsory regime, for just compensation under eminent domain taking, for fraud in misstating federal law, misrepresenting actual practice, and producing public metrics designed to mislead.

But mostly what this approach will do is chase administrators from one norming myth to another. They will want to preserve their status in any transition. Few are willing to advocate for a change that might put them out of a job or reduce their standing in the jobs they have. So either one comes up with a better norming myth (better in the minds of administrators–which appears to require more money from somewhere, regardless of outcomes from licensing, preferably with less accountability) or one has a bit of a revolution, or creative destruction, or pounding some theses about innovation on the door of a university president and separating innovation from the power of university government. Church and state, state and science–neither has a good history for freedom and innovation. Order, yes. Longevity, yes. Power-preserving, yes. But not so good on freedom and innovation. Since research enterprise ought to be about finding new tools for us human primates to use, it ought, too, to be about innovation-first, not administration-first. To let go of invention administration–that’s the step that looks like disorder, like creating anarchy, like giving in to false prophets and disgruntled critics and fools. But that’s the step that has to happen, whether it’s a big one or a succession of little ones, that gets us back on a path toward freedom and innovation in the research enterprise.

Rather than “compel them to come in,” using law and fear, we ought to follow Vannevar Bush–that saint of university innovation–and base our norming myths on “the hope of better things“:

On the one hand is an absolute state, holding its people in subjection and molding them for conquest by force or trickery.  On the other, there is hope of better things.

Build a new narrative myth of university research enterprise on that hope, not on force and fear. Freedom is the starting point for innovation, even as constraint is the goal of preserving order and status.

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