The thought of the day: Is there any connection between functional justice and functional stupidity?

The concept of functional stupidity

Mats Alvesson, professor at the School of Economics and Business in Lund (Sweden) is the father of the theory of functional stupidity. Using this theory, he can explain why we get professions with no content (emptied of any substance), most people have to study longer than necessary and the university studies have the status of previous high school education being consigned to a lower level of intellectual expectations.

Alvesson describes our society metaphorically as a bubble. The bubble society has replaced the previous pyramid society. Alvesson warns against blowing this bubble too much or as much as it might be possible. Alvesson talks about over-education, inflation of professional titles, formalities such as certification and authorisation as the focus moved from real competence towards formal competence. Not much really qualified or productive work is done in this bubble society!

In this bubble society, the functional stupidity is a requirement according to Alvesson. A certain degree of stupidity or the lack of critical questioning may improve the efficiency of organisations. Following the stream without asking any questions, making opposition to change and placing the accent on the importance of immediate consensus are all forms of avoidance that may give positive results regarding productivity on short term. The service companies -such as media, consulting and fashion design - are more vulnerable than traditional production companies, where the mistakes and product failures are easier to discover. Alvesson describes the functional stupidity as a necessity for bigger organisations, though the proportions of the "bubble" must be kept under control.

In the meanwhile, the organisation design based on functional stupidity has been adopted even more enthusiastically in the public sector and even the state itself may be described as an organisation.

Would Alvesson uphold his belief that stupidity is beneficial when the organisation that we talk about is the judicial system or the public health system? I can only observe that the risk of failure of a private company can provide the tool to temper the frenzy or the temptation to replace substance with symbols in the private sector. This risk of commercial & financial failure does not have relevance to systems situated completely within the framework of public services. In my view, this enchantment for functional stupidity in relation to public services cannot be defended by the same arguments, because productivity on short term is not the main goal in the public sector.

In contrast to Alvesson, I  see that there is a very thin line between cynicism and functional stupidity and sincerely, I do not believe that "stupidity" would remain consigned to the work place, we might get used to replace substance with emptiness even in our private lives, no separation of this kind is actually possible. Therefore, a bubble society filled with stupidity - functional or not - is the perfect description of a dystopian society on the edge of collapse into something else. 

Functional or formal justice?

In court one may search justice, but it will be formal justice that one can actually get. Substantive justice is something that only legal scholars and philosophers may care about.  Is there any relation of equivalence between functional and formal justice and if there is, what may be the impact of the functional stupidity on the judicial results? This is a question searching for an answer. The theory of Alvesson affirms that stupidity is like oil for the organisational machinery and the gain is reflected by an increased productivity. By analogy, in the justice system productivity can be described as effectiveness and lower process costs. This is why, the justice one can get is "symbolic" justice, a kind of justice that maintains the trust of the people in the system, but which does not deliver the "real deal" (apropos of the social contract), but just a projection of it. Appeal to formalities should not be used as a replacement of the "real deal", as a short cut, as an occasion to avoid substantive thinking.

Example from the preliminary ruling practice 

The joined cases for preliminary ruling submitted by an Italian court in C?692/15 to C?694/15 provide the perfect example of functional stupidity applied to public judicial service. The cases concern the obligation to apply for a priori authorisation in the case of a company intending to run private security business in Italy. Is this requirement compatible with Articles 49 and 56 TFEU? The applicant before the referring court forwarded this plea, however the referring court trying to formally fulfil the obligations imposed by Article 267 TFEU, submitted for a preliminary ruling without defining the factual and legislative context of the questions it asks or, at the very least, explaining the factual circumstances on which those questions are based. The referring court refers for preliminary ruling even if it considers that the situation is purely internal and it intends to reject the application of the private security company.

On the substance - in a world that still cares about the substance - the question whether or not the situation can be described as purely internal or not is also a question of EU law. However, the CJEU was unable to answer because the referring court did not cooperate in good faith with the CJEU as it is supposed to do according to Article 267 TFEU. The result is that CJEU declares its lack of jurisdiction while reminding the referring court that it has the right to re-submit a request for a preliminary ruling when it is in a position to provide the CJEU with all the information enabling the CJEU to give a ruling.

If the situation does have a cross-border dimension - actually or potentially - and the rights of individuals suffer prejudice, in a world that cares about substance, it should be no difference, whether a court fails to refer for preliminary ruling in the meaning of Article 267(3) TFEU or a court fails to cooperate in good faith i.e. to use properly the instrument of cooperation provided by the mechanism of preliminary rulings in EU law. Functional stupidity in matters of law can be associated with a fake security camera giving the impression of a society governed by law.