Efficient State or State under the Rule of Law? 11th Lecture

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Efficient State or State under the Rule of
Law?11th Lecture
Dr. habil. Maria BORDAS National University of
Public Services Budapest, Hungary
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OUTLINE

• The Concept of the State under the Rule of Law
• The Concept of the Efficient State
• Public administration being bound by law and
  efficiency
• Political and legal framework of efficient state
  in Hungary
• The relationship between the efficiency and
  stateness under rules of law in the governmental
  policy
• Conclusions

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INTRODUCTION

• We are free because we live under civil laws
• (Charles-Luis de Secondat Montesquieu)
• (Spirit of the Laws, volume 1,p221,1748)

the principle state of law can be overwritten by
the aspects of efficient states?
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Current political situation in Hungary

• two-thirds majority in the Parliament
• new majoritarian' Constitution, so-called
  Fundamental Law
• efficient state versus state under rules of
  laws elimination

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Signals of Authocracy

• Institutionalised Forced Consensus
• Limitation of role he Constitutional Court
• Suspension of the Separation of Powers
• The Government
• Parliament
• Other Institutions
• Vertical Separation of Powers
• Erosion of Fundamental Freedoms

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Criticizism of EU

• European constitutional culture and democratic
  traditions
• Principle of checks and balances
• Venice Commission inquiring on 8 basic acts

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Background

• Increasing complexity of public organizations,
  caused by generations of reforms
• US New Public Management
• EU Neo-Weberian model
• Conflict between effective state and state under
  rules of low in Hungary after the elections held
  in 2010

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Aristotle "The rule of law is better than that
of any individual."
Term of the state under the rule of law
The rule of law is fundamental to the western
democratic order. The essential characteristic of
the rule of law are

• The supremacy of law
• A concept of justice
• Restrictions on the exercise of discretionary
  power
• The doctrine of judicial precedent
• The common law methodology
• Legislation should be prospective and not
  retrospective
• An independent judiciary
• The exercise by Parliament of the legislative
  power and restrictions on exercise of legislative
  power by the executive
• An underlying moral basis for all law.

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Rechtsstaat

• concept in continental European legal thinking,
  principles are

• Supremacy of national constitution
• Civil society is equal partner to the state
• Separation of powers
• The judicature and the executive are bound by law
• Transparency
• Review of state decisions and state acts by
  independent organs,
• Hierarchy of laws,
• Requirement of clarity and definiteness
• Reliability of state actions
• Prohibition of retroactivity
• Proportionality of state action
• Monopoly of the legitimate use of force

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The concept of the state under the rule of law

• Principles the rule of law has three principles.
• 1st everyone is equal before the law (so the
  rich and the rulers of a country do not get
  preferential treatment).
• 2ndthe law must be accessible to all who are
  subject to it. This requires that the law be
  publicly posted so that anyone can see it and no
  one can claim ignorance of the law as a reason
  for breaking it.
• 3rd everyone has a right to a fair and timely
  trial.

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Rule of Law in the World
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American civil service New Public Management
(NPM)

• Efficiency orientation (less standing in line,
  faster administration, online administration,etc)
• The hybrid character of NPM
• Economic organization theory
• Centralization, Contractualism
• Make the managers manage
• Managerialism
• Decentralization, Devolution
• Let the managers manage

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Neo-Weberian Reforms

• Bringing the bureaucracy back in
• A strong and modernized state
• Classical Weberian principles (Rechtstaat)
  combined with
• Result orientation
• Citizen orientations, participation
• Professionalization of public service

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Continental Europe

• Neoliberalism has been rejected by Continental
  Europe
• New Public Management seen as one of the factors
  responsible for the development of the weak
  state
• Requirement for firmly and rapidly solves the
  business of public interest
• However, the requirement for the efficient state
  has not decreased
• the concept of the efficient state tends to more
  and more embrace the strong state

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The concept of efficient state

• two basic questions
• 1st what is the state, whose efficiency we wish
  to measure?
• 2nd what is the state to be considered smaller
  and cheaper?

• organizations of the state the legislature,
  public administration, the judiciary, and the
  external supervisory bodies, as well as the
  system of private law organizations discharging
  state functions.
• cheaper and smaller state (privatization and
  market competition)
• more market less state

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Strong state vs weak state

• The state consists of three components the idea
  of the state (nationalism) the physical base of
  the state (population, resources, technology)
  and the institutional expression of the state
  (administrative and political systems). Buzan,
  Barry. People, States, Fear, p. 65
• Strong state security can be viewed primarily in
  terms of protecting the components of the state
  from outside threat and interference, and where
  the idea of state, its institutions and its
  territory will be clearly defined and stable in
  their own right(developed world)
• Weak state high level of concern with
  domestically generated threats to the security of
  the ggovernment. (Third World)

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Global Peace Index
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Public administration being bound by law and
efficiency

• The Weberian model of public administration
  evolved from the 19th century
• From the beginning of the 20th centuryrule of
  law requirements for the legal regulation of
  public administration
• 1995 U.S. President Bill Clinton the era of
  age of big government is over

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The revival of Weberianism

• Precise and unambiguous rules, legality
• Impartiality, due processes, ethical capital,
  public ethos
• Personnel that distinguish between their
  interests as private citizens and their duties as
  civil servants
• Institutional capacity
• Merit based recruitment
• A salary system which is sufficiently generous to
  make public officials less susceptible to bribery
• A transparent system of responsibility

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Possible future developments

• Will the post-NPM reforms last for long?
• Probably not new demands for more devolution
  and horizontal specialization
• New reform concepts are coming up quality
  services and multi-level governance, good
  governance
• Governments are a complex combination of
• Old Public Administration
• New Public Management
• Post-NPM features

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Political and legal framework of efficient state
in Hungary

• after 2007 the neo-liberalism refused generally
• requirement for a strong and effective state
  which is, taking emphasis to the interest of
  national economy
• 2/3 majority authorization

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Centralization intention of the government

• The rapid and clear implementation of
  governmental decisions - for which the two third
  majority was not enough - became necessary in
  order to implementation of governmental policy in
  short term can be manageable
• The enhancement of right wing ideologys
  influence has been carried out on many areas
• Taking under political control the economy

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Central field of power versusdual field of
power

• the neoliberal policy of leftwing-liberal elite
  and the national policy of right wing elite are
  antagonistic
• long-term public policy cannot be formed and the
  central willingness is slivering in the dual
  field of power
• The political legitamicity is given by the
  majority of electors

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The relationship between the efficiency and
stateness under rules of law in the governmental
policy

• The withdrowal of laws from the scope of norms
  controll of Constitutional Court and Law of
  Legislation has provided a possibility for quick
  and determined execution of economical policy of
  goverment
• During the last 20 years permenant confrontation
  of govermental parties and opposition, the
  consensus over the basic reforms requiring 2/3 of
  majority.

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Economic governance

• Dilemma the state intervention how can achieve
  the economical goals
• There is no template and adequate solution in the
  economics.
• Currently the centralization effort of government
  - at least concerning the market - still is not
  on the level of economic guiding system of
  socialism

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CONCLUSION

• To the basic principle of the Constitutional
  Court One can not establish the state under the
  rule of law against the state under the rule of
  law, we can add another one One can not
  establish the efficient state against the state
  under the rule of law, either.

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CONCLUSION II.

• The efficiency, as a goal of the public policy,
  has been realized in the weberian model by the
  way of legal regulations
• Elimination of the checks and balances in the
  state authority system, together with the
  centralization tendencies, aimed that the central
  political decision did not have any object to its
  implementation.
• The implementation of the economic policy by all
  means, as the end can not justify the means

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Thank you foryour attention!
Any questions ?