Efficient State or State Efficient State or State under the Rule of Law?under the Rule of Law?

11th Lecture11th Lecture

Dr.Dr. habil. MariaMariaBORDASBORDAS

National University of Public ServicesNational University of Public ServicesBudapest, HungaryBudapest, Hungary

OUTLINEOUTLINE

The Concept of the State under the Rule of LawThe Concept of the State under the Rule of LawThe Concept of the Efficient StateThe Concept of the Efficient StatePublic administration being bound by law and Public administration being bound by law and efficiencyefficiencyPolitical and legal framework of efficient state in Political and legal framework of efficient state in HungaryHungaryThe relationship between the efficiency and The relationship between the efficiency and stateness under rules of law in the governmental stateness under rules of law in the governmental policypolicyConclusionsConclusions

INTRODUCTIONINTRODUCTION

„„We are free because we live under We are free because we live under civil laws”civil laws”

(Charles-Luis de Secondat Montesquieu)(Charles-Luis de Secondat Montesquieu)

(Spirit(Spirit of the Laws, volume 1,p:221,1748) of the Laws, volume 1,p:221,1748)

the principle state of law can be overwritten by the aspects of efficient states?

Current political situation in Current political situation in Hungary Hungary

two-thirds majority in the Parliament new “majoritarian’' Constitution, so-called

”Fundamental Law„ efficient state versus state under rules of

law’s elimination

Signals of AuthocracyInstitutionalised Forced Consensus Institutionalised Forced Consensus

Limitation of role he Constitutional CourtLimitation of role he Constitutional Court

Suspension of the Separation of Powers Suspension of the Separation of Powers

The GovernmentThe Government

ParliamentParliament

Other Institutions Other Institutions

Vertical Separation of Powers Vertical Separation of Powers

Erosion of Fundamental FreedomsErosion of Fundamental Freedoms

Criticizism of EUCriticizism of EU

European constitutional culture and European constitutional culture and democratic traditionsdemocratic traditions

Principle of checks and balancesPrinciple of checks and balances

Venice Commission inquiring on 8 basic Venice Commission inquiring on 8 basic acts acts

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BackgroundBackground

Increasing complexity of public Increasing complexity of public organizations, caused by organizations, caused by generations of reformsgenerations of reformsUS: New Public ManagementUS: New Public ManagementEU: Neo-Weberian model EU: Neo-Weberian model Conflict between effective state and Conflict between effective state and state under rules of low in Hungary state under rules of low in Hungary after the elections held in 2010 after the elections held in 2010

The supremacy of lawThe supremacy of law

A concept of justiceA concept of justice

Restrictions on the exercise of discretionary powerRestrictions on the exercise of discretionary power

The doctrine of judicial precedentThe doctrine of judicial precedent

The common law methodologyThe common law methodology

Legislation should be prospective and not retrospectiveLegislation should be prospective and not retrospective

An independent judiciaryAn independent judiciary

The exercise by Parliament of the legislative power and The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executiverestrictions on exercise of legislative power by the executive

An underlying moral basis for all law.An underlying moral basis for all law.

AristotleAristotle:: "The rule of law is better than that of any individual." "The rule of law is better than that of any individual."Term of the state under the rule of lawTerm 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:

„„RechtsstaatRechtsstaat””concept in concept in continental European continental European legal thinking,legal thinking, principlesprinciples are: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

Principles: Principles: tthe rule of law has three principles.he rule of law has three principles.

1st: everyone is equal before the law (so the rich 1st: everyone is equal before the law (so the rich and the rulers of a country do not get preferential and the rulers of a country do not get preferential treatment). treatment).

2nd:the law must be accessible to all who are 2nd:the law must be accessible to all who are subject to it. This requires that the law be publicly subject to it. This requires that the law be publicly posted so that anyone can see it and no one can posted so that anyone can see it and no one can claim ignorance of the law as a reason for breaking claim ignorance of the law as a reason for breaking it. it.

3rd: everyone has a right to a fair and timely trial.3rd: everyone has a right to a fair and timely trial.

The concept of the state under the rule The concept of the state under the rule of lawof law

Rule of Law in the WorldRule of Law in the World

American civil serviceAmerican civil service New Public ManagementNew Public Management (NPM)(NPM)Efficiency orientationEfficiency orientation ((less standing in line, less standing in line, faster administration, online administrationfaster administration, online administration,etc),etc)

The hybrid character of NPMThe hybrid character of NPM– Economic organization theoryEconomic organization theory

Centralization, ContractualismCentralization, Contractualism

““Make the managers manage”Make the managers manage”

– ManagerialismManagerialismDecentralization, DevolutionDecentralization, Devolution

““Let the managers manage”Let the managers manage”

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Neo-Weberian ReformsNeo-Weberian Reforms

Bringing the bureaucracy back inBringing the bureaucracy back in

A strong and modernized stateA strong and modernized state

Classical Weberian principles Classical Weberian principles ((RechtstaatRechtstaat) combined with ) combined with – Result orientationResult orientation– Citizen orientations, participationCitizen orientations, participation– Professionalization of public service Professionalization of public service

Continental EuropeContinental EuropeNeoliberalism has been rejected by Continental Neoliberalism has been rejected by Continental Europe; Europe;

New Public Management seen as one of the New Public Management seen as one of the factors responsible for the development of the factors responsible for the development of the weak state;weak state;

Requirement for firmly and rapidly solves the Requirement for firmly and rapidly solves the business of public interest;business of public interest;

However, the requirement for the efficient state However, the requirement for the efficient state has not decreasedhas not decreased;;

the concept of the efficient state tends to more the concept of the efficient state tends to more and more embrace the and more embrace the strong statestrong state

two basic questions:two basic questions:

11stst: what is the state, whose efficiency we wish to : what is the state, whose efficiency we wish to measure? measure?

22ndnd: what is the state to be considered smaller and : what is the state to be considered smaller and cheaper? cheaper?

The concept of efficient state The concept of efficient state

•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”

Strong state vs weak stateStrong state vs weak stateThe state consists of three components: the idea of The state consists of three components: the idea of the state (nationalism); the physical base of the state the state (nationalism); the physical base of the state (population, resources, technology); and the (population, resources, technology); and the institutional expression of the state (administrative and institutional expression of the state (administrative and political systems). political systems). Buzan, Barry. People, States, & Fear, p. 65 Buzan, Barry. People, States, & Fear, p. 65

Strong state: security can be viewed primarily in terms Strong state: security can be viewed primarily in terms of protecting the components of the state from outside of protecting the components of the state from outside threat and interference, and where the idea of state, threat and interference, and where the idea of state, its institutions and its territory will be clearly defined its institutions and its territory will be clearly defined and stable in their own right(developed world)and stable in their own right(developed world)

Weak state: high level of concern with domestically Weak state: high level of concern with domestically generated threats to the security of the generated threats to the security of the gggovernment. government. (Third World)(Third World)

GlobalGlobal PeacePeace IndexIndex

Public administration being Public administration being bound by law and efficiencybound by law and efficiency

The The Weberian model Weberian model of public administration of public administration evolved from the 19evolved from the 19thth century; century;

From the beginning of the 20From the beginning of the 20thth century:rule of century:rule of law requirements for the legal regulation of law requirements for the legal regulation of public administration;public administration;

1995: U.S. President Bill Clinton: “the era of 1995: U.S. President Bill Clinton: “the era of „age of big government is over” „age of big government is over”

1919

The revival of WeberianismThe revival of Weberianism

Precise and unambiguous rules, legalityPrecise and unambiguous rules, legalityImpartiality, due processes, ethical capital, public Impartiality, due processes, ethical capital, public ethosethosPersonnel that distinguish between their interests as Personnel that distinguish between their interests as private citizens and their duties as civil servantsprivate citizens and their duties as civil servantsInstitutional capacityInstitutional capacityMerit based recruitmentMerit based recruitmentA salary system which is sufficiently generous to A salary system which is sufficiently generous to make public officials less susceptible to briberymake public officials less susceptible to briberyA transparent system of responsibilityA transparent system of responsibility

Possible future developmentsPossible future developments

Will the post-NPM reforms last for long?Will the post-NPM reforms last for long?– Probably not – new demands for more devolution Probably not – new demands for more devolution

and horizontal specialization and horizontal specialization – New reform concepts are coming up: quality New reform concepts are coming up: quality

services and multi-level governance, good services and multi-level governance, good governancegovernance

Governments are a complex combination of:Governments are a complex combination of:– Old Public AdministrationOld Public Administration– New Public ManagementNew Public Management– Post-NPM featuresPost-NPM features

Political and legal framework of Political and legal framework of efficient state in Hungaryefficient state in Hungary

after 2007: the neo-after 2007: the neo-liberalism refused liberalism refused generally;generally;

requirement for a strong requirement for a strong and effective state and effective state which is, taking which is, taking emphasis to the interest emphasis to the interest of national economyof national economy;;

2/3 majority 2/3 majority authorization authorization

Centralization intention of the Centralization intention of the governmentgovernment

The rapid and clear implementation of The rapid and clear implementation of governmental decisionsgovernmental decisions - for which the two third - for which the two third majority was not enough - became necessary in majority was not enough - became necessary in order to implementation of governmental policy order to implementation of governmental policy in short term can be manageable;in short term can be manageable;

The enhancement of right wing ideology’s The enhancement of right wing ideology’s influence has been carried out on many areas;influence has been carried out on many areas;

Taking under political control the economy;Taking under political control the economy;

““Central field of power” versusCentral field of power” versus“dual field of power”“dual field of power”

the neoliberal policy of leftwing-liberal elite and the neoliberal policy of leftwing-liberal elite and the national policy of right wing elite are the national policy of right wing elite are antagonisticantagonistic;;

long-term public policy cannot be formed and long-term public policy cannot be formed and the central willingness is slivering in the “dual the central willingness is slivering in the “dual field of power”field of power”

The political legitamicity is given by the majority The political legitamicity is given by the majority of electors of electors

The relationship between the The relationship between the efficiency and stateness under rules efficiency and stateness under rules

of law in the governmental policyof law in the governmental policyThe withdrowal of laws from the scope of norms The withdrowal of laws from the scope of norms controll of Constitutional Court and Law of controll of Constitutional Court and Law of Legislation has provided a possibility for quick Legislation has provided a possibility for quick and determined execution of economical policy and determined execution of economical policy of goverment;of goverment;

During the last 20 years: permenant During the last 20 years: permenant confrontation of govermental parties and confrontation of govermental parties and opposition, the consensus over the basic opposition, the consensus over the basic reforms requiring 2/3 of majority….reforms requiring 2/3 of majority….

Economic governance Economic governance

Dilemma the state intervention how can Dilemma the state intervention how can achieve the economical goals;achieve the economical goals;

There is no template and adequate There is no template and adequate solution in the economics. solution in the economics.

Currently the centralization effort of Currently the centralization effort of government - at least concerning the government - at least concerning the market - still is not on the level of market - still is not on the level of economic guiding system of socialismeconomic guiding system of socialism

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

CONCLUSIONCONCLUSION

CONCLUSIONCONCLUSION II.II.TThe efficiency, as a goal of the public policy, he efficiency, as a goal of the public policy, has been realized in the weberian model by the has been realized in the weberian model by the way of legal regulationsway of legal regulations;;

Elimination of the checks and balances in the Elimination of the checks and balances in the state authority system, together with the state authority system, together with the centralization tendencies, aimed that the central centralization tendencies, aimed that the central political decision did not have any object to its political decision did not have any object to its implementation. implementation.

TThe implementation of the economic policy by he implementation of the economic policy by all means, as the end can not justify the meansall means, as the end can not justify the means;;

ThankThank youyou for foryour attention!your attention!