Barrington

INTL 204. Introduction to Comparative PoliticsAssoc. Prof. Murat Somer, CASE 153 E-mail: musomer@ku.edu.tr Fall 2012 Office Hours: Tuesdays, 2:00-4:00pm

Chapter 7 : Unelected Components of Government: Judiciaries, Bureaucracies, and MilitariesLearning ObjectivesDiscuss the tasks of the judiciary, bureaucracy, and military.Describe how each of these unelected governmental components shape policy decisions.Discuss the advantages and disadvantages of judicial review.Discuss the strengths and weaknesses of a strong bureaucracy.Describe the roles that the judiciary, bureaucracy, and military play in the TIC cases.2OverviewUnelected components of government: Major political institutions whose officials are almost never? elected by public:

Judiciary

Bureaucracy

Military

Discuss: How is this compatible with democracy? Why do democracies need such unelected bodies?The JudiciaryConsidered as the third branch of governmentStabilizes political system by solving disputes related to the lawComparative politics analyze how a specific judicial decision affects policy outcomesThe judiciary is supposed to have no pressure from legislature or executive: judiciary independence.Judicial ruling is divided by civil law or common law

Why do democracies have more lawyers per capita?Civil LawJudges interpret the already existing law.Existing law is the last resortLess room for judges individual judgmentsExamples: MexicoCommon LawJudges have room to interpret the lawJudges case ruling effects the law: case lawThe decisions taken at previous high courts affect the decisions of the judges: stare decisisExamples: United StatesTasks of the JudiciaryDetermining Violation of Law and Appropriate PenaltyTo settle disputes by deciding the guilt or innocence of the individuals charged with a crimeDepending on the country, judges or juries have to power to decide so

Interpretation of Vague Laws Passed by Other Branches of GovernmentNo law is clear so as to be reached a consensus uponCourts are there to interpret the vague & unclear lawsSometimes laws are intentionally written vaguely

Tasks of the JudiciaryReview of the Constitutionality of Existing Law and PolicyJuridical review: Judiciary decides on whether new laws/policies are line with the constitution (constitutional juridical review) or with the existing laws (statutory judicial review)

Creation of New Government Policy in Response to a Pressing Social ProblemThe courts can dictate new laws in addition to interpretingThe court acts like a legislator or bureaucrat: juridical activism

Settlement of Civil Disputes and Disputes Between Units of GovernmentCourts can solve disputes among individuals; between a company and an individual; between two different units of governmentTort law concerns civil disputes. When a civilian is harmed, the resolution of the disputes falls within the category of tort law

Legal Sanctioning of Particular ActsProviding official decision to such matters: divorce, child adoption, name changes, distribution of property upon someones death, etc

To what extent is juridical review compatible with democracy?

Who should decide whether conscientious objection should be allowed?What about headscarves in government?Privatization?

Two waysPolitical

Parties/representatives in the Parliament Executive decision of the governmentDirectly by people through a referandumJudicial

Constitutional court in Ankara decidesCourts makde decisons based on individual appealsEuropean Court of Human Rights court in Brussels decides

Think and DiscussWhat is the most important task of the judiciary? What makes this task so important?15The JudiciaryOrganization of the Judicial Branch16Organization of the JudiciaryCourt systems have complex hierarchical structures (example: provincial courts at the bottom, supreme courts at the top)

Only one Supreme Court at the top: US, Australia, Finland, Paraguay

Two courts at the top (Supreme and Constitutional in general): Benin, Gabon, Lithuania, South Africa, South Korea, Thailand

The United Kingdom has no juridical review.

True or False?Traditonally true, due to the notion of parliamentary sovereignty, laws passed by the parliament are constitutonal by default.

False, with the Cosntitutional Reform Bill of 2005, the UK has recognized that the UK courts have to take into account the rulings of European courts in matters of fundamental rights. Anti-terrorism bill was dclared unconstitutional because of European rulings and Blair was forced to change the law. A Supreme Cort has been established with the Lords of Appeal as its first members. Germany has a very strong judiciary completely independent of the other branches of government.

True or False?Yes, because of the lawless Nazi past, Germany was founded as Rechts Staat. The Federal Constitutional Court has powers of juridical review over the rules and policies of other branches. The Court, whose justices can only be removed by the court itself, banned far-right and far-left parties.

No, the legislature appoints the justices (8 by the Bundestag and 8 by the Bundesrat)Comparatively speaking, France has one of the weakest judiciaries. This is bacause it has a civil law tradition.

True or False?

True, in civil law, judges have less power to interpret the law and their interpretaions do not become binding on other judges (do not form precedent).

False, other countries also have civil law tradition but have stronger judiciaries.The JudiciaryAdvantages of Strong JudiciariesA check on majority tyrannyA key component of the rule of law in politics and economics

Disadvantages of Strong JudiciariesPower in the hands of unelected officialsThe potential to advance a political agenda24Advantages & Disadvantages of Strong JudiciaryADVANTAGESDISADVANTAGESChecks & balances the ability of the majority: minority protection provided against majoritys tyrannyToo much power in the hands of unelected officialsImportance of rule of law in politics and conomics. Secures rule of law, contractual relations. Rule of law tends to prevent corruption and thus corrupt executivesPotential of judiciary to advance a political and partial agenda. Difficult to see that judges are always objective. They might have personal and ideological stakes in juridical decisionsTheory of Inverse Judicial PowerWhy are some courts aggressive policymakers?Inverse judicial power theory: The power of the judiciary is inversely related to the unity of other branches

Judiciaries become more independent when executive and legislative branches are weak.

Examples: Post-Communist states like Russia (post-communist judicial activism)The BureaucracyBureaucracy: The executive branch which oversees the implementation of the laws that legislature makes

Divided vertically into various departments and agencies

Implement policies in particular areas: agriculture, labor, environment

It has power and autonomy fourth branch of government

As the size of the government grows, bureaucracy grows as well and it gets more difficult oversee bureaucratic actionsThe BureaucracyTasks of the Bureaucracy Implementation of laws and policiesInterpretation of existing but vague awsAgenda setting and advising on policy specificsPolicy creation28Tasks of BureaucracyImplementation of Laws and PoliciesTo execute laws and policies made by legislative branches.At upper level of bureaucracy: planning of the implementationAt lower level of bureaucracy: routine duties; inspecting individuals, corporations, etc

Agenda-Setting and Advising on Policy SpecificsAt higher levels of bureaucracy, executives might promote their area for the implementation of required policies (efforts in setting the policy agenda)Bureaucrats can provide detailed information to legislators while a specific policy is draftedExample: In the US, bureaucrats testify in congress during specific policy discussionsMiddle/Lower level bureaucrats can give suggestions; their superiors can filter these suggestions before passing them to upper levels.

Tasks of BureaucracyInterpretation of Existing but Vague LawsA particular law can be unclear/vague intentionally or unintentionally.In vague situations, bureaucrats can fill in the blanks of vague laws

Policy CreationBureaucracy can create policies from scratchSpecific rules for an issue may be absent, thus the bureaucracy can fill in the blank

Think and DiscussWhat is the bureaucracys single most important task? What makes this task so important?

31The BureaucracyOrganization of Bureaucracies Cabinet department or ministrySecretary or ministerCivil service and civil servantsMerit system versus spoils systemSpecialist approach versus generalist approach 32Bureaucratic OrganizationChief executive appoints the top officials in each branch of the bureaucracyTop officials tenure in office depends on chief executives termTop officials might be fired because of low performance although chief executive is still there.Middle Level bureaucrats are not generally appointed. They are civil servants, and are hired because of their expertise. In democracies civil servants are selected by merit system (based on competence)Opposite of merit system is spoils system; where even middle officials are appointed

American Federal Bureaucracy4 Types of government agencies: cabinet department, regulatory agency, government corporation and independent executive agenciesCabinet departments are the closest to the chief executive. They are headed by a secretary (Example: Homeland Security Department, 2002)In other countries Cabinet Departments are known as ministriesThere are 4 times more independent agencies than departments: Environmental Protection Agency, FED, etcIn the US Merit System, specialist approach is used (individuals with a specific skill fill a specific role during all their governmental career). In European Merit System, there is generalist approach where officials generally have a law degree and can change department

The BureaucracyAdvantages of Large and Powerful Bureaucracies StabilityExpertiseImpartial and fair application of rulesDisadvantages of Large and Powerful BureaucraciesInefficiency through overexpansion and wasteful spendingPower in the hands of unelected officialsResistance to reform and creative solutions35Advantages & Disadvantages of Strong BureaucracyADVANTAGESDISADVANTAGESPromotes stability. Especially good when there is instable governmentsBureaucrats might favor expansion of their specific departments Monetary burden, over-expansionThanks to merit system, bureaucracies provide great amount of expertise for relevant policiesBureaucrats are unelected and may not feel responsible for voters. This might create lack of responsiveness in bureaucraciesEnables fair application of laws; especially specific lawsBureaucracies might resist to reforms. Bureaucracies are rigid organizations and reforms might challenge their current position.Bureaucratic Autonomy TheoryBureaucracies, over time, might develop autonomy.Its on the interest of bureaucrats to secure the autonomy of their department when they get more experienced.Experienced bureaucrats are more difficult to control and to be replaced.CASE [BRITAIN] Permanent Secretaries: They hold their position even when the related ministries change. They can alter the policies by filtering the information to be given to ministers. Additional terms regarding BureaucracyNomenklatura system: Method of establishing bureaucratic system in USSR. The system involves a list of names loyal to the regime. These names gain positions via their connections and merit. The system persists in current RussiaTechnocrats:Bureaucrats who are experts of their areas; and are not ardent followers of the governments ideology.Reds:In China, Reds were bureaucrats unlike technocrats- who strongly adhered to communist ideology. They conflicted with Chinese technocrats.Egypt's aftershocks: Military vs the people

The MilitarySimilar to other parts of bureaucracy by its hierarchy and follows standard operating procedures

Yet, it is most imposing branch on government; thus different from other bureaucratic organizations

Position of the military vis-a-vis elected officials vary across countries:Civilian control of the military (ex: United States): Elected officials decide on military issues such as military spending. Yet, in most other countries, military enjoys some autonomyTasks of Military Under Civilian ControlDefending the countryDeterring the attack of the external forceIncreasing spending on security might trigger rival neighbors arms raceMilitary can / might influence the decision on arms race

Developing into a Professional Fighting ForceBecoming more focused and specialized in military matters such as national securityIn professionalized militaries, academics play a great role

Controlling the EmpireGovernments used to control militaries to expand territories of control colonies.Militarism: Concentration on territorial expansion and thus great increase of military spending takes placeThink and DiscussWhat is the single most important task of the military? What makes this task so important?

42Military Rule & PraetorianismCoup dtat: Military officiers can intervene to overthrow the existing civilian government. Generally, coups are lead by small number of military officers

Junta: A group of leaders of the various segments of a military organization which conduct the military rule. Juntas are observed in Latin American military regimes

Preatorianism: A political system where the military takes an active role in political decisions openly or covertlyAdvantages & Disadvantages of Strong MilitaryADVANTAGESDISADVANTAGESCan take tough policy decisions regardless of what people can think about. People cannot elect military administrationsAlthough most military leaders take control to end corruption and social chaos, they may be reluctant to surrender their power. They can think that country will be worse off if they relinquish their powerStrong military policies can battle corruption and restore order (Example: South Korea, General Park Chung)Even if military relinquishes its power, there is no guaranty that it will no more interfere with politics.New Professionalism TheoryMore professional militaries might become more focused on issues like economic development and corruption.Hence such militaries might become more likely to intervene because of domestic concernsAlfred Stepans new professionalism theory: What the military perceives as mission is important: It might perceive internal or external threat. Perception of internal threats might provoke military coups.CASE [NIGERIA]: Nigerian army did not have to worry about external threats, but was concerned with internal threats. Hence Nigerian coup had domestic focus45According to new professionalism theory, what determines to what extent there is civilian control over the military?

What other factors can you think of that might explain this?Who decides where the main threat comes from and what the militarys mission should be?New democracies have moved. Parliamentary sovereignty and judicial/constitutional reviewA) away from; closer toB) closer to; away from

What do we call it when the judiciary begins to act like a legislator or bureaucrat?In your opinion, do the advantages of powerful unelected officials outweigh their advantages?

On which factors does the answer to the above question depend in a paticular country?Topic in Countries The United KingdomCommon law approach to the judiciary; relative absence of judicial review authority; new Supreme Court established in 2009Bureaucracy declined under Thatcher; culture of subordination to elected officials, yet significant discretion over policy detailsOne of the worlds most powerful, professional, and civilian-controlled militariesIN THEORY AND PRACTICEBUREAUCRATIC Autonomy Theory and the United KingdomBureaucratic autonomy theorybureaucrats try to maximize their departments independenceOnce bureaucrats are established, they are more difficult to control and replaceBritish bureaucracy was autonomousPermanent secretary can influence government policyTopic in Countries GermanyIndependent judiciary with substantial review authority; relatively powerful Federal Constitutional Court, but lower courts are all under the control of the LnderDecentralized bureaucracy; relatively small in size compared to other European countriesMilitary under firm civilian control since WWII; has focused more on peacekeeping activities, leaving broader security to NATO and European UnionTopic in Countries IndiaHierarchical judicial structure; Supreme Court has ruled that the legislature cannot alter constitutions basic structureLarge bureaucracy with carefully selected elite (IAS) at the top; poor pay and high demands lead many to leave for private sectorLarge military; possesses nuclear weapons; generally under civilian control

Topic in Countries MexicoCivil law tradition; practice of genuine judicial review relatively newBureaucratic appointments had been based on spoils system; liberalization has led to increased professionalism, but corruption remainsThe military has little political power; has taken a back seat to civilian leadersIN THEORY AND PRACTICENew Professionalism Theory and Mexicos Drug WarAlfred Stepans new professionalism theoryHighlights the militarys perception of its missionGreatest challenge to Mexicos military is the way against drug cartelsShifts mission to internal rather than external threatsTopic in Countries BrazilComplex court system; Supreme Federal Court has ample power to check other branchesBureaucracy seen as comparatively competent, but corruption continues to be a problemHistory of military involvement in government; retains control of the Military Police, often criticized for their brutalityTopic in Countries NigeriaMilitary governments neglected federal and regional courts; fostered judicial corruptionRampant corruption in the bureaucracy; appointments often due to regional, ethnic, or family tiesOn and off episodes of military authoritarianism since independenceTopic in Countries RussiaJudiciary maintains a degree of independence, but this has decreased under Putin; corruption remains a problemIncrease in size of bureaucracy under Putin; appointments given to those loyal to Putin; corruption remains a serious problemCivilian military control during Soviet period continued to the present; used for internal security; hazing practices became political issueIN THEORY AND PRACTICERussia and the Theory of Inverse Judicial PowerInverse judicial power theorythe courts power is inversely related to the power and unity of the other branches

Russia experiencing increasing threats to judicial independence by PutinThink and DiscussWhich of the theories discussed in this chapter seems most convincing, and why?61Topic in Countries ChinaCourts lack independence from CCP; problems with corruption; large numbers of civil cases filed each yearRelatively significant bureaucratic authority over policy implementation; increased emphasis on technical expertise rather than ideological commitmentPeoples Liberation Army (PLA) has played a central role in politics since 1949; relatively large military budgetTopic in Countries IranJudiciary is constitutionally required to enforce ideological conformity; Supreme Leader has strong say over legal system; authority to review legislation given to Guardian CouncilUnlike China, ideological loyalty is key; bureaucratic corruption is an issueSomewhat weak and fractured military; Revolutionary Guards given more power in recent yearsThink and DiscussDo the advantages of powerful unelected officials outweigh the disadvantages?64

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