Transcript EUSEC SECURITY - UNI-NKE

Efficient State or State
under the Rule of Law?
11th Lecture
Dr. habil. Maria
BORDAS
National University of Public Services
Budapest, Hungary
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
INTRODUCTION
„We
are free because we live under
civil laws”
(Charles-Luis de Secondat Montesquieu)
(Spirit 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
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 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
Criticizism of EU
European constitutional culture and
democratic traditions
Principle of checks and balances
Venice Commission inquiring on 8 basic
acts
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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Term of the state under the rule of law
Aristotle: "The rule of law is better than that of any individual."
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.
„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
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).
2nd:the 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.
Rule of Law in the World
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”
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
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”
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)
Global Peace Index
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 century:rule 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”
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
Political and legal framework of
efficient state in Hungary
after 2007: the neoliberalism refused
generally;
requirement for a strong
and effective state
which is, taking
emphasis to the interest
of national economy;
2/3 majority
authorization
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 ideology’s
influence has been carried out on many areas;
Taking under political control the economy;
“Central field of power” versus
“dual 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
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….
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
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.”
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;
Thank you for
your attention!