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

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

Termof 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,principlesare: • 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 serviceNew 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

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)

GlobalPeaceIndex

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

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 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

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.”

CONCLUSIONII. • 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;

Thankyou foryour attention! Any questions ?

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