Comparative Analysis of Administrative Law Regulations in Public Administration
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Prof. dr. habil.
István Hoffman
P
rofessor
(ELTE ÁJK), Professor of University (UMCS WPiA)i.hoffman@poczta.umcs.lublin.pl
Block seminar
Introduction
Methods of legal comparison
The first question: What is
Love
Law? (1)
The first question: What is Law? (2)
•
The different approaches
•
Postivism (Hart)
•
Monism – Dualism (for example:
ius naturale – ius positivum)
– Pluralism
•
Different approaches of pluralism
Pluralism in Roman Law (Samuel, 2019, 144,
after D.1.1.1.)
Modern pluralism (Samuel, 2019, 144)
Challenges of Comparison
•
Law and Language
expression, translation (distortion)
•
Law and fact (actual and virtual facts)
Levels of comparison
•
Micro (presumption of similarity) and macro (presumption of
difference) approaches
•
Genealogical and analogical comparison
•
Genealogical: influence – specific rules
•
Analogical: institutions
•
Internal and external comparison
Methods of legal comparison (1): main
methods
•
Functional: analysis of the functions of legal rules (social sciences!)
•
Between functionalism and structuralism:
•
Schemes of intelligibility
•
Analysis of schemes
•
Law and the dialectical schemes
•
Structural: analysis of the structure
•
Hermeneutical
Methods of legal comparison (2): Functional
method (1): rule based analysis (Samuel)
Methods of legal comparison (3): Functional
method (2): case based analysis (Samuel)
Methods of legal comparison (4): Structural
method
Comparative Administrative Law
and Comparative Public
Administration
Legal and Administrative Comparison
Introductory remarks
•
Analysis of the public administration:
•
Different approaches
•
Different elements
•
Legal comparison and public administration
•
The main field of the comparative law
•
The evolvement and development of
•
comparative administrative law
•
comparative municipal law
Jurisprudential comparison
•
Different levels of the comparison
•
First level: country studies
•
Second level: comparison of the lega
l institutions
•
Formerly the majority of the books on comparative legal analysis:
country studies
•
Changing methods: see Bogdandy et al. (2014) and Rose-Ackermann
et al. (2017)
Legal systems and administrative law (1)
•
Legal systems (René, Zweigert/Kötz)
•
Common Law
•
Continental
•
French (Latin)
•
German
•
Scandinavian
•
Eastern Central, Eastern and South Eastern European
•
Traditional
•
(Formerly: Socialist)
Tiers of legal comparison of the different
systems (1)
•
Legal culture (after Kuhlmann & Wollmann) – based on traditional
comparative law approach
•
Common Law
•
Roman – French
•
Roman – German
•
Roman – Scandinavian
•
Rule of Law (Rechtsstaat) vs. Public Interest
•
Procedural models
•
Common Law
•
French
•
German
Tiers of legal comparison of the different
systems (2)
•
Constitutional model
•
Legal regulation on form of government)
•
Presidential
•
Semi-Presidential
•
Parliamentary
•
‚Council of Ministers’
•
Westminster
•
Chancellor
•
Federal or unitary state
•
Federal
•
Unitary
•
Centralised
•
Decentralised
•
Regionalised
Comparative public administration
(comparative governance) (1)
•
Based on the methods of political sceinces, economics and partly
jurisprudential elements
administrative sciences
•
Elements of the analysis (1)
•
Comparative governance
•
Administrative reforms (firstly NPM, form the 2000s post-NPM, Good Governance, NWS
based etc.)
•
Territorial aspects (economies of scale, borders, federalisation, regionalisation,
centralisation, decentralisatiopn, devolution)
•
Financial approaches (fiscal federalisation / decentralisation)
•
Decision making
Comparative public administration
(comparative governance) (2)
•
Elements of analysis (2)
•
Welfare models (Esping Andersen)
•
Scandinavian (aka social democratic)
•
Continental (aka conservative, aka Bismarckian)
•
Southern European
•
Anglo-Saxon (aka liberal)
Constitutional structures
Constitutional structures of the different administrative systems
Major element: form of government
•
Forms of government, based on the legal status of the Head of the State
•
Monarchy
•
Republic
•
Forms of government, based on the the interactions and relationships of
legislation and executive
•
Non-democratic (authoritarian or hybrid):
•
Monarchies: Absolut and Constitutional Monarchy
•
Authoritarian Republic
•
Democratic:
•
Presidential
•
Semi-presidential
•
Parliamentary
Presidential republics
•
Only in Republics (similarity: Constitutional Monarchy)
•
Separation of powers and checks and balances
•
Legislation
•
Executive
•
H
ead of the executive: the Head of the State (personal leadership!)
•
Only legal responsibility to the Legislation: impeachment AND strong veto
rights
•
Transformation: independent agencies
•
Judicial review of the actions of legislations and executive
Parliamentarism (1)
•
Monarchies and republics
•
Common element: government (executive) is
politically
responsible to
the legislation
•
Different types:
•
‚Council of Ministers’
•
Ministers are personally responsible to legislation
•
Prime Minister: ‚primus inter pares’
•
Instability
Parliamentarism (2)
•
Westminster model
•
Only the Prime Minister is personally responsible to legislation
•
Each voting in Parliament can be considered as a vote of confidence
•
‚Destructive’ vote of confidence
•
‚Cabinet’ system
•
Chancellor democracy:
•
Only the Prime Minister is personally responsible to legislation
•
‚Constructive’ vote of confidence
•
Judicial review and constituional courts
Semi-presidential model
•
Between Parliamentarism and Presidential system
•
Head of state is the Head of Government, but there are ‚corporate
governance’: Council of Ministers, with a Prime Minister (and his/her
legal status)
•
Council of Ministers is responsible to
•
Head of the State (President)
•
Legislation (mainly: House of Representatives)
•
Head of State can act widely independently
Territorial division based on the constitutions
(1)
•
Unitary and federel states
•
Traditional concepts
•
Federalism
•
Local government
•
Regionalisation as a phenomena
•
Transformation of the traditional framework:
•
Centralised or organic – decentralised or dual federations
•
Asymmetrical federalism
•
Regionalisation and regionalism
•
Evolvement of hybrid models (?)
Territorial division based on the constitutions
(2)
•
Trends in territorial governance
•
The evolvement of the welfare state and the fiscal federalism
•
Asymmetrical territorial reforms and the ethnic questions
•
Based on the EU: regional development issue
•
Decentralisation as a tool of the share of the powers
•
Inter-municipality
•
Methods of the comparison:
•
Governance
•
Jurisprudential and organisational approach
Administrative independence,
transparency and policy-making
Procedural elements
Transforming environment of administrative
law
•
Trust as a central element of the efficiency of administrative systems
•
Concept of ‚co-creation’
•
The role of resiliency
•
Trust and resiliency in law: procedural solutions:
•
Administrative independence as a professionalisation
•
Accountability and transparency
•
Policy-making:
•
Citizen’s involvement, form
•
Community budgeting
Administrative independence (1)
•
Different levels:
•
Professional independence of the public servants (open recruitment,
professional rules, depoliticisation)
•
Regulatory authorities and independent agencies
•
Professional independence
•
Regulation on open recruitment and exceptions
•
Instructions and contradictions
•
Right to professional view
•
Depoliticisation of civil servants (?)
Administrative independence (2)
•
Regulatory authorities
•
Evolvement (late 19th century, but mainly: after WW2).
•
Regulatory roles:
•
Decisions which have a general element
•
Regulatory powers
•
Soft law documents
•
Independent agencies
•
Evolvement
answer to the Presidential Administration and its further evolution
•
Characteristics
•
Organisational
•
Personal
autonomy
•
Professional
•
Challenges
•
Rule of law and independency
•
Democratic legitimation and independency
Accountability and transparency
•
Accountability and trust: different elements
•
Remedies and judicial review: external control
•
Constituional court
•
Transparency
•
Decision making
•
Citizen’s participation
•
Decions
•
Individual
•
General (regualtions)
•
Accountability
•
External control (within the state): checks and balances
•
Civil control
•
Media (?) (even: social media?) – and its challenges
Comparative analyses of the
central government systems and
bodies
Central government and independent agencies
Different models
•
Classification:
•
Kuhlmann – Wollmann
•
Napoleonic
•
Continental European federal (German – Austrian)
•
Scandinavian
•
Anglo-Saxon
•
Central Eastern and South Eastern European
•
Fazekas:
•
British
•
Northern American (USA)
•
German
•
French
•
Scandinavian
British model (1)
•
UK, but this model is followed by Ireland, Canada, Australia and New Zealand
•
Constitutional background
•
King / Queen in Parliament
•
Ultra vires
principle
•
Parliamentary monarchy (Ireland: republic)
•
Royal prerogatives
•
Royal charter
•
Government and Cabinet
•
Government: wide
•
Cabinet: 20-30 members, members are selected by the PM
•
Role of the PM: responsibility to Parliament, different posts which are held by the PM
•
PMQ: Prime Minister’s Question in Parliament
British model (2)
•
Ministerial departments:
•
Department/Ministry, but there are other bodies which are considered as ministerial
departments (Traesury; Wales Office)
•
Lead by Secretary of State (mainly)
•
Secretary of States (Ministers) are responsible to Parliament: Parliament can review
their regulations
•
Permanent Secretary: professional head of the civil servants of the ministerial
departments
•
Non-ministerial departments, exectuive agencies, non-departmental public
bodies
•
Offices (for example National Health Service) or collegial bodies (Advisory Committee
on Pesticides)
•
They are established mainly by Act of Parliament, but in several cases by royal
charter (for example the British Broadcasting Corporation – BBC)
•
Limited autonomy (some of them: regulatory authorities)
(Northern) American model (1)
•
Based on the United States of America, it is folowed by several Latin American
countries
•
Presidential system:
•
The Head of the State and the Head of the (federal) administration is the
president
•
Wide powers and duties of the president
•
Executive Office of the President : the staff of the president (‚West Wing’)
•
Cabinet: mmbers: Secretaries, but there are another positions Department of Justice:
Attorney General; Secretary of State as a secretary responsible for foreign affairs)
•
Appointed by the president (but mainly approval of Senate is required)
•
Departments
•
Democratic legimitation: strong legislative control of buraucracy (personal
questions, review of regulations)
powers and duties of the Congress, but these
powers can be delegated (delegation of powers)
(Northern) American model (2)
•
Agencies
•
Different names (Office, Bureau, Commission, Administration)
•
Regulatory authorities
•
Independent regulatory agencies
•
Established by the Congress, leaders are appointed (mainly) by the President
(in several cases approval of Senate is required)
German model (1)
•
Model is followed by the V4 countries and several Southern European
countries (from the 90s, especially Italy, Spain, partly Portugal and
Greece)
•
Parliamentary system
•
Head of State (in Germany and Austria:
Bundespräsident)
is
theoretically the Head of the Administration, but their role is mainly
ceremonial:
•
Appointments and recommendations (chancelor is recommended by the BP?
but is elected by the Bundestag in Germany – in Austria: chancellor is
appointed by the BP).
•
Countersign of the chancellor or miniszters are required for the majority of
their actions.
German model (2)
•
Government:
Bundesregierung
(Austria and Germany)
•
Three principles:
•
Chancellor principle
(Kanzlerprinzip):
•
the general politics of the government is defined by the chancellor and
•
he or she is only responsible to legislation (‚constructive vote on confidence
the new
chancellor shall be named by the motion of non-confidence)
•
The role of the Office of the Chancellor (in Germany:
Bundeskanzleramt)
•
Lead by a minister
•
Responsible for the intra-governmental coordination and for the inter-governmental
relations
•
Departmental principle
(Ressortprinzip)
•
There are ministries within the government which are lead by ministers and which are
responsibles for their sectors
•
Collegiate principle
(Kollegialprinzip)
•
Government is a collegiate body, however the chancellor has pominent role
German model (3)
•
Ministries
•
Sectoral division
•
Dual structure:
•
Political leadership: Minister and Political Secretary of State
(politischer
Staatsskeretär(in))
politically sensitive and changing
•
Professional leadership: Administrative Secretary of State
(beamteter Staatssekretär(in))
permanent and stable (?) – but political loyality is important
•
Non-ministerial departments and agencies
(Oberbehörde)
•
Mainly directed by a ministry
•
Established mainly by Act of Parliaments
French model (1)
•
Followed: by France and the Francophone countries (in Europe:
Eastern European countries, Romania, partly by several West Balkan
countries)
•
5th Republic (de Gaulle)
•
Semi-presidential model
•
Executive is lead by the President
(Président)
and by the Government
(Gouvernement)
– which has a Prime Ministre
(Premier ministre)
•
President: Head of State, wide responsibilites in the field of defense
policy and foreign policy (the structure was developed by the
Gaulle…) – but: wide range of requirement of ministerial countersign
French model (2)
•
Government:
•
It is led mainly by the President (it is called:
Conseil des ministres)
but it can be led by
the Prime Minister (it is called:
Conseil de Cabinet)
•
Members: Prime Minister and Ministers (they cannot be members of the National
Assembly)
•
Government is responsible to the National Assembly and to the President
•
(Formerly
co-habitation
was an opportunity – different épolitical views of President
and Prime Minister – but now the termins of National Assembly and President has
been harmonised)
•
Wide range of executive regulatory powers (decrees and ordonnances)
•
Prime Minister
•
Prominent role in the Government
•
Regulatory powers
•
Office (responsible for governmental coordination):
Secrétariat Général du
Gouvernenmant
French model (3)
•
Ministers and ministries
•
Different positions
•
(Ministre d’État)
•
Ministre
since 2019: only ministers
•
(Ministre délégué)
•
Dual structure:
•
Political component: Miniszter, Cabinet of the Ministre, Secretary of State
•
Professional component: lead by Secretary General (Director Generals and Directors)
•
A special body:
Conseil d’État
•
A special administrative body with wide range of autonomy
•
Formally is led by the Prime Minister, but actually led by the Vice-President of the
Conseil
d’État
•
Responsible for the judicial review of the administrative decisions and regulations
•
Advisory body to the President and to the Government
Scandinavian (Nordic) model
•
Mainly: parliamentary monarchies (except: Finland and Iceland)
•
King/Queen: in theory the Head of Executive, but practically only ceremonial roles
•
Executive is led by the Government
•
Council of State can be established (in Denmark: St
åtsradet, which members are wider,
for example the Crown Prince is a Member, as well)
•
Government is responsible to the legislation – but appointment cvan be different (the
Government can control the decisions of the King/Queen)
•
Prominent role of the PM
•
Dual structure of ministries (political and professional) – in Sweden:more than one
minister in one ministry (but there is a ‚main’ one, the others are responsible for sub-
sectors within the ministry)
•
Prominent role of agencies
•
In Denmark: directed by the ministries
•
In Sweden: autonomy and wide powers and duties
Comparative analysis of the
police administration
The interpretation of policing
•
Different approaches
•
Common element: defense of the public order
•
French approach:
ordre publique
and its elements
•
German concept of
Polizei
•
Anglo-Saxon countries: police
„to protect and serve”
The beginning: medieval ages
•
Feudal policing
•
The tasks of the municipalities
•
State polices: absolute monarchies
Municipal police
•
Anglo-Saxon countries
•
G
eneral police tasks are performed by municipal bodies
•
State polices and and municipal polices
Mixed model (French approach)
•
Nationalisation of the local police forces
•
State polices:
Police Nationale
and
Gendarmerie Nationale (police
juricaires)
•
After 1983: local police forces
can be
established
(police
administratifs)
•
Local police forces: under the direction of the
maire
(state and
municipal task)
•
Similar model is followed by the Southern European countries:
•
Italy:
Carabinieri – Polizia di Stato – Polizia municipale
•
Portugal:
Guarda Nacional Republicana – Polícia Judiciária – Polícia de
Seguran
ça Pública – Polícia Municipal
Number of the local policie authorities in
France in 2013 (after Donelly and Horváth)
Number of the officers of the French police
authorities in 2013
(after Donnelly)
State police
•
German example: police is performed by state (and federal) agencies
•
M
unicipalities have duties only
:
•
fire and rescue
.
Federal and regional states
The subnational tiers of administration
Main models of federalism (examples)
Blurred boundaries?
•
Centralised federations and regionalised states
•
The phenomena of
•
(welfare) centralisation
•
resymmetrisation
Models of the regions
•
Municipal model
•
France (and the transofrmation of the French model)
•
Municipal regionalism in CEE: Poland
•
Regionalised model
•
The ‚una e indisibile’ Italy and its regions (multiethnicity and traditions)
•
Serbia: the case of Vojvodina (multiethnical region)
•
Inter-municipal model
•
from agencies to inter-municipal associations (development issue and regionalism in
Ireland and Portugal
•
Urban governance (?)
•
Quasi regions and the development issue
The hybridity and its borders. Failed reforms
•
Hybrid soultions:
•
The quasi-federalism in Spain and the case of Catalonia
•
The transformation of the United Kingdom: back to the real federalism?
•
Failed reforms:
•
Lack of the traditions
Hungary
•
Multhiethnicity as problem
Romania and Slovakia
Territorial agencies of central
government
A comparative analysis of the different soultions
Comparative analysis
•
Classification of territorial agencies of central government
•
Based on the legal status
major question: has been a
general agency established by the national regulation
•
Main models:
•
Sectoral deconcentration (a general agency has not
been established)
•
Prefect model
•
Mixed model
Models of territorial agencies of central government
Anglo-Saxon
Sectoral
agencies
French :
Prefecture +
Mixed:
„Prefecture” (but
narrow
compoetences)
Dep
ts.
Ter.
Dept
s.
Ter.
Dept
s.
Ter.
Dep
ts.
Ter.
Government
Prefecture
Government
Germany –
in several
provinces: county self-
governments in delegated
powers
Sectoral deconcentration
•
Only sectoral territorial agencies
•
United Kingdom (however in the UK from 1994 to 2010
a mixed model – Government Offices for the English
Regions)
•
Differentiated status and area of competence
•
coordination: central level
•
USA: similar solutions in the state administrations
•
Several German provinces: county self-governments in
delegated powers
French model (prefect) (1)
•
Napoleonic model: prefect is responsible for the
whole territorial administration (administrative
guardianship over the local governments)
•
Based on the centralised Napoleonic French State
•
Characteristics:
•
Political leadership
•
Sectoral territorial agencies are directed or supervised by
the prefect
•
The legal supervision of the local governments belongs to
the responsibilites of the prefect
French model (2)
•
France:
•
Two-tier territorial agency system (regions and
counties –
départements)
•
Prefect and vice prefect (dual role of the vice
prefect: vice prefect in
départements
and in
arrondissements)
•
French model is followed by: Italy, Belgium, Romania,
Norway, Sweden, several German provinces, Hungary,
Poland (? – Poland is between French and mixed model)
Mixed model
•
Limited powers and duties of the general territorial
agency (coordination of the tasks of the territorial
agencies)
•
Originally: in Germany: Regierungspräsidium – now only
in Bavaria and in Hessen
•
Followed by: Denmark (formerly by Hungary and Poland,
in Poland: the prominent role of the wojewoda is merely
a prefectorial model)
Comparative municipal law
Local governments in the administrative systems
Anglo-Saxon model
•
Conmstitutional status: based on the
ultra vires
principle
•
Based on the English concept of King/Queen in Parliament
competences and legal status of the local governments as
administrative bodies are defined by the Act of Parliament
•
The end of
ultra vires?
•
UK: decisions of the High Courts, and after 2011: Localism Act 2011
general powers of local governments (?)
•
US: Dillon pronciple, home rule and municipal home rule
•
Post-Soviet Member States
•
Task
s
of the municipalities:
a monist system
•
Administration
•
Traditionally: based on the strong competences of the local
councils and on the municipal cabinets (UK)
•
Traditional system of the US: mayor – clerk – council
•
Transformation of the traditional models:
•
USA: strong mayor form, council-manager form
•
UK: directly elected mayor or head of the cabinet
•
Inter-municipal cooperation: it is known, but has
limited role in the system
•
Unified municipal asset
•
Legally wide autonomy in finances, practically: very
limited financial autonomy
•
Decisions of municipalities are reviewed by the courts
(and partly by tribunals)
Continental – French model
•
Constitutional background: general powers of
municipalities, but legislation have wide
responsibilites to define it
•
Municipal tasks: dualistic system
•
Delegated state (central administration) tasks (mainly
the responsibilities of the mayors)
•
Municipal tasks
•
Mandatory tasks
•
Voluntary tasks
•
In several sectoral rules: alternative tasks (mandatory tasks of the
larger municipalities can be fulfilled by smaller municipalities or by
inter-municipal associations)
•
Administration :
•
Based on the strong mayor (council is relatively weak – in
several countries and provinces – for example in Portugal,
Hessen – magistrates)
•
Inter-municipal associations:
•
Prominent role and differentiated regulation on them
•
Municipal asset:
•
Shared municipal asset
•
Municipal finances
•
Strong influence of the central administration
•
Formerly: block grants (now: wide range of
administrative contracts)
•
Local and central government
•
Originally: ‚administrative guardianship’ (‚
tutélage
administratif’)
, now: limited control of the legality of
the municipal decisions
Continental – German model
•
Constitutional background: general powers of
municiplaities (general clause)
•
‚Within the Law’ (‚im Rahmen der Gesetze’)
•
Constituinal defence of the municipal autonomy (by Federal
Constitutional Court)
not a basic law, but defence of the
competences (Kommunalvergfassungsbeschwerde)
(see case
Rastede)
•
Municipal tasks : dual system
•
Delegated state tasks
professional supervision (Fachaufsicht)
of the state administration
•
Municipal tasks
legal supervision (Rechtsaufsicht)
•
Mandatory tasks
•
Voluntary tasks
•
In several sectoral rules: alternative tasks (mandatory tasks
of the larger municipalities can be fulfilled by smaller
municipalities or by inter-municipal associations)
•
Administration: diverse systems
•
Strong council and magistarte as a collegial body
•
South German council model (based on the prominent role
of the mayor)
•
Northern German council model (shared administration:
professional and political and personal and collegiate
leadership)
•
Inter-municipal associations:
•
Prominent role
•
Both mandatory and voluntary types
•
Diverse and differentiated system: depends on tasks,
members etc.
•
Asset:
shared municipal asset
•
Finance:
•
Prominent role of state subsidies
•
Transfered taxes (central taxes collected by the
municipalities)
•
Municipal credit and limitations on it (regulations on
municipal bankruptcy)
•
State and local government
•
Supervision:
•
Legal
•
Professional
•
Local / regional governments
•
The concept of ‚cooperative supervision’
Continental – Scandinavian model
•
Administration is based on the prominent role of
municipal committees
•
Radical merge of municipalities
•
From the 2010s: inter-municipal associations
•
Wide range of municipal tasks BUT strong central
regulations on the quality of municipal services
(limited autonomy in the field of local decisions on
municipal services)
Tiers of the municipal administration
•
Different types of local and regional municipalities
•
Number of tiers in European countries :
•
One-tier (ministates; federal states with small federal units – Switzerland,
Australia; unified one-tier system: West-Balkan /Slovenia, Serbia/ and
Scotland)
•
Two-tier: local and regional (territorial) tier
•
Three-tier systems (regional entitites: local – lower middle – regional, for
example: France, Italy, Spain, Poland)
Tools against municipal fragmentation
•
Merge of municipalities
•
Radical in Scandinavian countries
•
Moderate: Belgium and South Germany (with strong regional tier)
•
Fragmented local (1st tier) municipalities with strong regional (lower
middle tier) municipalities (France, Italy)
•
Inter-municipal solutions
•
Mandatory
•
Voluntary with central subsidies
•
Town-centered administration (Czechia and partly Hungary)
Recentralisation
•
After 2008: recentralisation in Europe
•
Forms of recentralisation:
•
Nationalisation of public services (former municipal tasks): especially health
care, social care, partly public education (very radical recentralisation:
Hungary after 2011)
•
Regulatory centralisation: legislative and regulatory transformations by which
the municipal autonomy in local decisions is restricted (for example: detailed
regulation on the quality of public services in Scandinavia)
•
Reconcentration:
•
Within the municipal system
•
Merge of municipalities
•
Encouragement of inter-municipal associations
An example: Recentralisation in Europe and
in Hungary (Eurostat, 2019)
Public service systems
The main models of the employment of public servants
Spoils and career system (Fazekas, 2019)
This block seminar delves into the realm of administrative law regulations, exploring topics such as the concept of Love Law, different legal approaches, pluralism in Roman law, modern pluralism, challenges of comparison, levels of comparison, and methods of legal comparison. The discussion includes an analysis of functional and structural methods, genealogical and analogical comparison, and internal and external comparison in the context of public administration.
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Presentation Transcript
I INTRODUCTION NTRODUCTION TO A ADMINISTRATIVE DMINISTRATIVE L LAW R REGULATIONS EGULATIONS ON THE THE P PUBLIC TO C COMPARATIVE OMPARATIVE AW P PART ART I I L LEGAL ON THE THE O ORGANISATION RGANISATION OF UBLIC A ADMINISTRATION DMINISTRATION Block seminar EGAL OF Prof. dr. habil. Istv n Hoffman Professor (ELTE JK), Professor of University (UMCS WPiA) i.hoffman@poczta.umcs.lublin.pl
Introduction Methods of legal comparison
The first question: What is Love Law? (1) Politics Law as an autopoetic system Morality Economics Social customs
The first question: What is Law? (2) The different approaches Postivism (Hart) Monism Dualism (for example: ius naturale ius positivum) Pluralism Different approaches of pluralism
Pluralism in Roman Law (Samuel, 2019, 144, after D.1.1.1.) Ius naturale (order in nature) Ius gentium (human reason) Ius civile (positive law)
Modern pluralism (Samuel, 2019, 144) Transnational legal culture regimes State legal culture regimes Internal legal cultures
Challenges of Comparison Law and Language expression, translation (distortion) Law and fact (actual and virtual facts)
Levels of comparison Micro (presumption of similarity) and macro (presumption of difference) approaches Genealogical and analogical comparison Genealogical: influence specific rules Analogical: institutions Internal and external comparison
Methods of legal comparison (1): main methods Functional: analysis of the functions of legal rules (social sciences!) Between functionalism and structuralism: Schemes of intelligibility Analysis of schemes Law and the dialectical schemes Structural: analysis of the structure Hermeneutical
Methods of legal comparison (2): Functional method (1): rule based analysis (Samuel) How is this function fulfilled in foreign system? Rule in home system Function of rule in home system Rule in foreign system Comparative conclusion
Methods of legal comparison (3): Functional method (2): case based analysis (Samuel) How would the facts of this case be decided in foreign system? Examination of similar fact cases in foreign systems Case in home system Comparison of reasoning and policy implications in home and foreign cases Policy implications
Methods of legal comparison (4): Structural method Application of the insider view Identification of the law system External view of foreign system
Comparative Administrative Law and Comparative Public Administration Legal and Administrative Comparison
Introductory remarks Analysis of the public administration: Different approaches Different elements Legal comparison and public administration The main field of the comparative law The evolvement and development of comparative administrative law comparative municipal law
Jurisprudential comparison Different levels of the comparison First level: country studies Second level: comparison of the legal institutions Formerly the majority of the books on comparative legal analysis: country studies Changing methods: see Bogdandy et al. (2014) and Rose-Ackermann et al. (2017)
Legal systems and administrative law (1) Legal systems (Ren , Zweigert/K tz) Common Law Continental French (Latin) German Scandinavian Eastern Central, Eastern and South Eastern European Traditional (Formerly: Socialist)
Tiers of legal comparison of the different systems (1) Legal culture (after Kuhlmann & Wollmann) based on traditional comparative law approach Common Law Roman French Roman German Roman Scandinavian Rule of Law (Rechtsstaat) vs. Public Interest Procedural models Common Law French German
Tiers of legal comparison of the different systems (2) Constitutional model Legal regulation on form of government) Presidential Semi-Presidential Parliamentary Council of Ministers Westminster Chancellor Federal or unitary state Federal Unitary Centralised Decentralised Regionalised
Comparative public administration (comparative governance) (1) Based on the methods of political sceinces, economics and partly jurisprudential elements administrative sciences Elements of the analysis (1) Comparative governance Administrative reforms (firstly NPM, form the 2000s post-NPM, Good Governance, NWS based etc.) Territorial aspects (economies of scale, borders, federalisation, regionalisation, centralisation, decentralisatiopn, devolution) Financial approaches (fiscal federalisation / decentralisation) Decision making
Comparative public administration (comparative governance) (2) Elements of analysis (2) Welfare models (Esping Andersen) Scandinavian (aka social democratic) Continental (aka conservative, aka Bismarckian) Southern European Anglo-Saxon (aka liberal)
Constitutional structures Constitutional structures of the different administrative systems
Major element: form of government Forms of government, based on the legal status of the Head of the State Monarchy Republic Forms of government, based on the the interactions and relationships of legislation and executive Non-democratic (authoritarian or hybrid): Monarchies: Absolut and Constitutional Monarchy Authoritarian Republic Democratic: Presidential Semi-presidential Parliamentary
Presidential republics Only in Republics (similarity: Constitutional Monarchy) Separation of powers and checks and balances Legislation Executive Head of the executive: the Head of the State (personal leadership!) Only legal responsibility to the Legislation: impeachment AND strong veto rights Transformation: independent agencies Judicial review of the actions of legislations and executive
Parliamentarism (1) Monarchies and republics Common element: government (executive) is politically responsible to the legislation Different types: Council of Ministers Ministers are personally responsible to legislation Prime Minister: primus inter pares Instability
Parliamentarism (2) Westminster model Only the Prime Minister is personally responsible to legislation Each voting in Parliament can be considered as a vote of confidence Destructive vote of confidence Cabinet system Chancellor democracy: Only the Prime Minister is personally responsible to legislation Constructive vote of confidence Judicial review and constituional courts
Semi-presidential model Between Parliamentarism and Presidential system Head of state is the Head of Government, but there are corporate governance : Council of Ministers, with a Prime Minister (and his/her legal status) Council of Ministers is responsible to Head of the State (President) Legislation (mainly: House of Representatives) Head of State can act widely independently
Territorial division based on the constitutions (1) Unitary and federel states Traditional concepts Federalism Local government Regionalisation as a phenomena Transformation of the traditional framework: Centralised or organic decentralised or dual federations Asymmetrical federalism Regionalisation and regionalism Evolvement of hybrid models (?)
Territorial division based on the constitutions (2) Trends in territorial governance The evolvement of the welfare state and the fiscal federalism Asymmetrical territorial reforms and the ethnic questions Based on the EU: regional development issue Decentralisation as a tool of the share of the powers Inter-municipality Methods of the comparison: Governance Jurisprudential and organisational approach
Administrative independence, transparency and policy-making Procedural elements
Transforming environment of administrative law Trust as a central element of the efficiency of administrative systems Concept of co-creation The role of resiliency Trust and resiliency in law: procedural solutions: Administrative independence as a professionalisation Accountability and transparency Policy-making: Citizen s involvement, form Community budgeting
Administrative independence (1) Different levels: Professional independence of the public servants (open recruitment, professional rules, depoliticisation) Regulatory authorities and independent agencies Professional independence Regulation on open recruitment and exceptions Instructions and contradictions Right to professional view Depoliticisation of civil servants (?)
Administrative independence (2) Regulatory authorities Evolvement (late 19th century, but mainly: after WW2). Regulatory roles: Decisions which have a general element Regulatory powers Soft law documents Independent agencies Evolvement answer to the Presidential Administration and its further evolution Characteristics Organisational Personal autonomy Professional Challenges Rule of law and independency Democratic legitimation and independency
Accountability and transparency Accountability and trust: different elements Remedies and judicial review: external control Constituional court Transparency Decision making Citizen s participation Decions Individual General (regualtions) Accountability External control (within the state): checks and balances Civil control Media (?) (even: social media?) and its challenges
Comparative analyses of the central government systems and bodies Central government and independent agencies
Different models Classification: Kuhlmann Wollmann Napoleonic Continental European federal (German Austrian) Scandinavian Anglo-Saxon Central Eastern and South Eastern European Fazekas: British Northern American (USA) German French Scandinavian
British model (1) UK, but this model is followed by Ireland, Canada, Australia and New Zealand Constitutional background King / Queen in Parliament Ultra vires principle Parliamentary monarchy (Ireland: republic) Royal prerogatives Royal charter Government and Cabinet Government: wide Cabinet: 20-30 members, members are selected by the PM Role of the PM: responsibility to Parliament, different posts which are held by the PM PMQ: Prime Minister s Question in Parliament
British model (2) Ministerial departments: Department/Ministry, but there are other bodies which are considered as ministerial departments (Traesury; Wales Office) Lead by Secretary of State (mainly) Secretary of States (Ministers) are responsible to Parliament: Parliament can review their regulations Permanent Secretary: professional head of the civil servants of the ministerial departments Non-ministerial departments, exectuive agencies, non-departmental public bodies Offices (for example National Health Service) or collegial bodies (Advisory Committee on Pesticides) They are established mainly by Act of Parliament, but in several cases by royal charter (for example the British Broadcasting Corporation BBC) Limited autonomy (some of them: regulatory authorities)
(Northern) American model (1) Based on the United States of America, it is folowed by several Latin American countries Presidential system: The Head of the State and the Head of the (federal) administration is the president Wide powers and duties of the president Executive Office of the President : the staff of the president ( West Wing ) Cabinet: mmbers: Secretaries, but there are another positions Department of Justice: Attorney General; Secretary of State as a secretary responsible for foreign affairs) Appointed by the president (but mainly approval of Senate is required) Departments Democratic legimitation: strong legislative control of buraucracy (personal questions, review of regulations) powers and duties of the Congress, but these powers can be delegated (delegation of powers)
(Northern) American model (2) Agencies Different names (Office, Bureau, Commission, Administration) Regulatory authorities Independent regulatory agencies Established by the Congress, leaders are appointed (mainly) by the President (in several cases approval of Senate is required)
German model (1) Model is followed by the V4 countries and several Southern European countries (from the 90s, especially Italy, Spain, partly Portugal and Greece) Parliamentary system Head of State (in Germany and Austria: Bundespr sident) is theoretically the Head of the Administration, but their role is mainly ceremonial: Appointments and recommendations (chancelor is recommended by the BP? but is elected by the Bundestag in Germany in Austria: chancellor is appointed by the BP). Countersign of the chancellor or miniszters are required for the majority of their actions.
German model (2) Government: Bundesregierung (Austria and Germany) Three principles: Chancellor principle (Kanzlerprinzip): the general politics of the government is defined by the chancellor and he or she is only responsible to legislation ( constructive vote on confidence the new chancellor shall be named by the motion of non-confidence) The role of the Office of the Chancellor (in Germany: Bundeskanzleramt) Lead by a minister Responsible for the intra-governmental coordination and for the inter-governmental relations Departmental principle (Ressortprinzip) There are ministries within the government which are lead by ministers and which are responsibles for their sectors Collegiate principle (Kollegialprinzip) Government is a collegiate body, however the chancellor has pominent role
German model (3) Ministries Sectoral division Dual structure: Political leadership: Minister and Political Secretary of State (politischer Staatsskeret r(in)) politically sensitive and changing Professional leadership: Administrative Secretary of State (beamteter Staatssekret r(in)) permanent and stable (?) but political loyality is important Non-ministerial departments and agencies (Oberbeh rde) Mainly directed by a ministry Established mainly by Act of Parliaments
French model (1) Followed: by France and the Francophone countries (in Europe: Eastern European countries, Romania, partly by several West Balkan countries) 5th Republic (de Gaulle) Semi-presidential model Executive is lead by the President (Pr sident) and by the Government (Gouvernement) which has a Prime Ministre (Premier ministre) President: Head of State, wide responsibilites in the field of defense policy and foreign policy (the structure was developed by the Gaulle ) but: wide range of requirement of ministerial countersign
French model (2) Government: It is led mainly by the President (it is called: Conseil des ministres) but it can be led by the Prime Minister (it is called: Conseil de Cabinet) Members: Prime Minister and Ministers (they cannot be members of the National Assembly) Government is responsible to the National Assembly and to the President (Formerly co-habitation was an opportunity different political views of President and Prime Minister but now the termins of National Assembly and President has been harmonised) Wide range of executive regulatory powers (decrees and ordonnances) Prime Minister Prominent role in the Government Regulatory powers Office (responsible for governmental coordination): Secr tariat G n ral du Gouvernenmant
French model (3) Ministers and ministries Different positions (Ministre d tat) Ministre (Ministre d l gu ) Dual structure: Political component: Miniszter, Cabinet of the Ministre, Secretary of State Professional component: lead by Secretary General (Director Generals and Directors) A special body: Conseil d tat A special administrative body with wide range of autonomy Formally is led by the Prime Minister, but actually led by the Vice-President of the Conseil d tat Responsible for the judicial review of the administrative decisions and regulations Advisory body to the President and to the Government since 2019: only ministers
Scandinavian (Nordic) model Mainly: parliamentary monarchies (except: Finland and Iceland) King/Queen: in theory the Head of Executive, but practically only ceremonial roles Executive is led by the Government Council of State can be established (in Denmark: St tsradet, which members are wider, for example the Crown Prince is a Member, as well) Government is responsible to the legislation but appointment cvan be different (the Government can control the decisions of the King/Queen) Prominent role of the PM Dual structure of ministries (political and professional) in Sweden:more than one minister in one ministry (but there is a main one, the others are responsible for sub- sectors within the ministry) Prominent role of agencies In Denmark: directed by the ministries In Sweden: autonomy and wide powers and duties
Comparative analysis of the police administration
The interpretation of policing Different approaches Common element: defense of the public order French approach: ordre publique and its elements German concept of Polizei Anglo-Saxon countries: police to protect and serve
The beginning: medieval ages Feudal policing The tasks of the municipalities State polices: absolute monarchies
Municipal police Anglo-Saxon countries General police tasks are performed by municipal bodies State polices and and municipal polices
