201133-introduction-comparative-administrative-law-hoffman-umcs-spring-2020-3-.pptx
- 1. INTRODUCTION TO COMPARATIVE ADMINISTRATIVE LAW PART I – LEGAL REGULATIONS ON THE ORGANISATION OF THE PUBLIC ADMINISTRATION Prof. dr. habil. István Hoffman Professor (ELTE ÁJK), Professor of University (UMCS WPiA) i.hoffman@poczta.umcs.lublin.pl Block seminar
- 2. Introduction Methods of legal comparison
- 3. The first question: What is Love Law? (1) Law as an autopoetic system Politics Economics Social customs Morality
- 4. 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
- 5. 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)
- 6. Modern pluralism (Samuel, 2019, 144) Internal legal cultures State legal culture regimes Transnational legal culture regimes
- 7. Challenges of Comparison • Law and Language expression, translation (distortion) • Law and fact (actual and virtual facts)
- 8. 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
- 9. 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
- 10. Methods of legal comparison (2): Functional method (1): rule based analysis (Samuel) Rule in home system Function of rule in home system How is this function fulfilled in foreign system? Comparative conclusion Rule in foreign system
- 11. Methods of legal comparison (3): Functional method (2): case based analysis (Samuel) Case in home system How would the facts of this case be decided in foreign system? Examination of similar fact cases in foreign systems Policy implications Comparison of reasoning and policy implications in home and foreign cases
- 12. Methods of legal comparison (4): Structural method External view of foreign system Identification of the ‚law’ system Application of the insider view
- 13. Comparative Administrative Law and Comparative Public Administration Legal and Administrative Comparison
- 14. 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
- 15. 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)
- 16. 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)
- 17. 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
- 18. 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
- 19. 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
- 20. 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)
- 21. Constitutional structures Constitutional structures of the different administrative systems
- 22. 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
- 23. 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
- 24. 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
- 25. 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
- 26. 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
- 27. 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 (?)
- 28. 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
- 29. Administrative independence, transparency and policy-making Procedural elements
- 30. 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
- 31. 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 (?)
- 32. 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
- 33. 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
- 34. Comparative analyses of the central government systems and bodies Central government and independent agencies
- 35. 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
- 36. 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
- 37. 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)
- 38. (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)
- 39. (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)
- 40. 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.
- 41. 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
- 42. 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
- 43. 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
- 44. 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
- 45. 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
- 46. 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: Ståtsradet, 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
- 47. Comparative analysis of the police administration
- 48. 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”
- 49. The beginning: medieval ages • Feudal policing • The tasks of the municipalities • State polices: absolute monarchies
- 50. Municipal police • Anglo-Saxon countries • General police tasks are performed by municipal bodies • State polices and and municipal polices
- 51. 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 Segurança Pública – Polícia Municipal
- 52. Number of the local policie authorities in France in 2013 (after Donelly and Horváth) Number of municipalities Number of municipal police bodies 36 559 approx. 3 500
- 53. Number of the officers of the French police authorities in 2013 (after Donnelly) Number of the police officers Police judicaire Police administrative: municipal police Gendarmerie (Gendarmerie Nationale) National Police (Police Nationale) approx. 105 000 approx. 145 000 approx. 21 500
- 54. State police • German example: police is performed by state (and federal) agencies • Municipalities have duties only: • fire and rescue.
- 55. Federal and regional states The subnational tiers of administration
- 56. Main models of federalism (examples) Centralised Decentralised Symmetrical Belgium (resymmetrisation) Austria Germany, USA Asymmetrical Switzerland, Russian Federation (the ‚regions’) Canada
- 57. Blurred boundaries? • Centralised federations and regionalised states • The phenomena of • (welfare) centralisation • resymmetrisation
- 58. 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
- 59. 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
- 60. Territorial agencies of central government A comparative analysis of the different soultions
- 61. 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
- 62. 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
- 63. 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
- 64. 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
- 65. 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)
- 66. 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)
- 67. Comparative municipal law Local governments in the administrative systems
- 68. 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 • Tasks of the municipalities: a monist system
- 69. • 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
- 70. • 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)
- 71. 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)
- 72. • 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
- 73. • 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
- 74. 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)
- 75. • 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.
- 76. • 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’
- 77. 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)
- 78. 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)
- 79. 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)
- 80. 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
- 81. An example: Recentralisation in Europe and in Hungary (Eurostat, 2019) 11.9% 11.6% 11.2% 10.8% 10.7% 12.5% 9.2% 7.8% 6.0% 6.3% 0.0% 2.0% 4.0% 6.0% 8.0% 10.0% 12.0% 14.0% 2010 2012 2014 2016 2017 Municipal expenditures (in % of the GDP) in EU-28 and in Hungary (2010-2017) EU-28 Hungary
- 82. Public service systems The main models of the employment of public servants
- 83. Spoils and career system (Fazekas, 2019) Spoils systems Merit systems Pattern and evolvement USA Armies of the European absolute monarchies Main principle Democratic legitimation, political loyalty Professionalism, merits Characteristics Spoils system stable, predictable career Regulation Public service is regulated by the Labour Code Independent act on the legal status and employment of public servants Beginning of the employment Contract Appointment + oath Tendencies Convergence of the systems.
Editor's Notes
- #73: S