Integrity and legitimacy

Transcription

1 1 Integrity and legitimacy DRAFT COPY ONLY Do not quote or cite without written permission from the author Dr. Frankie Schram Doctor-assistent of the Faculty of Political and Social science of the University of Antwerp Lecturer of the Public Management Institute, K.U.Leuven Secretary of the federal Commission for the Access of Administrative Documents President of the Group of Specialists DH-S-AC of the Council of Europe

2 2 Introduction In the administrative sciences the concept of legitimacy plays an important role. In this paper we will look how the concept of legitimacy has a link with another important concept, the concept of integrity. First of all we have to look what is to be understood under legitimacy and under integrity because both concepts can have a variety of meanings. Afterwards, we can try to look for the relation between the two of them. 1. The concept of legitimacy In normative (political philosophy) and empirically oriented political science the enquiry into the nature of legitimacy has always played an imported place. Political philosophers have already long ago reflected on the conditions under which domination over other people could be called legitimate. The qualification legitimate was granted to structures of governance that have bee established in accordance to certain rules and principles. 1 These rules and principles are the criteria to which a political system must comply to be considered legitimate. Political philosophers have long been looking for criteria to which a political system needs to comply in order to create an obligation for the citizens submitted to that political authority, to obey. 2 In the early 20 th century a second way of thinking about legitimacy has found his way with the rise of empirical social science. One of the most important thinkers of that time, Max Weber, detached legitimacy from its philosophical background and conceptualised it as an empirical social fact. Legitimacy became conceptualised as the phenomenon that people are willing to accept authority on normative grounds, no matter on which specific beliefs this acceptance is grounded. For Weber legitimacy is the phenomenon that a social order enjoys the prestige of being considered binding. 3 He also asserted that authority became rationally legitimised in the 20 th century. Under the conditions of rational argumentation. Prescriptions that are viewed as legitimate, successfully link shared basic norms and ideas to practical rules. Political scientists of today still define legitimacy as the compliance of a political system with the traditional values to which it refers and that guarantees - using the definition of Max Weber - the adherence of the majority of the citizens by their passive tolerance or their active support. In modern literature, legitimacy is not always a clear defined notion and with some authors the legitimacy has more than one meaning where one of them is defined, but not the other one. Especially in studies that deal with the democratic deficit of the European Union and its institutions, the concept of legitimacy has gained a new and richer content. 1.1 The concept of legitimacy according to Rosenthal The starting point according to ROSENTHAL is that in a democratic state of law, a public authority needs legitimacy what means for him had it is accepted by the persons for whom he is governed. 1 J. STEFFEK, The Power of Rational Discourse and the Legitimacy of International Governance, (EUI working papers. Robert Schuman centre, v.00/46), European University Institute, 2000, J.-J. ROUSSEAU, The Social Contract and Discourses, London, Dent, 1963; J. HORTON, Political Obligation, London, The MacMillan Press, J. STEFFEK, o.c.,

3 3 Legitimacy is realising itself on the crossroad of two fundamental principles: the democratic state of law and the efficiency and effectiveness of governing. 4 A rational principle underlies the governing of administrative organisations: it is goal oriented. Administrative organisations are aimed to the realising of the public interest of the citizens. Therefore a democratic, a legitimacy based on a general duty of accountability is needed. Only when an administration complies with those principles, it can acquire the necessary legitimacy and it can be called a administration full of quality. 5 Each of those principles enhances a number of criteria, who when they are combined, enclose a possible tension of norms and expectations. Democracy - responsiveness - participation Legality - in accordance to the law - good administration Quality of administrative acting Performance - goalattainment - management of means Legitimacy societal acceptance of: - politicians and decisions - rules of decisionmaking - fundaments of the political society 1.2 Legitimacy according to Beetham and Lord 6 For BEETHAM and LORD the starting point for any analysis of legitimacy ( ) has to be an acknowledgment of its complexity, and of the full range of factors rules, normative beliefs, actions and procedures that contribute to making political authority rightful. 7 Elaborating on 4 U. ROSENTHAL, A.B. RINGELING, M.A.P. BOVENS, P. t HART, M.J.W. VAN TWIST, Openbaar bestuur. Beleid, organisatie en politiek, Alphen aan den Rijn, Samson H.D. Tjeenk Willink, , U. ROSENTHAL, A.B. RINGELING, M.A.P. BOVENS, R. t HART, M.J.W. VAN TWIST, o.c., D. BEETHAM en Ch. LORD, Legitimacy and the EU. Londen, Longman, 1998; D. BEETHAM en C. LORD, 'Legitimacy and the European Union', in NENTWICH, M. (ed.), Political Theory and the European Union. Legitimacy, constitutional choice and citizenship (15-33), Londen, New York: Routledge, 1998, D. BEETHAM en C. LORD, Legitimacy and the European Union, in M. NENTWICH (ed.), Political Theory and the European Union. Legitimacy, constitutional choice and citizenship (15-33), London, New York: Routledge, 1998, 5.

4 4 these concepts, the degree of legitimacy can be measured by the extent to which a political system meets three criteria. These criteria are legality, normative justifiability and legitimation. A political system fulfils the condition of legality if the political authority is acquired and exercised according to established rules. Normative justifiability refers to a political context in which the rules are justifiable according to socially accepted beliefs about what is the rightful source of authority, and the proper ends and standards of government. 8 For a political system to be called normatively justifiable, its citizens must accept that different categories of rules are imposed on them by different levels of authority and that they feel that these levels conduct their policies according to the right ends and procedures. Finally, legitimation means that the positions of authority have to be confirmed by an explicit approval and confirmation of its subordinates and recognised by other legitimate authorities. The first of these levels is that of rules; the second that of justifications grounded in beliefs; the third that of acts of consent of recognition. 9 Next to the three criteria, BEETHAM and LORD make a distinction between three dimensions of legitimacy. These dimensions are democracy, identification and performance. Democracy refers to structural aspects such as the representation of the population and the separation of powers; identification points to the popular acceptance of the project of the political authority that governs (the recognition by the people of the exertion of power) and to issues such as identity and citizenship. The last dimension is performance, defined as the relation of the political system to the ends or purposes it should serve and the effectiveness of its decisionmaking procedures. BEETHAM and LORD have made the application of the three criteria on a liberal democracy. This gives the following scheme: Legality Constitutional rule of law Normative justifiability Rihtful source of Political authority Popular sovereignty proper ends and standards of government right protection Definition of the people criteria for electoral performance criteria Identity, inclusion authorisation, representation procedures to remove failure + accountability Legitimation Consent subsumed in electoral authorisation; Recognition by other legitimate authorities 8 D. BEETHEM en C. LORD, o.c., 4. 9 D. BEETHAM and C. LORD, Legitimacy and the European Union, London/New York, Longman, 1998, 4.

5 5 Finally, BEETHAM and LORD distinguish between three models of legitimacy. Firstly, the legitimacy model of the nation state, defined as direct legitimacy and based upon the liberal democratic conception of a nation state with two typical foundations: the recognition of the people as the source of political authority and the protection of rights in a large sense, as aim of the government. The second is the legitimacy model of an international organisation, defined as indirect legitimacy. Typical to the legitimacy of international institutions is that they refer more to individual states than to individual citizens. The legitimacy of international institutions emanates from the principle that the authority (of the international organisation) is legitimised when this is acknowledged and confirmed by other legitimate authorities (member states). Besides the direct and indirect model of legitimacy, BEETHAM and LORD define the model of technocratic legitimacy, with two typical features. Firstly, there is a focus on governmental performance. Secondly, the technocratic legitimacy assumes that public good is better realised by professionals that can not be subjected to shortcomings and disturbances of democratic and especially electoral politics. The source of justification of the authority lays in the special knowledge and expertise that officials have and that can be validated by a broader legitimacy of technological, professional and scientific knowledge within modern society The integration model of legitimacy according to P. Bursens 11 BURSSENS has tried to integrate the criteria, the models and the dimensions of legitimacy. His integration model reflects the complexity of the legitimacy concept, both in terms of analysis and in terms of political consequences. Because of this complexity, not only the academic analysis, but also the legitimacy enhancing strategies should be complex. With his scheme, he draws the attention to the fact that legitimacy has go a different nature depending on the political system: nation states differ in many aspects from international organisations and therefore need to correspond to different kinds of legitimacy. In both national and international systems, legitimacy is characterised by structural (democracy) and cultural (identification) aspects. Since the systems are so different, also the dimensions are different. Since the systems are so different, also the dimensions are different. 10. BEETHAM and C. LORD, Legitimacy and the European Union, London/New York, Longman, 1998, K. DE JONGHE en P. BURSENS, How to Increase Legitimacy in the European Union? The Concept of Multilevel Governance Legitimacy, (PSW-paper 2003/4), Antwerpen, 2003, 25 p.

6 6 1.4 The place of legitimacy in the scheme for analysing policy of Ringeling and Hemerijck RINGELING and HEMERIJCK have worked out a scheme for analysing policy that is very relevant for analysing legitimacy. Both authors are working further on the ideas of Rosenthal but they place them in a more systematic way. Therefore RINGELING and HEMERIJCK are making a difference between two perspectives. On the one hand there is the perspective of acting, on the other hand the perspective of valuation. The perspective of acting is related with the empirical results of policy in terms of performance. But policy research needs to be also a systematic and critical research of norms and values that lies behind certain perceptions of problems and possible solutions. That s the perspective of valuation. Research of politics is also connected to two kinds of logics, the logic of consequences and the logic of appropriateness. 12 The logic of consequences is aimed at goal attainment. Rational acting is acting for realizing certain aims with the most suited means and methods. For attaining a goal realizing policy choice, not only the alternative has to been known, but also the expected results of the different alternative choices have to be clear. Knowledge of alternatives and their relative costs make it for the decision maker possible to make a hierarchical classification of policy options on the ground of goal attainment of own preferences. The logic of appropriateness needs a whole other motivation. Actors are lead by what is appropriate and acceptable in a given situation. Policy choices are strong influenced by social routines and standard operating procedures. The policy makers need these to make multimeaning policy problems. Especially the vision of the actors of their own role and de way they evaluate a situation, determines in an important way what they see as an appropriate action. Preferences are not preset, but can change in function of the setting in which the actor is sitting and he role who he in a given situation for himself sees as the most meaningful. 12 Based on the ideas of March and Olsen: J.G. MARCH en J.P. OLSEN, Rediscovering Institutions: the Organizational Basis of Politcis, New York, Free Press, 1989.

7 7 Both points of view lead the authors to four fundamental questions about policy whereby the starting point is that legitimated policy has to fulfil four criteria: policy has to be appropriate, has to be attainable and executable, legitimate and normative acceptable. Those four questions form a frame of reference within policy processes and policy instruments can be analysed. 13 Logic/perspectives Perspective of acting Perspective of valuation Logic of consequences Effectiveness Legality logic of appropriateness Attainability Legitimacy (narrow meaning) 2. The concept of integrity We meet the same problems when we want to speak about integrity. From a clearly defined concept, it has become a very broad and vague concept. From not susceptible to bribery to acting on moral grounds or action as a result of a moral judgement, integrity has changed completely: a negative connotation has taken place for a positive connotation where reflection has an important place. A difference must be made between the integrity of the civil servants and the integrity of each public administration and of the public sector as such. This does raise certain questions: in what aspect can the integrity of the loss of integrity influence the integrity of a certain public administration and the integrity of the public sector as such? This could also be said about the relations of the other elements. Also a difference must be made between the integrity of the political elite and the integrity of the administration. What does a loss of integrity of the public mean for the legitimacy of the whole public sector? What does a loss of integrity of the administration mean for the legitimacy of the political system? 3. Defining a relation between legitimacy and integrity In a democratic society according to the law of state, power founds his legitimacy within the integrity of the administrative system. 14 This is more than acting according to the law and more then prevent that a function is not become in discredit. The values and moral norms within public administration can not be separated from the values and moral norms living in society, but do not necessarily fall together. Beneath the political rationality, the legal rationality, the economic rationality and the scientific rationality, also the ethical rationality limits political and administrative acting. 15 It is not enough that governance is democratic, that governance is according to the state of law, that policy is effective and efficient, that policy is appropriate and 13 V. BEKKERS en A. RINGELING, Vervlochten onderzoek: balans en perspectief, in V. BEKKERS en A. RINGELING, Vragen over beleid. Perspectieven op waardering, Utrecht, Uitgeverij Lemma BV, 2003, J.H.J. VAN DEN HEUVEL, De morele dimensie in politiek en openbaar bestuur, in J.H.J. VAN DEN HEUVEL (ed.), Ethiek in politiek en openbaar bestuur, Utrecht, Uitgeverij Lemma, 1995, I.Th.M. SNELLEN, Boeiend en geboeid. Ambities en ambivalenties in de bestuurskunde, Alphen aan den Rijn, Samsom Tjeenk Willink, 1987.

8 8 that policy is in accordance with desires, needs, feelings, expectations, values and norms living in society. Under the state of law or the rule of law several things are covered: - the principal of legality - constitutional rights and duties - judicial review - general principles of good administration - a reasonable decision-making according to legal procedures - legal protection 16 The state of law is a very complex notion as BOVENS has shown. 17 There are four levels to distinguish: - the basic idea: protection against arbitrariness and eliminate concentration of power - legal principles - organisation of the state - Behaviours, rules and legal decisions They are all aspects of the legal system, they follow a legal rationality but the legal principles and the basic idea found their origin in ethics. Also democracy is a very complex notion. L. Diamond how studied the different contents that are given to democracy made clear that there is a lack of consensus on the meaning of democracy. 18 Contrary to some authors 19, I believe that the rule of law is directly connected to the notion democracy. The state of law does not need to be a democracy and a democracy does not need to be a state of law. In a western state the two are indeed very close connected. From a scientific point of view it is very important to separate them, because the values they incorporate are not the same. Integrity has to do with the ethical rationality: political and administrative acting had to be good according to moral principles. The legal system does not give all answers to a civil servant, to an administration, how to act in a given concrete situation. The degree of integrity provides also the manner the legal system has a certain flexibility. Integrity is an other dimension than effectiveness and efficiency. 16 B. DORBECK-JUNG, Towards Refexive Responsibility. New Ethics for Public Administration, in A. HONDEGHEM and EUROPEAN GROUP OF PUBLIC ADMINISTRATION, Ethics and Accountability in a context of Governance and New Public Management. EGPA Yearbook, Amsterdam/Berlin/Oxford, IOS Press, 1998, WETENSCHAPPELIJKE RAAD VOOR HET WETENSCHAPSBELEID, De toekomst van de nationale rechtsstaat, (Rapporten aan de regering 63), Den Haag, Sdu-Uitgevers 2000, Cited in: T. VANHANEN, Democratization. A comparative analysis of 170 Countries, Londen en New York, Routledge, 2003, R. MAES, Overheidsrecht en overheidsmanagement. Complementair of tegenstrijdig?, in R. MAES (ed.), Openbaar bestuur: visie, kennis en kunde. Bestuurlijke vernieuwingen, bestuurlijke organisatie en bestuurskunde, Brugge, Vanden Broele, 6.

9 9 Performance Economy Efficiency Effectiveness Purposiveness Coordination Client orientation Logic of consequences An integer democratic state of law Integrity State of law Legality Democracy Responsivity Transparency Participation Accountability perspective of acting Great quality of administrative action perspective of valuation Attainable and executable Logic of appropriateness Agreement with societal desires, needs, feelings, expectations, values and norms Acceptance of - authority and decisions - rules of the game - foundation of the political order The relation between the different components within a democratic state of law that is also considered integer is a complex one. The values and norms of a democracy and a state of law could found their moral justification in the values and norms living in the society and in the values and norms living within the administration. The values and norms living in society and the values and norms living in the administration that are the basic for integrity, do not necessarily fall together. Also values and norms need not to be morally acceptable. Integrity needs and guarantees a certain level of moral quality.

10 10 References: ARNULL, A. and WINCOTT, D., (ed.). Accountability and Legitimacy in the European Union, Oxford, OUP, BANCHOFF, T. and SMITH, M.P. (ed.). Legitimacy in the European Union, London, Routledge, BARKER, R., Political Legitimacy and the State, Oxford, Clarendon Press, BEETHAM, D. and LORD, Ch., Legitimacy and the EU, London, Longman, BEKKERS, V. and A. RINGELING, Vragen over beleid. Perspectieven op waardering, Utrecht, Lemma, BOVENS, M., The Integrity of the Managerial States, Journal of Contingencies and Crisis Mangement, 1996, Vol. 4, No. 3, pp BURSSENS, P. and BAETENS, M., The Search for Legitimacy in the European Union: How to Escape from the Mass Media Paradox paper DE JONGHE, K. en BURSSENS, P., How to Increase Legitimacy in the European Union? The Concept of Multi-level Governance Legitimacy, (PSW-paper 2003/4), University of Antwerp, OLSEN, J.P., What is a Legitimate Role for Euro-citizens?, Comparative European Politics 2003 (1), ROSENTHAL, U., RINGELING, A.B., BOVENS, M.A.P., t HART P., VAN TWIST, M.J.W., Openbaar bestuur. Beleid, organisatie en politiek, Alphen aan den Rijn, Samson H.D. Tjeenk Willink, WEILER, J. Legitimacy and democracy of Union governance, in EDWARDS, G. en PIJPERS, A. (eds.), The politics of European Union Treaty Reform, Londen, Pinter, 1997.