European Perspectives for Public Administration: Seminar The many Disciplines of Public Administration

Transcription

1 European Perspectives for Public Administration: Seminar The many Disciplines of Public Administration September 2017 University of Potsdam (Potsdam, Germany)

2 Session 4: PA and Law Presentation Martin Burgi

3 UNIVERSITY OF POTSDAM THE MANY DISCIPLINES OF PUBLIC ADMINISTRATION EUROPEAN PERSPECTIVES FOR PUBLIC ADMINISTRATION (EPPA) SEMINAR Public Administration and Law Potsdam, 15 September 2017

4 Public Administration (PA) and Law Introduction I. Golden History II. Silent Present III. Towards a Brighter Future? 2

5 Introduction Administrative Law Science (ALS Verwaltungsrechtswissenschaft ) is basically a dogmatic discipline, concerned with describing, developing and advancing the inner system of terms, institutions, principles and rules of administrative law; these elements form an essential part of positive law, irrespective of their codification. Despite its strictly legal point of view, ALS needs to be able and willing to take account of the empirical contexts of the law and of other disciplines conducting research on these contexts. My focus will be on German domestic administrative law, the law of European administration as well as the Europeanization of domestic laws and the interplay ( Verbund ) of administrations. 3

6 I. Golden History 1960s and 1970s: Along with general changes within society and growing scepticism towards traditional paradigms and concepts, both legal practice and education as well as legislators (particularly in Germany) were increasingly interested in the empirical reality of the law and hence became very interested in contacts with social sciences. From Administrative Studies ( Verwaltungslehre ) to Administrative Science ( Verwaltungswissenschaft ): PA became a forum for different disciplines, including administrative law, promoted by contacts with more advanced US-American research on PA, organizational and management theory in the early 1960s, 4

7 the foundation and consolidation of specific institutions committed to research on PA and ALS such as the Seminar für Verwaltungslehre in Hamburg (1962) and the Research Institute for Public Administration at the (former) Hochschule für Verwaltungswissenschaften in Speyer (1976) and the establishment of specific publications on both PA and ALS such as the renowned journal Die Verwaltung. Journal for Administrative Law and Administrative Science (1968), founded by Ernst Forsthoff. 5

8 Late 1980s and early 1990s: With major political and social changes (European integration, globalization of the economy, German reunification, liberalization and privatization), a new tide of reform spreaded across Europe and Germany, calling for a more realistic, impact oriented, task- and purpose-based approach towards administrative law, including stronger consideration of social sciences and economics. More Economic Approach : ALS is faced with economic concepts, including New Public Management (NPM), based on earlier ideas of New Institutional Economics (NIE) (e.g. the principal-agent theory), stronger output orientation (e.g. through controlling) and outsourcing strategies (e.g. public-private-partnerships), 6

9 the Neues Steuerungsmodell (NSM), a more concrete NPM concept developed in 1993 by the Kommunale Gemeinschaftsstelle für Verwaltungsvereinfachung (KGSt) of the German municipalities, based on the administrative reform conducted in the city of Tilburg, Netherlands : The reform efforts were systematically observed and discussed by German administrative law scholars on ten conferences on the Reform of Administrative Law ( ). In three volumes edited by three protagonists (Hoffmann- Riem, Schmidt-Aßmann, Voßkuhle) of these scholars on the foundations of administrative law ( Grundlagen des Verwaltungsrechts, 2006), the Neue Verwaltungsrechtswissenschaft ( New Administrative Law Science NALS) was supposed to be developed. 7

10 II. Silent Present Despite these efforts and proclamations, contemporary ALS publications hardly incorporate research on PA (and vice versa). This is illustrated, for example, by the volumes of Grundlagen des Verwaltungsrechts, which largely refer to sources from ALS instead of PA, and by Wolfgang Seibel s recent publication Verwaltung verstehen ( Understanding Administration ), who merely cites from Hartmut Maurer s Allgemeines Verwaltungsrecht, a traditional text book on German administrative law. Today, only few ALS scholars are interested in PA, and only few substantial cooperations between ALS and PA are conducted. 8

11 III. Towards a Brighter Future? 1. Promising Developments There are indications for more openness of ALS towards interdisciplinarity: In the past few years, a two-digit number of books and volumes (with more than 100 pages each) with theoretical reflections on the scientific character of jurisprudence have been published. This illustrated that the theoretical groundwork of interdisciplinary cooperation between ALS and PA has already been laid. PA is a research plattform (Martin Burgi) for interdisciplinary discourse between ALS, PA and other disciplines with a view on public administration. 9

12 2. Focus on Concrete Issues instead of Grand Formulas For cooperative research, ALS and PA scholars should focus on concrete issues (e.g. The role of municipal administrations in developing municipal policies or Forms of public participation in large infrastructure projects ) instead of grand formulas (e.g. Legitimation or Participation ). Problem-oriented interdisciplinary research promises to be more successful because the terms, concepts and problems involved can be easily described and grasped. The importance of common key terms and guiding principles (e.g. responsibility, governance or public service [ Daseinsvorsorge ]) tends to be overrated. They are largely too abstract and are not necessarily mutually connective. 10

13 The following problems and concepts were already discussed in PA and should be considered for future cooperation between ALS and PA: Organization: Recent examples of research on administrative organization include studies in the fields of migration and integration of foreigners (see e.g. the 2017 congress of the International Institute of Administrative Sciences [IIAS] on Managing Migrations, Integration and Poverty ), territorial and/or functional reformation as well as the various forms of public-private-partnerships (PPP). Types/Modes of Administration: Other research focused on participation (of citizens) and legitimation (of administrative activities), on the relationship between politics and administration as well as on ministerial administration. 11

14 Cooperation/Coordination/Governance: This important field of PA research is concerned with issues such as cooperative environmental policy, regulatory structures and regulation as well as questions of PM (e.g. the impact of digitalization, as discussed during the 2016 annual conference of the German Section of the IIAS) and the ethics of/within administrations. Effectiveness: Another branch of PA focuses on the effectiveness and economic viability of administration, including benchmarking and evaluation. European Administration: PA research on European administration and its various interactions with national administration could easily access the extensive jurisprudence on European administrative law and its impacts on the domestic administrative law system. 12

15 There are more problems and concepts that should be discussed and considered for cooperation between ALS and PA in the future: Commercial Activities: States frequently participate in economic markets, blurring the lines between their capacity as sovereigns and their role as market players (e.g.: When Angela Merkel visits China, she acts as German Chancellor, but also as a representative of state-owned Deutsche Bahn. Parts of Stephan Weil s recent government declaration as Minister President of Niedersachsen were drafted by Volkswagen.). This field is largely ignored by PA research but raises interesting questions: What is the relationship between the political and the administrative sphere with respect to public commercial enterprises? What is the self-conception of the actors? What are the specific expectations of citizens/clients? 13

16 Public Contracts: Administrative action through public contracts is a common yet still relatively unexplored instrument, at least in PA. Public contracts are used in numerous contexts, including rather unusual fields such as youth welfare and integration of migrants. Interesting topics for PA research could relate, e.g., to the question as to how administrative branches are organized in fields which are dominated by public contracts, and which specific expertise is required in these fields. The recent debate concerning the Autobahn A1, e.g., involves the contracts between Germany and the private operator A1 Mobil. Procedures and Remedies: New types of administrative procedures such as distribution mechanisms (e.g. awarding public contracts) and inner-administrative supervision and control as well as the organizational/procedural structure of court systems call for empirical and analytical assessment from PA. 14

17 3. Instruments of Cooperative Research and Teaching Facilitating personal encounters: Attempts to initiate cooperative research and teaching should aim at bringing people (including young scholars!) together, e.g. through discussion groups, conferences (such as the IIAS conferences) common journals or volumes as well as the different programmes of the Deutsche Forschungsgemeinschaft (German Research Foundation). Instead of creating new interdisciplinary institutions (e.g. interdisciplinary chairs or common faculties), the focus should be on calls for specific topics involving concrete problems. These issues can be addressed by way of flexible cooperation between ALS and PA, with low thresholds. 15

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19 Actions speak louder than words. So let s get started Thank you! 17