TED 4: Call for participation

The 4th Trans-European Dialogue will be held on 9-11 February in Vienna, Austria, 2011 on the theme “Law and Public Management Revisited“.

It will be hosted by the Austrian Federal Chancellery

Call for participation (download in PDF)

The question of the linking of a legal and a managerial rational seems to be a challenge, especially in periods of rapid reform. Law with PA was much discussed during the times of CEE early transition; it is generally one of the key issues of Continental European PA. It is also a central theme in Western European countries, especially the continental ones, where the State of Law, the Rechtsstaat, or the Napoleonic states, are embedding public sector reforms. But a tension between lawyers, managers and policymakers remains.

The discipline of public administration was first developed in the 19th century by lawyers, especially in continental European countries — and political scientists —in Continental Europe, the UK and the USA. Max Weber was a sociologist but also a lawyer, and only in the second half of the 20th century, following Herbert Simon in particular, sociology and organization theory switched the emphasis on the study of public administration, with an ever-growing tendency to talk about public management rather than public administration. Consequently, disputes between disciplines followed, especially in American universities, over the use of these two expressions.

Somehow, public administrators and lawyers have gone separate ways. 30 years ago, lawyers were a natural species in public administration. They invented the field of public administration and developed the first questions and problems for research of a multidisciplinary character. To date, the lawyers seem to be lost in the technicalities of law and rights and duties of businesses (and to a lesser extent) citizens in their relations to different public administration bodies and organizations and office holders and civil servants. The administration of law seems to have grown far away from practices in public administration, where organization, project management, targeting, efficiency, and political accountabilities seem to have taken the place of law and justice. From their different perspectives however, courts and judges continue to assign responsibilities and accountabilities to administrative bodies and individual citizens and organizations. From managerial and organization development perspectives legal accountabilities seem to be an alien phenomenon. Law is considered an instrument for policy development and not primarily as a normative grid within which and through which the administration may act.

In Europe, in different countries there appear to be different positions for lawyers and managers in public administration. In some countries, the rule of law prevails as a quite recently reclaimed domain of civil society against the state. Policymakers and managers complain that law’s inflexibility, procedures and rights prohibit the development of an effective and efficient public administration. In other countries, policymakers have sought for ways to make proceedings for decision making more flexible and to circumvent established rights. This also has found expression in the position of lawyers and managers in Public Administration. Being lawyer by training still is a prerequisite for senior positions in some countries where managers have obtained such top positions in other countries. Therefore, the debates on policymaking and policy implementation in public administration are dominated by lawyers in some countries, but by managers in other countries. Both positions and backgrounds have led to different perspectives on public administration, but a complaint still is that lawyers in public administration tend to maintain a different language and see obstacles instead of solutions for new policy developments and therefore are considered more of a hindrance than as a support. On the other hand, lawyers are inclined to apply legal reasoning and complain about a lack of respect of policymakers and managers for rights of persons and business while developing new policies. While there are certain trends regarding the entire structure of regulations affecting the patterns of lawyers’ and public administrators’ working behaviors as well: detailed imperative norms tend to replace traditional dispositive civil law logic that provide framework for due behaviors. Thus law as “art boni et aequi” appears to give way to a sort of mechanical law engineering. Additionally, the quantity of regulations raises new questions since legislative bodies tend to act like law mass-producers. Is this how it should be? Do mass-modifications add to the regulatory purposes? Does the enormous quantity of law require new approaches of dealing with it? Do we need a “New Law Management”? In short, there appears to be a struggle between different languages, perceptions and aims in public administration. The question for this conference is, how a dialogue and cooperation can take shape, without compromising the rights related to the rule of law but also without giving in too much on efficiency and effectiveness in public administration.

The fourth TED therefore will not only be a dialogue between Eastern and Western Europe, but also between lawyers and policymakers & managers.