Bureaucracy, Democracy and Westminster: The Quest for Political Control

<p>This thesis argues that a Weberian process of bureaucratisation poses a serious threat in itself to the central values and ideals of liberal democracy. Such a threat arises not only from the bureaucratic pathology of 'goal displacement' of substantive ends by instrumental means, but also, because of this pathology, its tendency to mask and embed ideological challenges to liberal democracy. An effective liberal political constitution is therefore necessary to maintain the democratic control of bureaucracy while exploiting the efficiency benefits of bureaucratic administration. Such a political constitution is in fact contained in the Westminster tradition of liberal constitutionalism, based on the principles of parliamentary sovereignty, ministerial responsibility and political neutrality. Through this theoretical lens, the thesis proceeds to examine the trajectory of public sector reforms against the changing political contexts in New Zealand over the past 20 years and its constitutional implications. The NPM reforms in New Zealand, whether intended or unintended, displaced the political and constitutional safeguards implicit in the traditional model of public service with managerial norms which simultaneously serve to embed the neoliberal ideology. Despite the claim of NPM reformers to control bureaucracy, the paradoxical effects of the reform have been to accelerate the process of bureaucratisation and attenuate democratic control. Recent initiatives aimed to address some apparent weaknesses of NPM, have not changed the fundamentals of the managerial system, and thus fail to reverse this trend of declining democratic control of bureaucratic power. A reassertion of the fundamental norms of the Westminster system is recommended to arrest this decline of liberal democracy.</p>

Bureaucracy, Democracy and Westminster: The Quest for Political Control

<p>This thesis argues that a Weberian process of bureaucratisation poses a serious threat in itself to the central values and ideals of liberal democracy. Such a threat arises not only from the bureaucratic pathology of 'goal displacement' of substantive ends by instrumental means, but also, because of this pathology, its tendency to mask and embed ideological challenges to liberal democracy. An effective liberal political constitution is therefore necessary to maintain the democratic control of bureaucracy while exploiting the efficiency benefits of bureaucratic administration. Such a political constitution is in fact contained in the Westminster tradition of liberal constitutionalism, based on the principles of parliamentary sovereignty, ministerial responsibility and political neutrality. Through this theoretical lens, the thesis proceeds to examine the trajectory of public sector reforms against the changing political contexts in New Zealand over the past 20 years and its constitutional implications. The NPM reforms in New Zealand, whether intended or unintended, displaced the political and constitutional safeguards implicit in the traditional model of public service with managerial norms which simultaneously serve to embed the neoliberal ideology. Despite the claim of NPM reformers to control bureaucracy, the paradoxical effects of the reform have been to accelerate the process of bureaucratisation and attenuate democratic control. Recent initiatives aimed to address some apparent weaknesses of NPM, have not changed the fundamentals of the managerial system, and thus fail to reverse this trend of declining democratic control of bureaucratic power. A reassertion of the fundamental norms of the Westminster system is recommended to arrest this decline of liberal democracy.</p>

Integrating Europe and Demarcating States

The triumph of liberal constitutionalism in Europe after 1989 appeared to herald the end of a hard, limiting (nation) statehood and thereby to increasingly suspend the key function of citizenship—the granting of political affiliation, security, equality, and freedom. Human rights-based protections of individual freedom, as well as the legal consolidation and geographical expansion of European integration, call for new transnational concepts and institutions of political affiliation, which find their focus in European Union citizenship. However, this chapter, stretching from 1989 to the present, analyses how new, conflict-laden disputes about the borders of nation-states and their political affiliation are reviving old rivalries, particularly in the eastern states of the “New Europe.” The return to a protective concept of citizenship defining political affiliation according to imperial motives or ethnic criteria justifies doubts about the influential thesis claiming convergence in citizenship policy in Europe. The crises of Brexit, anti-immigration populism, and Covid instead remind citizens of Europe of their nationality.

Varieties of Constitutionalism in Asia

Western liberal constitutionalism, the dominant vision of which is rights-oriented and court centric is hegemonic to the discourse. While important, this is a particular rather than total expression of constitutionalism which conflates constitutionalism with liberalism and treat this as paradigmatic. This may obscure all other non-liberal models or fuel their dismissal as sham constitutions. A third space must be found, without collapsing anti-constitutionalist, illiberal despotism with no objective limits on power into the sphere of constitutionalism, and without equating judicial review with constitutionalism. To that end, this article seeks to advance the project of pluralising understandings of constitutionalism, drawing from the rich variety of constitutional experiments in Asia, with its multiplicity of religions, political ideologies government systems, cultures, and levels of economic development. Against an idealised model of liberal constitutionalism deployed as an organisational tool to highlight features of non-liberal constitutionalism in their full variety, the article examines three typologies of constitutionalism: religious, socialist and communitarian. In so doing, the idea of normatively desirable and defensible constitutionalist models is investigated, through an inquiry that goes beyond text and courts to other sites of constitutional practice and governance.

Global constitutionalism in Taiwan

In contrast with the decline of liberal constitutionalism around the world, liberal constitutionalism seems to be resilient in Taiwan. Weaving together several threads of history, law and politics, this article first argues that foreign legal education and identity concerns explain why judicial review and constitutional development more broadly in Taiwan have not only flourished but mirrored both German and American constitutional jurisprudence. Second, it maintains that the case of Taiwan poses another challenge to the concept of global constitutionalism since the number of referenced jurisdictions is quite limited.

Eternity and Democratic Precommitment

This chapter examines eternity clauses as mechanisms of constitutional precommitment and as tools for defending democracy in the face of anti-democratic forces. It looks at two broad categories of eternity clauses: provisions protecting state fundamentals and provisions defending democratic pluralism. It also analyses understandings of unamendability as either merely descriptive or as preservative of a core of liberal constitutionalism by assessing the operation of eternity clauses in practice. This chapter discusses unamendable provisions as dealing in imponderables and enshrining values that need judicial specification. It shows how precommitment and militant promise are entirely dependent on other elements of the constitutional architecture, in particular constitutional review. The chapter explains how this results in court self-empowerment and unduly limiting the scope of permitted constitutional change in the name of democracy.

Eternity and Expressive Values

This chapter scrutinizes the literature on constitutional identity, within which eternity clauses are viewed as repositories of the constitution's core values. It analyses unamendability as the site of constitutional expression and eternity clauses as capable of defending against attacks on the integrity and identity of the entire constitution. It also highlights serious problems with importing the sociological concept of identity into constitutional theory's arsenal. This chapter shows that the concept relies on particular understandings of both liberal constitutionalism and pluralism, as well as on a presumed pacified and coherent constitutional ethos. The concept obscures the deep and continuous contestation of the core constitutional commitments rendered unamendable. The chapter also discusses the rise of constitutional identity review as a form of resistance to supranational integration in Europe.

Kako predavati ustavno pravo u dvadeset prvom veku

Constitutionalist discourse has undergone a fundamental transformation at the beginning of the 21st century. New, major constitutional topics have been introduced, inspired by constitutional pluralism and constitutionalism beyond the nation-state. The systemic challenges to modern liberal constitutionalism have prompted a new understanding not only of the constitution, but also of constitutional law as a university subject. The crisis of key parameters of constitutional democracy commands a thorough re-examination of both the cognitive and performative dimensions of teaching constitutional law. For that reason, this paper seeks answers to the question what and how to teach in the epoch of postmodern constitutionalism. The paper advocates the viewpoint that the professor should not only describe phenomena, but also explain the essence of the problem: for example, the republican argument of classical constitutionalism’s irrelevance, or the difference between normality and pathology of constitutional systems in the context of democratic transition, or indeed the trans-nationalization of the constitution and the postmodern paradigm of constitution-building without constituent power. The need for interdisciplinary and multidisciplinary approach, including co-teaching is demonstrated through the topics of monistic and pluralistic federalism, and constitutional guaranties of individual and/or collective rights. The paper concludes that teaching of constitutional law should be guided by global doubt, as the hermeneutics of truth and ethico-political consideration.

Late Spanish Empire

After the Seven Years’ War, the Spanish Empire entered into a quickening spiral of internal and external changes. International rivalries accelerated internal adjustments in the relationship between society and an increasingly bureaucratic, intrusive, and demanding state. Internal and international conflicts resulting from the late-eighteenth-century wars and the Napoleonic invasion culminated with the crisis of the American empire and the emergence of independent republics all over the Spanish America. It was in those decades that the system of three colonies that would survive until the end of the Nineteenth century—Cuba, Puerto Rico, and the Philippines—was established. In the following decades, the three remaining overseas possessions would be sites of enormous changes. The Spanish monarchy put renewed emphasis on military might, giving its authorities a praetorian standing and skirting the edges of the liberal constitutionalism that ruled the Peninsula since 1836–1837. Cuba became critically important as the world’s greatest sugar-producing region, whose wealth was the result of vast plantations worked by slaves and indentured laborers imported (despite abolition) by British, French US and Spanish vessels. Meanwhile, In parallel, the Philippines became a major tobacco grower, the center of commerce with Asia, China in particular . The crisis of slavery in the Antilles after three wars of independence (1868-1898) and the subsequent political paralysis owing to the lack of reforms weakened Spain’s position as a colonial power in the last third of the nineteenth century. The US intervention of 1898, which coincided with anti-imperialist revolutions in Cuba and the Philippines, forced Spain to definitively withdraw, putting an end to its transatlantic nexus and to the Spanish nation’s identity as an American and Asian country.