Legal Regime and Public Service: Legitimacy, Ethics and Comparative Context

International and comparative studies have the ability to enlarge our worldviews and inform our policy landscape, but only if we are sensitive to context.[1] Learning from the “best practices” of other countries works best when the practices being shared are technocratic: traffic management, water treatment, construction standards and the like.  When lawmakers move to import more complicated policies and practices, especially those requiring some measure of political support and implicating government services and actions, the prospects become considerably more fraught.[2]

Public law and public management are inescapably particularistic, rooted in very specific national norms and reflective of the regimes within which they operate. Indeed, the discipline of public administration is defined as analysis and management of the public’s business as that business is defined by a particular society at a particular time. Efforts to study or replicate “best practices” from other countries, even other Western democratic countries, without due regard for the governing premises and legal systems of the society within which those practices occur are at best inexact and at worst counterproductive.

There’s a Reason They’re Called Norms

The importance of legal and social context presents educators and public officials with a significant challenge: how do we learn from each other while recognizing and respecting the cultural distinctions that shape and define legal approaches to governance? The ongoing debate over the proper approach to comparative public administration pedagogy raises both normative and technical questions about what those of us teaching law and policy tell our students. Several such questions come immediately to mind: How do we teach students to approach public policy with an informed sensitivity to the operation of national norms? How do we identify and assess the function and relative importance of mediating institutions—nonprofits and NGOs—in countries with very different understandings of the roles such organizations should fill? How do we ensure that students will recognize and accommodate the systemic structures that empower or constrain public officials in different constitutional contexts? How do we connect ethical practice to foundational legal principles? In short, how do we marry relevant legal norms to public management skills and practices, so that public policy and administration will be informed by both sets of competencies?

A well-regarded American introductory public affairs text describes the policy process as a series of eight steps: 1) establish the context; 2) formulate the problem; 3) specify project objectives; 4) explore alternative solutions; 5) set the policy; 6) develop an implementation plan; 7) monitor and evaluate; and recycle the process.[3] This prescription and sequence begins with an instruction to understand the context because a failure to do so is likely to lead policymakers astray.

“Establishing the context,” necessarily starts with national histories and legal systems, because those are the forces that shape distinctive national cultures and norms, and thus establish the relevant context. Where they exist, constitutions are controlling declarations of public policy, embodying a society’s fundamental philosophical assumptions about law, legitimacy and government power. Constitutions dictate the ways in which citizens “formulate the problems” and effectively foreclose exploration of certain “alternative solutions.” To take illustrative examples from America, the United States Constitution does not permit officials to entertain the “alternative solution” of imposing martial law when burglary rates get too high,[4] or the “alternative solution” of censorship when music lyrics are deemed by a majority of Americans to be too suggestive.[5] It does not permit American deficit hawks to reduce welfare rolls by feeding only Caucasian children,[6] or to combat pollution by appropriating privately owned property.[7] The U.S. Constitution and the jurisprudence it has generated control the methods Americans use to “set the policy” and how we proceed with the “implementation plan.” In civil law countries, where case law does not constitute legal precedent in the same way court decisions do in common law countries,[8] the guidance provided by the relevant Constitution is textual rather than jurisprudential, but that document nevertheless requires managers to discharge their responsibilities within the framework of rules provided.

Accountability and Legitimacy

Failure to follow the applicable rules, failure to operate within the appropriate legal or constitutional context, undermines legitimacy—the very definition of which is “operational rules rooted in constitutional or societal norms.”[9] A legitimate exercise of authority, no matter how coercive, is different from the exercise of raw power unrestrained by adherence to codes rooted in normative values, and members of the polity can be counted on to see it differently.[10] Being perceived as legitimate is especially critical to the continued effectiveness of those serving in local government agencies who must make and implement policies having an immediate and concrete impact on the citizens with whom they regularly interact.

Constitutions and other settled legal regimes circumscribe the arena within which public policy debate may legitimately occur in a given society; familiarity with applicable legal principles and the culture they have shaped also provides citizens with a common language allowing for meaningful democratic dialogue.[11] Lawmakers and public officials operating within a particular regime need not agree with every choice required by a nation’s constitution, but in order to communicate effectively with their fellow-citizens, they do need to understand what those choices were, why initial legal or constitutional decisions were made, and why and how they continue to matter (or not). Without that essential shared framework, public policy issues cannot be properly framed or their connection to the regime clearly understood; they will tend to be viewed as isolated and unconnected challenges rather than aspects of a coherent approach to the use of state power. It is likely that the absence of a recognizable and readily perceived connection to a familiar regime—the inability to connect new approaches and practices comfortably to a pre-existing worldview or frame of reference–is one of the many barriers to the creation of effective pan-national and international bodies.

It is important to recognize that unless they are trained to look for inconsistent normative assumptions, inhabitants of different cultures will take for granted the universality of their own worldviews. This very human tendency makes it difficult to identify significant differences in the cultures of democratic countries that on the surface seem quite similar.  To offer just one example, the term “public affairs” implies the existence of both public and private realms. A generally underappreciated reality is that even in Western democratic countries, legal and constitutional systems define those spheres very differently.

In the United States, the legal system draws a constitutionally significant distinction between the public sector, defined as government and its agencies and officials, and civil society, defined as the multitude of nongovernmental, voluntary communal and religious associations through which individuals may act and connect. That distinction is a crucial, if unarticulated, element of most U.S. policy decisions, because only government actors can violate the American Bill of Rights, which limits government actions but not private behaviors.[12] Based upon this particular understanding of the relationship of public and private behaviors, the American Constitution does not grant affirmative rights; it limits the power of the state to infringe private ones. This is not the case in many other Western democratic states, where it is common to have a constitutional system that both restrains and empowers government,[13] and where social entitlements frequently are embedded in the constitution. As a consequence of these differences in legal context, public managers working in different countries must confront a different set of questions when they are contemplating collective social action.

 An example of the practical significance of such legally disparate worldviews can be seen in the responses of different systems to efforts to privatize previously governmental functions. The move toward greater privatization has gained popularity in a number of countries over the past quarter-century despite considerable confusion over the precise meaning of the term.[14] The government continues to determine the need for the program or service, funds it, and remains ultimately responsible for its management; however, the relevant agency enters into an arrangement—typically a contract, but sometimes a grant or other partnership arrangement—with a private or nonprofit organization to deliver the service or otherwise perform the designated function. In the United States, during the past century, these arrangements have fundamentally transformed governance. The scope of government action has increased at all levels of our federal system, but the truly radical changes have been in the means through which agencies of government address service delivery and public problem-solving.[15]

In the United States, a transfer of sovereignty to nongovernmental agents is more than merely a management problem, as it is in many other countries, because constraints on the use of public authority are fundamental to the United States’ political and constitutional order. The Bill of Rights restrains only government action, making it essential that citizens and public managers alike be able to identify when government has acted. The growth of contracting arrangements has made that identification increasingly problematic, blurring the boundaries between private and public action and making it difficult in many situations to determine whether a particular action or decision can fairly be attributed to government. The result, in the opinion of many scholars has been a loss of essential governmental accountability and thus legitimacy.[16] Note, however, that this is not an issue in countries with constitutions that do not rest on foundations of “negative liberty.”  In those regimes, public service delivery by private contractors or NGOs raises management issues, not constitutional ones. Different systems embed different concepts of accountability and legitimacy.

Similarly, most European governments routinely contract with religious organizations; separation of church and state, if it exists at all, is framed very differently than in the United States.[17] American courts have long held that, whatever else the First Amendment’s Establishment Clause may mean, it definitely precludes the use of tax dollars to advance religion or support religious endeavors.[18] On the other hand, faith-based and religious organizations remain free to contract with agencies of government to provide secular services, and local units of government fund thousands of them to provide job training, childcare, adoptions, homeless interventions and a plethora of other human services.[19] Legally, public managers must ensure that the contracting organizations providing these services are not engaging in constitutionally prohibited activities, i.e., that they are not proselytizing clients, requiring their attendance at church services or engaging them in prayer. The ability of cash-strapped government agencies to assure compliance with these constitutionally required prohibitions is virtually non-existent; as a result, the propriety and legitimacy of governmental partnerships with religious organizations has from time to time become a heated and bitterly contested political issue.[20] This is simply not a problem in most of the E.U., where close partnerships between governments and religious bodies are common, and do not raise issues of legitimacy.

These outsourcing issues are far from trivial. They do not simply reflect different ways of delivering social services. Instead, they implicate the previously-referenced, normative understandings of accountability—a concept absolutely integral to the legitimacy of public action.  In an important article on outsourcing and the New Public Management, Peters, Guy and Pierre, made precisely this point:

The basic problem in both theories [outsourcing and NPM] is that the linkage between control and accountability—the heart of democratic theory and a democratic system of government—has been confused. Both models of public administration seek to replace political power derived from legal mandates or elected office with an entrepreneurial style of leadership or—with NPM—a remote and indirect model of leadership. This creates two different problems, derived from different perspectives on governance and citizenship. First, if elected political leaders have such limited control over public administration, is it reasonable to hold them accountable for the decisions and actions of the public service, and if elected officials should not be held accountable, then who is accountable?[21]

Contracting with a third-party surrogate for service delivery is simply one example of the complex interplay between basic governmental institutional theories and managerial efforts to improve service delivery. Peters, Guy and Pierre quite accurately note the problem with assigning accountability—the problem with determining who is responsible for what. There is, however, an even more foundational accountability issue, and it brings us back to the central concern of this article, the role of national political culture in determining accountability. It is necessary, but not sufficient, to identify the person or institution responsible for a particular government action. It is even more critical to ask the question “accountable to what?” What is the system of rules, what are the normative expectations, against which we are to measure action and determine accountability?  If we do not understand that legal and cultural context, we cannot form a coherent theory of accountability, and without a coherent theory of accountability—a theory that is grounded in normative expectations and transparent enough to allow citizens to identify responsible actors—we simply cannot teach a discipline called public administration. At most, we can offer technocratic skill training.

A Question of Ethics

Legal cultures not only dictate perceptions of accountability and legitimacy, they also provide the framework within which a polity defines ethical public service. One of the thorniest problems faced by employees of multinational businesses is how to navigate the ethical landscape in countries where payments that would be considered bribes in the U.S. are common and expected. Often, laws forbidding such practices exist, but as relatively new and to-date ineffective grafts on pre-existing and more forgiving legal systems.[22] Law shapes culture, but the process takes many generations, and ingrained practices are demonstrably difficult to eradicate.

Much of the recent literature on what constitutes ethical behavior in the American context has focused upon explication of specific ethical principles, the challenges of contracting out, the New Public Management, and the consequences of America’s increasing “marketization” and a corresponding diminution in concern for the public good.[23] These are important topics, but considerably less attention has been paid to the importance of the nexus between ethical public behavior and the relevant legal culture.  Yet as scholars have long recognized, ethical public service is rooted in, and defined by, the legal context within which it occurs.

In the United States, ethical public service is ultimately defined as consistency with the American Constitution and Bill of Rights, and that consistency is essential to government legitimacy.[24] It is important to emphasize the often-conflated distinction between personal and professional ethics in this context. While personal ethics are very important to avert what Adams and Balfour have called “administrative evil,”[25] the professional ethical obligations emphasized by Rohr and Rosenbloom, among others, require fidelity to the principles of the American legal and constitutional system. As Kennedy and Schultz have written,

The decision-making procedures and substantive protections for rights found in the Constitution and Bill of Rights define the first layer of duties and obligations that public servants have. Together, they define how decisions are to be made (procedural justice) and what can be decided or done (substantive fairness or justice)…the Constitution and Bill of Rights form the first tier of a public administration or public service ethic.[26]

Lawmakers and public officials, as well as those who teach them, need to recognize both the constitutional roots of public sector ethics, and the negative systemic consequences of frequent deviations from exemplary behavior. Average citizens may not be able to articulate the constitutional bases of their discomfort with conflicts of interest and other ethical departures, but they expect public servants to understand that they have an obligation to place the public good above private interest. When breaches of the public trust engender widespread cynicism, it is not only a situation constituting a genuine threat to the conduct of the business of government, but also a failure to understand the relevant constitutional and civic culture and context. As noted above, ethical and effective public performance depends significantly upon consistency with the legal and constitutional context of the relevant regime.

 Comparative Public Administration: Some Final Observations

Unfortunately, conscientious public affairs instructors who understand they must begin any comparative exercise with an introduction to the basic assumptions of a regime do not have a wealth of pedagogical materials available to them. Too many books dealing with comparative public administration and law ignore or slight foundational social and contextual differences, preferring to highlight the more technocratic issues common to governments everywhere.  There are a few scholars who have argued for the importance of grounding public management pedagogy in the relevant political theory.  Michael Spicer’s book, The Founders, the Constitution and Public Administration, published in 1995, made a strong case for the importance of a public management rooted in a nation’s constitution.[27] “The purpose of this book,” Spicer noted in his introduction “is to examine the worldviews underlying public administration and the Constitution.” Although Spicer directed his attention to the U.S. Constitution, all legal systems are constitutive of national cultures to a greater or lesser extent, and they all shape the worldviews of those who operate within them. Differences in those worldviews can be seen in the varying attitudes toward government that characterize different countries, even when the countries being considered are all constitutional democracies. In the U.S., as public administration has concentrated on the need to legitimize the administrative state, it has found itself at odds with a polity fixated on the need to limit government power, a central U.S. Constitutional concern. As a result, administrative actions that are taken for granted in European countries with strong administrative traditions often generate accusations of illegitimacy in highly individualistic America.

Unlike citizens of countries characterized by racial or ethnic homogeneity, American identity is rooted in allegiance to a particular worldview; it is based upon an understanding of government and citizenship originating with the Enlightenment and subsequently enshrined in the U.S. Constitution and Bill of Rights. Understood in this way, “constitutional culture” has a considerably broader scope than law and policy; it is an expression of the ongoing dialectic between society’s legal norms and the broader culture within which those norms are situated and must be understood. The American “constitutional culture” arises from the operation of our constitutional values in a radically heterodox culture, and the effects of that interaction on policy choice and contestation.

Decisions made by those who designed America’s constitutional architecture shaped contemporary definitions of public and private, notions of governmental and personal responsibility, and conceptions of human rights. They dictate the manner in which we frame and understand civic responsibility, and allocate collective social duties among governmental, nonprofit and private actors. In short, as with regimes elsewhere, those initial constitutional choices have been constitutive of a distinctive American culture. What Kennedy and Schultz have called “the Constitutional Ethic” is behavior grounded in, and compatible with, the United States Constitution.[28] In the U.S. and elsewhere, when significant segments of a population do not know the history, philosophy or contents of their legal system, they are unable to make informed judgments about the propriety of behavior of their public officials.

Unlike many of our European allies and trading partners, the American Constitutional ethic grows out of an approach to government based upon—and structured to so as to minimize—political distrust.  The battle to separate from England was triggered by distrust of King George III and the British Parliament.  The weak government of the Articles of Confederation was rooted in distrust of central authority; the Constitution of 1787 was the result of distrust of both weak decentralized government and “majority factions” that could infringe upon the rights of individuals. In fact, the entire American constitutional machinery—separation of powers, checks and balances, federalism, bi-cameral legislatures—grew out of an effort to address this fundamental suspicion of concentrated power, and the belief that abuses of power are likely in the absence of structural constraints on administrative behavior.

This mistrust could be considered constructive, since it led to the creation of institutional limitations on abuses of power.  But a culture of distrust also has quite negative implications for democratic governance: distrust of individuals who are in a position to abuse power for personal gain or to engage in other forms of self-dealing.  That sort of mistrust is corrosive.  It generates public suspicion that those who participate in government are corrupt. When such suspicion or cynicism becomes pervasive, it becomes much harder for government to generate citizen engagement, let alone the voluntary compliance necessary to achievement of public purposes.[29]

If it is important for citizens to believe in the honesty of those who serve, and that most officials be viewed as trustworthy public servants, it is equally important that government officials not only be honest, but that they be seen to be honest—both personally honest and honest in their fidelity to the relevant legal regime and its ethics of public service. As a consequence, conflicts of interest and the appearance of impropriety—while considered improper in virtually all regimes—will be defined differently in the U.S. than in India, for example, just as office-holders’ sexual peccadillos generate quite different responses in the U.S. than in France.

A nation’s legal and social culture are products of a complex interplay between its history, religious and ethnic composition and legal regime, and the latter consists of considerably more than a nation’s founding documents and/or assumptions. Citizens of one country are unlikely to fully understand and appreciate the nuances of another nation’s culture without considerable effort and exposure, but that should not deter us from recognizing the fundamental challenge of comparative law and policy: Measurements of legitimacy and accountability are necessarily contextual, and public administrators focused upon the importation of “best practices” need to preface that exercise with a review of the nature of the practice at hand and the extent to which its success or failure requires an administrative context within which it makes sense.

Unfortunately, there is no simple test for appropriateness; each case must be assessed on its merits. What we can do, however, is highlight the issue and its significance.

All constitutions and legal systems rest upon considered normative judgments about the conduct of public affairs, judgments that have their roots in the particularities of that country’s history and experience. Trying to teach comparative law or public administration without constant reference to those foundational judgments is like trying to teach reading without reference to the alphabet.

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