Panel 12: Performance, Public Management and Law

The elephant in the room?

Chaired by: dr. Wouter van Dooren (University of Antwerp), prof. mr. dr. Stavros Zouridis (UvT) & prof. dr. Geert Bouckaert (KU Leuven), &

An underexplored issue in public management is the relation with law. For a long time, in countries with a continental administrative culture, public management was seen as equal to administrative law. The Weberian principles for organising and managing the state fitted well into the legal doctrine. The importance of codification, rule-­‐making and routine action in a bureaucratic machine was a good match with the deductive and rational-­‐technical use of law in the judicial system. Administrative law in particular was expected to provide a basis for administrative action as well as a protection of the citizen against bureaucracy. Private law was another hemisphere.

In the late 1970s, public management and public law diverged. While public law largely persevered at the principle of the administrative state, public management developed as a separate discipline and practice. Instead of stressing rules and routines, new organising principles were proposed. New Public Management was the first departure from public law. Rather than rules and routines (how things are done), the main focus was on results (what is done). Public managers should have managerial freedom and should be held accountable for results rather being rule-­‐followers. Large bureaucracies should be broken down into small business-­‐like agencies largely out of the hierarchical remit of ministries and ministers. NPM brought public actors into the private realm and thus, private law also became applicable in the public domain.

Although the entrepreneurial model has come under heavy criticism, the pendulum did not swing back to the Weberian state. Rather, in a second wave of reforms, new approaches of coordination, participation and co-­‐production gained importance. Some have labelled this next step New Public Governance. All these reforms however have been conducted in isolation from the judicial system that controls the administration along the lines of the Weberian principles. Legally, cooperation and coordination without hierarchy remains a problematic. Legal scholarship is almost exclusively concerned with enforceable rules and regulations – or, in PA-­‐speak, the shadow of hierarchy.

NPM and NPG reforms are well documented in comparative public administration. A wide array of studies on the impact of NPM and (to a lesser extent) NPG on performance is also available (see for instance the FP7 COCOPS inventory). Yet, the relative failure of NPM and the chances of success of NPG are seldom assessed in relation to tensions between public management and the legal system. In our view, the interaction of public management and law may well be the elephant in the room when we venture to explain public management practices. In particular when boundaries between public and private weaken, we can expect a significant impact of the legal system. The panel therefore wants to look into the tensions between public management and law. Exemplary questions we would envisage are for instance.

  • What are the unique features and variations of continental law systems? Are legal cultures relevant for public management?
  • How are NPM and NPG reforms transformed when implemented in different legal systems?
  • Does law reinforce or hinder the implementation of performance-oriented management?
  • Personnel law and HRM techniques; are they compatible?
  • How performance contracts can be enforced? Can they be enforced at all?
  • Is performance budgeting possible in the light of input based steering and austerity measures (see also EU policies)?
  • Is citizen participation slowing down projects or not?
  • Is there a hidden value conflict in the tension between public law and management? Are for instance equity concerns scarified for efficiency gains?
  • What is the role of administrative courts in public management?
  • When do legal systems collide? How is public and private law applied in networks, PPP’s, and other collaborative settings? Who is accountable to whom and for what?
  • What is the impact of legal systems and cultures on frontline service delivery?
  • How does the frontline cope? What does this tell us about public management and public law?

This is a broad, but by no means complete, list of concerns that we would like to explore in this panel. The purpose of the panel is exploratory. We want to bring sholars who work on the theme together to discuss existing studies as well as future research prospects. Hence, we invite participants to suggest papers under the broad umbrella of public management and law.

This panel makes a connection with the research line public management of the NIG research plan. Comparative analysis of public management has only taken legal arguments on board indirectly. There has been research on public management in the legal system. Yet, the impact of the legal system on public management remains underexplored.