INTL 204. Introduction to Comparative Politics

Assoc. Prof. Murat Somer, CASE 153

E-mail: musomer@ku.edu.tr

Fall 2012 Office Hours:

Tuesdays, 2:00-4:00pm

Chapter 7 : Unelected Components of Government: Judiciaries, Bureaucracies, and Militaries Learning Objectives

Discuss the tasks of the judiciary, bureaucracy, and military.

Describe how each of these unelected governmental components shape policy decisions.

Discuss the advantages and disadvantages of judicial review.

Discuss the strengths and weaknesses of a strong bureaucracy.

Describe the roles that the judiciary, bureaucracy, and military play in the TIC cases.

OverviewUnelected components of government: Major

political institutions whose officials are almost never? elected by public:

Judiciary

Bureaucracy

Military

Discuss: How is this compatible with democracy? Why do democracies need such unelected bodies?

The JudiciaryConsidered as the third branch of governmentStabilizes political system by solving disputes

related to the lawComparative politics analyze how a specific judicial

decision affects policy outcomesThe judiciary is supposed to have no pressure from

legislature or executive: judiciary independence.Judicial ruling is divided by civil law or common

law

 

Why do democracies have more lawyers per capita?

Civil LawJudges interpret the already existing law.Existing law is the last resortLess room for judges’ individual judgmentsExamples: Mexico

Common LawJudges have room to interpret the lawJudge’s case ruling effects the law: case lawThe decisions taken at previous high courts affect

the decisions of the judges: stare decisisExamples: United States

Tasks of the JudiciaryDetermining Violation of Law and Appropriate

PenaltyTo settle disputes by deciding the guilt or innocence of

the individuals charged with a crimeDepending on the country, judges or juries have to

power to decide so

Interpretation of Vague Laws Passed by Other Branches of GovernmentNo law is clear so as to be reached a consensus uponCourts are there to interpret the vague & unclear lawsSometimes laws are intentionally written vaguely

Tasks of the JudiciaryReview of the Constitutionality of Existing Law and

PolicyJuridical review: Judiciary decides on whether new

laws/policies are line with the constitution (constitutional juridical review) or with the existing laws (statutory judicial review)

Creation of New Government Policy in Response to a Pressing Social ProblemThe courts can dictate new laws in addition to interpretingThe court acts like a legislator or bureaucrat: juridical

activism

Settlement of Civil Disputes and Disputes Between Units of GovernmentCourts can solve disputes among individuals;

between a company and an individual; between two different units of government

Tort law concerns civil disputes. When a civilian is harmed, the resolution of the disputes falls within the category of tort law

Legal Sanctioning of Particular ActsProviding official decision to such matters: divorce,

child adoption, name changes, distribution of property upon someone’s death, etc…

To what extent is juridical review compatible with democracy?

Who should decide whether conscientious objection should be allowed?

What about headscarves in government?Privatization?

Two ways

Political

Parties/representatives in the Parliament

Executive decision of the government

Directly by people through a referandum

Judicial

Constitutional court in Ankara decides

Courts makde decisons based on individual appeals

European Court of Human Rights court in Brussels decides

Think and Discuss

What is the most important task of the judiciary? What makes this task so important?

The JudiciaryOrganization of the Judicial Branch

Organization of the JudiciaryCourt systems have complex hierarchical structures

(example: provincial courts at the bottom, supreme courts at the top)

Only one Supreme Court at the top: US, Australia, Finland, Paraguay

Two courts at the top (Supreme and Constitutional in general): Benin, Gabon, Lithuania, South Africa, South Korea, Thailand

The United Kingdom has no juridical review.

True or False?

Traditonally true, due to the notion of parliamentary sovereignty, laws passed by the parliament are constitutonal by default.

False, with the Cosntitutional Reform Bill of 2005, the UK has recognized that the UK courts have to take into account the rulings of European courts in matters of fundamental rights. Anti-terrorism bill was dclared unconstitutional because of European rulings and Blair was forced to change the law. A Supreme Cort has been established with the Lords of Appeal as its first members.

Germany has a very strong judiciary completely independent of the other branches of government.

True or False?

Yes, because of the lawless Nazi past, Germany was founded as “Rechts Staat.” The Federal Constitutişonal Court has powers of juridical review over the rules and policies of other branches. The Court, whose justices can only be removed by the court itself, banned far-right and far-left parties.

No, the legislature appoints the justices (8 by the Bundestag and 8 by the Bundesrat)

Comparatively speaking, France has one of the weakest judiciaries. This is bacause it has a civil law tradition.

True or False?

True, in civil law, judges have less power to interpret the law and their interpretaions do not become binding on other judges (do not form precedent).

False, other countries also have civil law tradition but have stronger judiciaries.

The JudiciaryAdvantages of Strong Judiciaries

A check on majority tyrannyA key component of the “rule of law” in politics and

economics

Disadvantages of Strong JudiciariesPower in the hands of unelected officialsThe potential to advance a political agenda

Advantages & Disadvantages of Strong JudiciaryADVANTAGES DISADVANTAGES

Checks & balances the ability of the majority: minority protection provided against majority’s “tyranny”

Too much power in the hands of unelected officials

Importance of rule of law in politics and conomics. Secures rule of law, contractual relations. Rule of law tends to prevent corruption and thus corrupt executives

Potential of judiciary to advance a political and partial agenda. Difficult to see that judges are always objective. They might have personal and ideological stakes in juridical decisions

Theory of Inverse Judicial PowerWhy are some courts aggressive policymakers?Inverse judicial power theory: The power of the

judiciary is inversely related to the unity of other branches

Judiciaries become more independent when executive and legislative branches are weak.

Examples: Post-Communist states like Russia (post-communist judicial activism)

The Bureaucracy

Bureaucracy: The executive branch which oversees the implementation of the laws that legislature makes

Divided vertically into various departments and agencies

Implement policies in particular areas: agriculture, labor, environment

It has power and autonomy fourth branch of government

As the size of the government grows, bureaucracy grows as well and it gets more difficult oversee bureaucratic actions

The BureaucracyTasks of the Bureaucracy

Implementation of laws and policiesInterpretation of existing but vague awsAgenda setting and advising on policy specificsPolicy creation

Tasks of BureaucracyImplementation of Laws and Policies

To execute laws and policies made by legislative branches.At upper level of bureaucracy: planning of the implementationAt lower level of bureaucracy: routine duties; inspecting individuals,

corporations, etc…

Agenda-Setting and Advising on Policy SpecificsAt higher levels of bureaucracy, executives might promote their area

for the implementation of required policies (efforts in setting the policy agenda)

Bureaucrats can provide detailed information to legislators while a specific policy is drafted

Example: In the US, bureaucrats testify in congress during specific policy discussions

Middle/Lower level bureaucrats can give suggestions; their superiors can filter these suggestions before passing them to upper levels.

Tasks of BureaucracyInterpretation of Existing but Vague Laws

A particular law can be unclear/vague intentionally or unintentionally.

In vague situations, bureaucrats can fill in the blanks of vague laws

Policy CreationBureaucracy can create policies from scratchSpecific rules for an issue may be absent, thus the

bureaucracy can fill in the blank

Think and Discuss

What is the bureaucracy’s single most important task? What makes this task so important?

The BureaucracyOrganization of Bureaucracies

Cabinet department or ministrySecretary or ministerCivil service and civil servantsMerit system versus spoils systemSpecialist approach versus generalist approach

Bureaucratic OrganizationChief executive appoints the top officials in each

branch of the bureaucracyTop officials’ tenure in office depends on chief

executive’s termTop officials might be fired because of low

performance although chief executive is still there.Middle Level bureaucrats are not generally appointed.

They are civil servants, and are hired because of their expertise.

In democracies civil servants are selected by merit system (based on competence)

Opposite of merit system is spoils system; where even middle officials are appointed

American Federal Bureaucracy4 Types of government agencies: cabinet department, regulatory agency, government corporation and independent executive agencies

Cabinet departments are the closest to the chief executive. They are headed by a secretary (Example: Homeland Security Department, 2002)

In other countries Cabinet Departments are known as ministriesThere are 4 times more independent agencies than departments: Environmental Protection Agency, FED, etc…

In the US Merit System, specialist approach is used (individuals with a specific skill fill a specific role during all their governmental career). 

In European Merit System, there is generalist approach where officials generally have a law degree and can change department

The BureaucracyAdvantages of Large and Powerful

Bureaucracies StabilityExpertiseImpartial and fair application of rules

Disadvantages of Large and Powerful BureaucraciesInefficiency through overexpansion and wasteful

spendingPower in the hands of unelected officialsResistance to reform and creative solutions

Advantages & Disadvantages of Strong Bureaucracy

ADVANTAGES DISADVANTAGES

Promotes stability. Especially good when there is instable governments

Bureaucrats might favor expansion of their specific departments Monetary burden, over-expansion

Thanks to merit system, bureaucracies provide great amount of expertise for relevant policies

Bureaucrats are unelected and may not feel responsible for voters. This might create lack of responsiveness in bureaucracies

Enables fair application of laws; especially specific laws

Bureaucracies might resist to reforms. Bureaucracies are rigid organizations and reforms might challenge their current position.

Bureaucratic Autonomy TheoryBureaucracies, over time, might develop autonomy.It’s on the interest of bureaucrats to secure the

autonomy of their department when they get more experienced.

Experienced bureaucrats are more difficult to control and to be replaced.

CASE [BRITAIN] Permanent Secretaries: They hold their position even when the related ministries change. They can alter the policies by filtering the information to be given to ministers.

Additional terms regarding BureaucracyNomenklatura system:

Method of establishing bureaucratic system in USSR. The system involves a list of names loyal to the regime. These names gain positions via their connections and merit. The system persists in current Russia

Technocrats:Bureaucrats who are experts of their areas; and are

not ardent followers of the governments’ ideology.Reds:

In China, Reds were bureaucrats –unlike technocrats- who strongly adhered to communist ideology. They conflicted with Chinese technocrats.

Egypt's aftershocks: Military vs the people

The MilitarySimilar to other parts of bureaucracy by its hierarchy

and follows standard operating procedures

Yet, it is most imposing branch on government; thus different from other bureaucratic organizations

Position of the military vis-a-vis elected officials vary across countries:Civilian control of the military (ex: United States):

Elected officials decide on military issues such as military spending.

Yet, in most other countries, military enjoys some autonomy

Tasks of Military Under Civilian ControlDefending the country

Deterring the attack of the external forceIncreasing spending on security might trigger rival neighbors arms

raceMilitary can / might influence the decision on arms race

Developing into a “Professional” Fighting ForceBecoming more focused and specialized in military matters such as

national securityIn professionalized militaries, academics play a great role

Controlling the EmpireGovernments used to control militaries to expand territories of control

colonies.Militarism: Concentration on territorial expansion and thus great

increase of military spending takes place

Think and Discuss

What is the single most important task of the military? What makes this task so important?

Military Rule & PraetorianismCoup d’état: Military officiers can intervene to

overthrow the existing civilian government. Generally, coups are lead by small number of military officers

Junta: A group of leaders of the various segments of a military organization which conduct the military rule. Juntas are observed in Latin American military regimes

Preatorianism: A political system where the military takes an active role in political decisions openly or covertly

Advantages & Disadvantages of Strong Military

ADVANTAGES DISADVANTAGES

Can take tough policy decisions regardless of what people can think about. People cannot elect military

administrations

Although most military leaders take control to end corruption and social

chaos, they may be reluctant to surrender their power. They can think that country will be worse off if they

relinquish their power

Strong military policies can battle corruption and restore order (Example:

South Korea, General Park Chung)

Even if military relinquishes its power, there is no guaranty that it will no

more interfere with politics.

New Professionalism TheoryMore professional militaries might become more focused

on issues like economic development and corruption.Hence such militaries might become more likely to

intervene because of domestic concernsAlfred Stepan’s new professionalism theory: What the

military perceives as mission is important: It might perceive internal or external threat. Perception of internal threats might provoke military coups.

CASE [NIGERIA]: Nigerian army did not have to worry about external threats, but was concerned with internal threats. Hence Nigerian coup had domestic focus

According to new professionalism theory, what determines to what extent there is civilian control over the military?

What other factors can you think of that might explain this?

Who decides where the main threat comes from and what the military’s mission should be?

New democracies have moved……. Parliamentary sovereignty and ……judicial/constitutional reviewA) away from; closer toB) closer to; away from

What do we call it when the judiciary begins to act like a legislator or bureaucrat?

In your opinion, do the advantages of powerful unelected officials outweigh their advantages?

On which factors does the answer to the above question depend in a paticular country?

Topic in Countries The United Kingdom

Common law approach to the judiciary; relative absence of judicial review authority; new Supreme Court established in 2009

Bureaucracy declined under Thatcher; culture of subordination to elected officials, yet significant discretion over policy details

One of the world’s most powerful, professional, and civilian-controlled militaries

IN THEORY AND PRACTICEBUREAUCRATIC AUTONOMY THEORY AND THE UNITED KINGDOM

Bureaucratic autonomy theorybureaucrats try to maximize their department’s

independenceOnce bureaucrats are established, they are more

difficult to control and replaceBritish bureaucracy was autonomous

Permanent secretary – can influence government policy

Topic in Countries Germany

Independent judiciary with substantial review authority; relatively powerful Federal Constitutional Court, but lower courts are all under the control of the Länder

Decentralized bureaucracy; relatively small in size compared to other European countries

Military under firm civilian control since WWII; has focused more on peacekeeping activities, leaving broader security to NATO and European Union

Topic in Countries India

Hierarchical judicial structure; Supreme Court has ruled that the legislature cannot alter constitution’s “basic structure”

Large bureaucracy with carefully selected elite (IAS) at the top; poor pay and high demands lead many to leave for private sector

Large military; possesses nuclear weapons; generally under civilian control

Topic in Countries Mexico

Civil law tradition; practice of genuine judicial review relatively new

Bureaucratic appointments had been based on spoils system; liberalization has led to increased professionalism, but corruption remains

The military has little political power; has taken a back seat to civilian leaders

IN THEORY AND PRACTICENEW PROFESSIONALISM THEORY AND MEXICO’S DRUG WAR

Alfred Stepan’s new professionalism theoryHighlights the military’s perception of its mission

Greatest challenge to Mexico’s military is the way against drug cartelsShifts mission to internal rather than external threats

Topic in Countries Brazil

Complex court system; Supreme Federal Court has ample power to check other branches

Bureaucracy seen as comparatively competent, but corruption continues to be a problem

History of military involvement in government; retains control of the Military Police, often criticized for their brutality

Topic in Countries Nigeria

Military governments neglected federal and regional courts; fostered judicial corruption

Rampant corruption in the bureaucracy; appointments often due to regional, ethnic, or family ties

On and off episodes of military authoritarianism since independence

Topic in Countries Russia

Judiciary maintains a degree of independence, but this has decreased under Putin; corruption remains a problem

Increase in size of bureaucracy under Putin; appointments given to those loyal to Putin; corruption remains a serious problem

Civilian military control during Soviet period continued to the present; used for internal security; hazing practices became political issue

IN THEORY AND PRACTICERussia and the Theory of Inverse Judicial Power

Inverse judicial power theorythe courts’ power is inversely related to the power

and unity of the other branches

Russia experiencing increasing threats to judicial independence by Putin

Think and Discuss

Which of the theories discussed in this chapter seems most convincing, and why?

Topic in Countries China

Courts lack independence from CCP; problems with corruption; large numbers of civil cases filed each year

Relatively significant bureaucratic authority over policy implementation; increased emphasis on technical expertise rather than ideological commitment

People’s Liberation Army (PLA) has played a central role in politics since 1949; relatively large military budget

Topic in Countries Iran

Judiciary is constitutionally required to enforce “ideological conformity”; Supreme Leader has strong say over legal system; authority to review legislation given to Guardian Council

Unlike China, ideological loyalty is key; bureaucratic corruption is an issue

Somewhat weak and fractured military; Revolutionary Guards given more power in recent years

Think and Discuss

Do the advantages of powerful unelected officials outweigh the disadvantages?

Country Summary 7-1a p223

Country Summary 7-1b p223

Country Summary 7-1c p224