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Preface: And property for all?

Property, Power and Market Economies

Mark Findlay

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Law and the new normal: reimagining property

Property, Power and Market Economies

Mark Findlay

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Introduction: identifying and explaining governance virtuous circles

Creating Virtuous Circles of Anti-corruption

Alina Mungiu-Pippidi

In the academic world as well as in international development, after many years of being marginal, corruption has resurfaced as a major issue. This chapter outlines our understanding of corruption as a type of particularistic social allocation of public resources. It defines it in opposition to distribution based on ethical universalism and as the outcome of equilibrium between opportunities for corruption and constraints on elite behavior. We define what we understand as a virtuous circle—the passage from extractive to inclusive institutions—and why we decided to study them in this book. Throughout this chapter, we also explain step by step how we identified the criteria for contemporary achievers that managed to establish virtuous circles, and argue for the selection of the case studies presented in this volume. The chapter argues for a diagnostic tool nested in quantitative evidence and presents the different indicators that we can use in this context. Furthermore, the narrative presents two paths to better equilibria between opportunities and constraints. The paths look at the modernization of the state and the modernization of society. In this chapter we set the scene for the in-depth case studies offered in this volume. We trace evidence of why certain countries managed to establish virtuous circles and whether these changes are sustainable. In comparing results we hope to contribute to a better understanding of the paths to good governance.

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Bernardo Sordi

This chapter reflects on the history of administrative law against the background of the emergence and evolution of a distinct form of administrative power within the European state over the last two and half centuries. The chapter outlines, in a very general way, answers to several comparative questions: in what ways have the various paths to droit administratif in France, or Verwaltungsrecht in Germany, converged or diverged from the path to administrative law in England (and later America)? Similarly, how have the German or French paths to the Rechtsstaat or the État de droit, respectively, converged or diverged from the Anglo-American path to the Rule of Law? This contribution proceeds on the premise that the particular routes to droit administratif, Verwaltungsrecht, or administrative law must be understood with at least some sensitivity to the various processes of state-formation as well as to the different constitutional histories of the countries concerned. Nevertheless, it would be an error to believe that a comparison of state-building processes could mechanistically provide a clear scale for measuring the intensity of the processes by which a distinct law of administration took shape. The history of state-formation in the various corners of Europe proceeded not merely according to its own specific tempos but also on a different factual level from that of the conceptual and legal representation, which is in fact the focus of our discussion. Thus, it must be stressed that the divergences and convergences we propose to trace are limited to representations within legal orders, and do not extend to the underlying history of state power per se. The analysis confines itself to explaining the different techniques of conceptualization employed at different times and in different national contexts in relation to the identification and execution of public tasks understood as specifically belonging to the administrative sphere. Our aim here is simply to define the different juridical articulations within which the institutional enterprises definable as states emerged historically. A second premise, which is of a chronological nature, flows from the first. The conscious emergence of a power, tasks, or law considered as ‘administrative’ is a relatively recent phenomenon, something reflected in the historical development of languages, lexicons, and concepts. In France, for example, the terms administration publique and bureaucratie did not become widely used before 1750, and droit administratif did not make its first appearance until the early years of the nineteenth century. Moreover, Verwaltungsrecht in Germany, or administrative law in the English-speaking world, did not appear until well into the nineteenth century (and in the English case arguably only came into wide usage in the twentieth). We must therefore be aware that the question of administrative power or administrative law has its own history, which is not necessarily coterminous with history of forms of public authority. Rather, the emergence of a specifically ‘administrative’ power or law is intrinsically a modern phenomenon, dating back no more than 200 years or so. Thus, the questions this chapter seeks to answer only make sense for the past two centuries: for the nineteenth century, in which an identifiably ‘administrative’ space, as well as corresponding understandings of ‘administrative’ power and law, emerged; and for the twentieth century, in which the vast expansion of ‘administrative’ personnel, responsibilities, organizations, and establishments (including, perhaps most importantly, the diffusion of public services and of social administration) became an inescapable feature of modern governance. It is precisely in this time span that the divergences and convergences between the different paths of state-formation become noticeable and measurable.

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Richard Hawkins and Knut Blind

This introduction explores the conceptual background and definitions that pertain to understanding standards and standardization in the context of innovation. A general overview is provided of the themes explored in the chapters that follow.

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Introduction

Second Edition

Susan Rose-Ackerman, Peter L. Lindseth and Blake Emerson

This volume, like the first edition, attempts to capture the complexity of the field of comparative administrative law while distilling certain key elements for further study. Part I concentrates on the relationship between administrative and constitutional law—uncertain, contested, and deeply essential. Part II focuses on a key aspect of government structure—administrative independence with its manifold implications for separation of powers, democratic self-government, and the boundary between law, politics, and policy. Next, Part III highlights the tensions between impartial expertise and public accountability, especially when the executive and independent agencies make general policies. Part IV discusses administrative litigation and the role of the courts in reviewing both individual decisions and secondary norms (‘rules’ in US parlance). Part V considers how administrative law is shaping and is being shaped by the changing boundaries of the state. Part V.A considers the shifting boundary between the public and the private sectors, and part V.B concentrates explicitly on the European Union and its complex relationship with the Member States.

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Alfons Bora

This chapter introduces in depth the scientific models and theories which have captured the idea of “shaping society” with their conceptual language. These scientific models are analysed from the perspective of the sociology of knowledge. The underlying intuition is that a deeper understanding of the respective semantics will also improve our comprehension of the social structures in the field. The semantics of governance captures a widespread contemporary description of the exercise of power and its legitimation. Governance is understood as a form of statehood mainly characterized by negotiation and co-operation, in contrast to hierarchical steering, rule-making, enforcement and sanctioning. To a certain extent, governance has turned the scales against the more traditional concepts of law and regulation, which bear some connotations of the nineteenth and twentieth century nation-state and have allegedly become rather outdated models of societal organization. Contrary to this widespread intuition within the governance debate, the chapter demonstrates that the perspective of law and regulation is still fruitful for conceptualizing the relation between the different fields and subsystems of modern society. While governance indeed expanded the analytical realm towards new instruments of control and the new actors involved in decision-making, it did so all the while preserving and even strengthening the idea of controlling and powerfully shaping societal conditions. The chapter therefore suggests recollecting the functional nucleus of “governance” within the terminology of “regulation”. Such a nucleus places particular emphasis on the “ruling part” of governance semantics which (a) remains deeply concerned with questions of exercising influence and (b) feeds to a large extent on legal sources.

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References

New Modes of Shaping Social Change?

Edited by Regine Paul, Marc Mölders, Alfons Bora, Michael Huber and Peter Münte

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Preface

New Modes of Shaping Social Change?

Alfons Bora and Michael Huber

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Regine Paul and Marc Mölders