There are three aspects of the readings that probably went involuntary unnoticed by the class last night. Regarding the Rule of Law, we should also remark that: first, as long as the authors consider the so-called craft and culture within a chapter devoted to the Rule of Law, it may be relevant to identify –concisely- the source and the scope of the jurisprudential thought in the United States; Likewise, as they look briefly at an historical institutional process, perhaps we should give more attention to it; finally, There is a cogent perspective in Lynn and Hill’s argument about the relevance of how those aspects are exceptionally related to the Institutional engineering and Institutional design. The following paragraphs are intended to articulate part of my understanding of the readings that I thing were absent.
Although Lynn and Hill only describe the Rule of Law in terms of the influence it has on public management, the argument makes an important point by mentioning that “much of discretionary actions may be oriented toward community values, guided by policy preferences of superiors, influenced by interests of particular constituencies, or reflection of conscience…” (Lynn and Hill, pag 92). Certainly, most of that assertion appeals to the professionalism of the manager who must confront policy issues. Furthermore, the authors state that “although the concept of the rule of law is pervasive in public management, the necessity of managerial judgment and an active role for managers in policy-making are not thereby extinguish” (Lynn and Hill, pag 91). In that quote, “the necessity of managerial judgment” means that the manager should have had the opportunity to form a previous understanding either of public affairs and the law or the Rule of Law itself. Thus, what must be the content of that understanding or judgment? What should that idea of “active role” make reference to? My hypothesis would be the two principles of justice embossed at a very influential book entitle “Theory of Justice”. I have always thought that John Rawls’ ideas represent the social contract of modern United States: a cogent conciliation between rights (rule of law) and economic culture (capitalism). Perhaps, there is an answer for what the authors call “managerial judgment” overlapped by the meaning of the concept Rule of Law.
The entire concept of Rule of Law brings us to a deeper debate that is twofold. First, it brings us to the question about the path that the State in this nation has followed throughout history; and second, it brings us to the definition of the institutional outcomes that govern this country. Regarding the history of the State, Lynn and Hill assure that in the nineteenth century most state level constitutions were unconcerned with the balance of power. Allegedly, power in those constitutions was “intentionally concentrated in legislature” (Lynn and Hill, pag 97). Therefore, if we look at the long term of the state institutions in US, it would be easy to find a political transition that allocates power throughout the time and institutions differently. It means that the democracy in US has shifted its nature within the three branches of the State, from being a representative democracy toward being a democracy governed by the law. In other words, it has had periods of legislature’s leadership, executive’s leadership and now US is maybe facing a Court’s leadership. The desired “check and balance” of the founding fathers may have found its final antithesis in the Rule of Law.
Beside the overlapping and pervasive nature that the Rule of Law has on public management, there is also an especial concern regarding how Congress influences agencies’ behavior. This means building a bridge between Lynn and Hill’s argument and Wilson’s. Focusing on Congress and the Rule of Law allow us to make a point about corruption within agencies –perhaps, not American agencies. However, what Wilson points out by considering American Congress is that certain institutional arrangements may prevent pork-barrel politics. The author mentions that government increased functions, national representation prevalence over geographical representation, lobbyist in Washington and the growing participation of a non-governmental sector, have helped to reduce pork-barrel politics (Wilson, Pag.242). Wilson’s example on Social Security administration reveals the outcome of that combination of factors which led the agency to have a technical approach in adopting the appropriate measure on what it does. Measures and formulas are instances of how the influence of Congress over agencies has been displaced. Nonetheless, where was that influence displaced to? Who does influence the Congress and the Agencies now? The author (Wilson) suggests that displacement has been toward private interest represented by lobbyist in Washington. However, it does not matter the place or the source of external influences in agencies. On the subject of Rule of Law both ways erode it and both ways erode the performance of any agency. As the definition of the Rule of Law states: Government must be accountable under the law.