8 Bureaucracy 9 Courts

1. 8 Bureaucracy9 Courts

2. Bureaucracy, It Goes to Eleven • Many of us find interacting with bureaucracies to be frustrating • Why? • Not because they are flawed • Rather, it has more to do with their ideals of strict adherence to rule-based actions

3. The Bureaucracy • What functions do bureaucracies serve? • Bureaucracies serve many functions; they regulate, license, procure, distribute, observe, preserve, encourage, police, study, and manage. • Can you think of any examples? • The Postal Service (USPS) delivers the mail, the Internal Revenue Service (IRS) gathers revenue, the National Science Foundation (NSF) funds research proposals, the Immigration and Customs Enforcement (ICE) police the borders, etc.

4. Do We Really Want Bureaucracies? • No. • But, bureaucracies are indispensable • Bureaucracies take on functions that would waste the time and effort of elected and unelected leaders • Bureaucracies do pretty much everything that actually gets done by government • This is true regardless of the form government takes (democracy, theocracy, monarchy, or whatever)

5. The Ideals of Bureaucratic Governance • The German sociologist Max Weber (1864–1920) recognized that modern nation-states needed professional bureaucracies • He argued that the ideal bureaucracy should be efficient and rational • It should function like a machine, with each of its parts playing a well-defined role

6. The Ideals of Bureaucratic Governance • What are some of the critical elements of bureaucracy? • Rules administered impersonally • Clear Organization and Assignment of Roles • Professionals hired and promoted on the basis of merit • Hierarchy

7. The Ideals of Bureaucratic Governance • Why do we need all of these elements? • The ideal of rule-based decision making is to protect less powerful and influential from those with more power and influence • To make sure everyone is treated the same

8. The Iron Triangle • Elected leaders typically have little interest in exerting the effort necessary to monitor and control bureaucracies • In contrast, the interests groups directly affected by the bureaucracy have a great deal of interest • This can result in an iron triangle formed by bureaucracies, interest groups, and the relevant congressional committee(s)

9. The Iron Triangle • The bureaucracy can be “captured” so it focuses on the needs of the interest group rather than the public interest • These iron triangles can be very powerful and all but impenetrable by outside actors • Are bureaucracies and democracy compatible? • The vast majority of agencies perform quite effectively in the democratic context

10. Responsive Bureaucracy • Agency Theory or the Principal-Agent Model asserts that bureaucracies work like contractors to the legislature • argues that monitor their own behavior to avoid negative attentionThe Cockroach Theory of Democracy

11. Symbols • What kind of symbols do you find in courts? • the judge's robes • the gavel • ornate courtrooms • the raised platform • the Bible • the flags and the ornate government seals • Why? • To increase their authority and to encourage people to believe that something other than politics is happening

12. Legal Systems • All judicial functions are shaped by the legal system of that country or jurisdiction • The law is not just the law; it is a social construction • There are three legal systems that are commonly used: • the civil law or code law system • the common law system • the religious law system

13. The Civil Law System • Based on the proposition that law is a codified entity constructed by a legislature • Because this system relies on written law, it tends to be more specific, more easily understandable, and easier to apply to particular cases • Utilizes an inquisitorial system • This is a prolonged pretrial investigative process, in which all courtroom participants participate, with the goal of protecting the innocent • Common in Continental Europe

14. Common Law • System that evolved in England in which judges base their decisions on custom and precedents, i.e., past judicial decisions • The doctrine of stare decisis—Latin for “let the decision stand”—is very important • The law developed essentially as judge-made law • As time went by, other types of law, like equity and statutory law, supplemented the judges' common law • One of the main components of the common law system is the adversarial process • Which system do we use in the U.S.? • The distinction between common law and civil law is a bit simplistic; there are places (i.e. the U.S.) that mix elements of both

15. Religious Law • Religious law is most common in Islamic countries, where it is based on Sharìa or Islamic law • Unlike civil and common law systems, Sharìa is comprehensive in that it governs every aspect of religious and secular life. • Sharìa is primarily based on rules from the Koran • For those with intense religious convictions, it is obligatory to follow Sharìa, even if it is not acknowledged by the state • While some nations’ justice systems are based entirely on Sharìa, most countries are mixed systems

16. Jurisprudence • A jurisprudence is a philosophy of law • Why we have laws for certain norms • There is a wide array of types of jurisprudence • There are three main schools of jurisprudence have vied for dominance in the United States: • natural law • positivist jurisprudence • sociological-realist jurisprudence

17. Natural Law • Natural law presumes that there is some higher law, which is discoverable by the use of reason • i.e. A natural sense of justice • Important in the United States, “we hold these truths to be self-evident…” • What kind of potential problems might there be with using rationality to decide what is just? • People are rational; but they can do irrational things • What seems rational at one time may seem perfectly ridiculous at another • Two seemingly rational people can reach very different conclusions • How do you prove that something is a part of natural law?

18. Positivist Jurisprudence • Law is simply the command of the recognized sovereign authority of the state • Under this theory, judges apply the law of the state to the particular facts using logic • It is very important for judges to be well versed in case law and relevant precedents so that they can reach the logically correct decisions • There is one right decision that can be found through strict adherence to the procedures and processes of the courts

19. Realist Jurisprudence • Begins with a sociological critique of the law • View the law in terms of the behavior of the legal actors (police, judges, prosecutors, attorneys, juries, etc.) • Legal actors have a tremendous amount of discretion in making decisions • These decisions reflect the motives and logic of the legal actors

20. International Law • International law does not exist in the same sense that there is law within a country • International law refers to conventions and agreements that govern behavior between nations • In reality, international law only exists to the point that there is a country or a coalition of countries with the power and the will to enforce a rule or norm of behavior • There is no effective world government with the power to create and enforce law globally