Explaining judicial reform outcomes in new democracies: The importance of authoritarian legalism in Argentina,Brazil, and Chile

Recent judicial reforms after democratic transition have been substantial and relatively successful in Chile, but much less so in Argentina and Brazil. This article traces this variation in outcomes to the legal strategies of the prior authoritarian regimes. The Brazilian military regime of 1964–1985 was gradualist in its approach to the law, and had a high degree of civilian-military consensus in the legal sphere. It was not highly repressive in its deployment of lethal violence, and this combination of factors contributed to a gradualist and consensual transition in which judicial reform was not placed high on the political agenda. The Argentine case of military rule between 1976 and 1983 was almost the opposite. The military sidestepped and even attacked the judiciary, engaging in almost entirely extrajudicial violence. This generated a “backlash” reform movement after the transition to democracy that was mostly retrospective and only partially successful. In Chile, in contrast, the military engineered a radical break with previous legality, engaged in violent repression, but made considerable efforts to reconstruct a judicial order. It was in the aftermath of this situation that reformers were able to push through a prospective and relatively successful judicial reform. This article's findings suggest that judicial reform may be more likely to succeed where the prior authoritarian regime was both repressive and legalistic, as in Chile, Poland, and South Africa, than where high degrees of repression were applied largely extrajudicially, as in Argentina, Cambodia, and Guatemala, or where the authoritarian regime was legalistic but not highly repressive, as in Brazil, Mexico, and the Philippines.     

十八届四中全会司法改革新举措之解读

党的十八届四中全会《决定》明确了一系列司法改革新举措,对司法体制改革作出新的重大部署。最高人民法院设立巡回法庭,探索设立跨行政区划的人民法院和人民检察院,建立领导干部干预司法活动、插手具体案件处理的记录、通报和责任追究制度,从制度和体制上防范和禁止地方行政权力干涉,保障审判权、检察权依法独立行使;推进以审判为中心的诉讼制度改革,实行审判权和执行权相分离体制,探索建立检察机关提起公益诉讼制度,实行立案登记制,从司法权运行机制和职能定位上强化司法权威,促进公正司法,保障国家和公民权益。     

Adversarialism versus legalism: Juridification and litigation in corporate governance reform

Recent reforms of corporate governance law and related litigation rules in the US and in Germany indicate that reports of the spread of adversarial legalism are greatly exaggerated. Politics and legislation in the US since the mid‐1990s have turned quite decisively against shareholder litigation even as corporate governance and securities law reforms have expanded the role and scope of the regulatory state. Germany's extraordinary expansion of financial and corporate governance regulation since the early 1990s exemplifies juridification. Although these reforms included some liberalization of shareholder litigation rules, the changes reflected skepticism towards private litigation and imposed new constraints on the most prevalent forms of shareholder suits. Marketization of economic relations and the era of finance capitalism have produced far more legalism than adversarialism, more regulation than judicialization, and more ex ante transparency rules than ex post litigation remedies.     

Judiciaries as crucial actors in Southern regulatory systems: A case study of Indian telecom regulation

This article addresses regulatory reforms in the Indian telecommunications sector and emphasizes the role of the Indian judiciary. Our claim is that when confronted with a series of disputes relating to the nascent telecom regulatory landscape, the Supreme Court of India sought to make a constructive contribution to both the actual disputes as well as the overall regulatory framework. Our reading of these cases suggests that in the sphere of telecom, the Supreme Court has been less interested in stamping its own authority on issues, and has instead sought to bolster the authority and legitimacy of the recently constituted telecom regulatory institutions. We seek to draw attention to the role of the Indian judiciary as marking an exceptional feature of evolving regulatory systems in the Global South. Conventional wisdom in the regulatory jurisprudence that has evolved in the Global North suggests that judiciaries should have little or no role to play in regulatory systems. We suggest that to overcome the special challenges that regulatory systems in the Global South confront, more established institutions and actors might have to lend credibility and legitimacy to enable nascent regulatory actors to develop over time. At least in the Indian case, this is one way to understand the Indian judiciary's interventionist actions in the sphere of telecom regulation.     

Similar Ends, Differing Means: Contractualism and Civil Service Reform in Denmark and New Zealand

State sector reform was an integral component of the radical economic and social policy changes enacted by New Zealand governments between 1984 and 1991. This reform replaced the traditional tenured public service with a contractual regime. Through a comparison with Denmark, it is shown that New Zealand's reforms were not unique. Similar reforms were enacted in Denmark. But contrary to what occurred in New Zealand, the Danish reforms had already begun in the 1960s, and have since been gradually expanded. The parallel contractual regimes introduced in the two countries are accounted for by an increasing demand among politicians to secure a civil service that is responsive to political executive demands. However, because of institutional differences and diverging regulatory regimes, the strategic approaches in the two countries have been different. Whereas the New Zealand approach was dominated by an appeal to a coherent and sophisticated body of theoretical knowledge, combined with strict formalization, the Danish strategy has been based on political bargaining with the civil service unions. In both cases the reforms rest on critical assumptions regarding their positive and negative implications.     

Strategy and Accountability: Structural Reform Litigation and Public Management

Structural reform litigation involves legal action against public bureaucracies alleging that an official has violated the legal rights of an agency's client. A pattern of rights infringements raises the specter of systemic dysfunction. If the court finds for the plaintiffs, or if the defendant agency agrees to settle, the remedy reconstitutes agency operations. What are the incentives faced by public managers whose agencies are involved in structural reform litigation? How might public managers retain public accountability while strategically using the institutional arrangements present in such cases? This article examines these questions through a spatial bargaining model and discusses its analytical implications in the context of a comprehensive suit against the child welfare agency in Kansas City, Missouri.     

论我国涉外民事诉讼模式改革中的几个问题

改革开放以来,我国各级法院按法律规定,都进行了一系列国内民事诉讼的改革,但不尽人意的是,无论在理论界还是在实践中,都忽视了涉外民事诉讼程序的改革.本文就是从涉外民事诉讼的现状分析入手,探讨涉外民事诉讼的管辖权、翻译与律师制度、上诉与再审制度,以期对涉外民事诉讼模式的完善起到抛砖引玉的作用.     

Civil service reform in post-communist Europe: the bumpy road to depoliticisation

This article seeks to explain why civil service reform trajectories have differed in post-communist Europe, and why reforms have so far not led to the de-politicisation of personnel policy. It argues that the communist legacy of over-politicised personnel policy, the mode of transition and the constellation of actors after the first free elections shaped the personnel policy and civil service reform dynamics in the period directly after the change of regime. However, in terms of reform outcomes, the road to de-politicisation of post-communist civil services posed too many obstacles to lead rapidly to successful reforms. Neither governments of the left and the right nor new generations of senior bureaucrats have an incentive to engage in efforts to de-politicise post-communist civil services. The context of post-communist transformation has tended to lock in a pattern of civil service governance that is characterised by high levels of political discretion.     

Understanding the rise of the regulatory state of the South*

This paper, and the special issue it introduces, explores whether, and how, the rise of the regulatory state of the South, and its implications for processes of governance, are distinct from cases in the North. With the exception of a small but growing body of work on Latin America, most work on the regulatory state deals with the US or Europe, or takes a relatively undifferentiated “legal transplant” approach to the developing world. We use the term “the South” to invoke shared histories of many countries, rather than as a geographic delimiter, even while acknowledging continued and growing diversity among these countries, particularly in their engagement with globalization. We suggest that three aspects of this common context are important in characterizing the rise of the regulatory state of the South. The first contextual element is the presence of powerful external pressures, especially from international financial institutions, to adopt the institutional innovation of regulatory agencies in infrastructure sectors. The result is often an incomplete engagement with and insufficient embedding of regulatory agencies within local political and institutional context. A second is the greater intensity of redistributive politics in settings where infrastructure services are of extremely poor quality and often non‐existent. The resultant politics of distribution draws in other actors, such as the courts and civil society; regulation is too important to be left to the regulators. The third theme is that of limited state capacity, which we suggest has both “thin” and “thick” dimensions. Thin state capacity issues include prosaic concerns of budget, personnel and training; thick issues address the growing pressures on the state to manage multiple forms of engagement with diverse stakeholders in order to balance competing concerns of growth, efficiency and redistribution. These three themes provide a framework for this special issue, and for the case studies that follow. We focus on regulatory agencies in infrastructure sectors (water, electricity and telecoms) as a particular expression of the regulatory state, though we acknowledge that the two are by no means synonymous. The case studies are drawn from India, Colombia, Brazil, and the Philippines, and engage with one or more of these contextual elements. The intent is to draw out common themes that characterize a “regulatory state of the South,” while remaining sensitive to the variations in level of economic development and political institutional contexts within “the South.”     

Costs of Cooperation Rather than Competition in the Provision of Justice?

The civil law reforms starting in the USA and exemplified by Lord Woolf's reform package(1995; 1996) in the U.K. are considered in the context of diminishing legal aid and pressure on judges to become case managers responsible for the economic performance of their courts. The reforms are being sold in a package that promises a fairer system for all, greater access, cheaper and quicker justice, less stress and greater party control. This move from the welfare state to a civil society is analysed using Habermas's critical theory in an effort to uncover and debate its assumptions. Specific recent changes in civil procedure in Queensland are referred to in this context.     

Civil service and democracy: Questions in reforming the civil service in eastern and central Europe

The debate over public service reform is taking place at a time of flux when old models are being challenged everywhere. This article discusses issues of institutional transfer, as between western and east and central Europe, relative to civil service reform and democratisation. It presents several models to describe the place of the civil service in the democratic state and the implications of each for civil service organisation. It argues for a better balance between a legal approach, which tends to dominate advice coming from some continental European countries, and one which emphasises ‘good’ rather than just ‘correct’ relations between administration and citizens. This distinction is fundamental in so far as, under the UK Citizens Charter for example, the citizen is seen as a ‘customer’ rather than a mere ‘user’ of services he has no influence over. The article concludes that, given the differences in culture, political climate and economic situation of ‘recipient’ countries in east and central Europe, each must search for its own reforms, looking for questions rather than answers.     

The Politics of Crisis Management: Public Leadership Under Pressure by Arjen Boin,Paul 't Hart,Eric Stern,and Bengt Sundelius

ABSTRACT

The article addresses two principal questions: how public management reforms develop in a context of high government turnover, and how, under these circumstances, features of the specific area of public management policy affect the dynamics of the reform and in particular its “technical feasibility.” The research questions are addressed through the case study of the Italian administrative context between 1992 and 2007, a period marked by tumultuous government turnovers. The article presents reforms in two policy areas of public management: civil service reform and innovation, over a three-period time span covering 15 years. The brief duration of political leadership represents a threat to the approval and implementation of policy interventions irrespective of the political salience of the issue and the need for legal enactment. Therefore, the success of a public management reform process in an unstable political context characterized by frequent government turnovers depends on meeting certain conditions for successful policy entrepreneurship: the a priori expertise of policy entrepreneurs, their ability to repackage the issue, keep a community of practice alive, and maneuver the dynamics of the legal process. However, implementation, being a less visible phase, suffers from greater discontinuity as “maintenance activities” necessary for the success of reform are disregarded. Thus, the consideration of the temporal dimension of the policy cycle and the area-specific effects on public management reform dynamics exerted by diverse levels of political salience and legal enactment represent the main contributions of this work to the theories on public management policy change.     

我国政策执行中的目标扭曲研究——对我国四次公务员工资改革的考察

运用案例研究的方法分析了我国四次公务员工资改革的政策执行,基于2008年和2009年的一线调研,试图运用政策执行的理论评估在公共管理文献中很重要、但被忽略的工资管理事项.回顾了我国四次公务人员工资改革的特点和问题.在此基础上,重点分析了工资管理中的欠薪问题、工资统发和激励机制问题.结论是,有依赖关系的多部门执行是政策执行走样的原因之一.另外,工资管理中给一线执行人员的自主权也过于有限.从更大的层面来分析,本文提出一个今后研究公共政策可以深入探讨的问题:成功的执行应以政策文件所表述的内容为基础,还是以公共利益为基础.提出一些政策建议:从工资管理权来看,要改变工资管理多家分享的局面; 从决策过程来看,工资改革要吸收基层公务员的意见;最后,工资作为一项人力资源管理手段,要注意内部公平和奖优罚劣的双重功能.     

Trends in the Higher Civil Services of Anglo-American Systems

The managerial reforms that have been implemented in the public sectors of many countries over the past decade are part of an international trend (Aucoin 1990, 134). Managerial reform in public administration can be seen as a Zeitgeist , a pervasive idea whose time has come. As Caiden (1988, 354) points out, effective administrative reform can be sustained only by a "crusading spirit" or the burning flame of idealism, and such a flame has blazed up in the past ten years. History may well show that the managerial reforms of the late 20th century had as dramatic an impact on public administration as the merit reforms of the late 19th century.
These managerial reforms have invariably involved an emphasis on giving the public better value for money, and have usually included the introduction of efficiency measures and corporate planning techniques, the improvement of financial management procedures, the assessment of performance in terms of results against goals, the adoption of private sector human resource management practices, and the use of management information systems and other management tools. The implementation of such managerial reforms has typically been heralded by the establishment of a unified elite group of senior executives in the higher civil service. This paper reviews the recent trends in the higher civil services of America, Canada, Britain and Australia, and considers how they exemplify the managerial approach to administrative reform.¹     

Transitional Justice and ‘National Ownership’: An Assessment of the Institutional Development of the War Crimes Chamber of Bosnia and Herzegovina

In anticipation of its closure in 2014, the International Criminal Tribunal for the former Yugoslavia has begun to set out proposals for preserving and promoting its legacy of prosecuting persons responsible for violations of humanitarian law during the conflicts of the 1990s. A key aspect of this legacy has been to support the ‘national ownership’ of the justice systems in the former Yugoslavia that will continue to try war crimes cases in the years to come. This study explores the institutional development of the War Crimes Chamber of the Court of Bosnia and Herzegovina (WCC) to national ownership. In particular, it considers three critical aspects of the WCC's functioning that highlight the challenges that it faces as a mechanism of transitional justice in Bosnia and Herzegovina (BiH). These are the composition of prosecutors and judges, prosecutorial practices and outreach and communication activities. The article shows that the continued difficulties with these areas of legal practice figure as significant obstacles to the WCC's transition to full national ownership by both the legal professionals and local populace of BiH.     

Civil Service Law in the People's Republic of China: A Return to Cadre Personnel Management

Despite the outward appearance of depoliticization, the civil service in China today is actually being repoliticized. This paper compares the 1993 Provisional Regulations on State Civil Servants with the Civil Service Law approved by the Standing Committee of the National People's Congress of the People's Republic of China (PRC) in April 2005 . The 2005 reform formalized what had been a historical pattern—the Communist Party holds tight control over leadership change and management at various levels. The Civil Service Law has turned the Communist Party of China into a political institution that has become the source of both civil service empowerment and control. Although civil service reform in China differs markedly from approaches adopted elsewhere, China is clearly expanding its political control to ensure greater leverage over the bureaucracy. In this regard, China is in line with the global trend. That said, civil service reform in China has focused on structural elements and formal reorganizations, whereas most industrialized democracies have engaged in a dialectic between individualist and corporate responses to managerial questions. An understanding of the Chinese ability to adopt reforms—while strengthening its traditional hold—provides key perspectives not only on the world's largest nation and a rapidly emerging force in global political and economic relationships but also on the Chinese experience with important public sector reforms that have occurred in many other countries over recent decades.     

Public sector reform in the Latin American and Caribbean region—issues and contrasts

Public sector reform in both Latin American and Caribbean countries has become a high priority for governments in their search for a new role for the state. Common principles have included the objective to privatize, or contract out services or responsibilities where the private sector has a comparative advantage while at the same time improving government efficiency in areas that are considered core government functions at different levels of government. These include integrated government financial management, social security and social safety nets, tax administration, provision of basic services (education and health), legal/regulatory reform, and judicial enforcement. Guiding principles in all countries have been predictability, transparency and accountability. While the degree of reform has varied amongst countries, there are a number of distinguishing features of the Commonwealth Caribbean that set its public sector reform experience apart from that of Latin America. These include the legacy of a professional civil service, long-standing democratic institutions and an active civil society, the relatively small size of the countries, and the emphasis on rule of law that can help explain some of the differences in the reform paths taken. Nevertheless, government ownership and commitment to public sector reform has been shown to be the most important element in determining results within the Latin American and Caribbean region.     

Civil Society and the Legitimation of Global Governance

Abstract

This article assesses in what ways and to what degrees civil society activities have advanced the legitimacy of global governance institutions. It is argued that these citizen initiatives have often enhanced the democratic, legal, moral and technical standing of regulatory agencies with planetary constituencies and jurisdictions. However, these benefits do not flow automatically from civil society mobilizations and on the whole are much less extensive than they could be. With a view to greater realization of the potential contributions to legitimacy, the article elaborates recommendations for more, more inclusive, more competent, more coordinated, and more accountable engagement of global governance by civil society organizations.     

The Durability of EU Civil Service Policy in Central and Eastern Europe after Accession

This article examines the post‐accession durability of EU civil service policy in Central and Eastern Europe (CEECs). Civil service professionalization was a condition for EU membership but the European Commission has no particular sanctions available if CEECs reverse pre‐accession reforms after gaining membership. Comparing eight CEECs that joined the EU in 2004, the article finds that post‐accession civil service developments are characterized by great diversity. The three Baltic States continued civil service reforms, while Slovakia, the Czech Republic, Poland, and Slovenia are classified as cases of post‐accession reform reversal. The post‐accession pathway of Hungary is identified as a case of reform reorientation. The diversity in post‐accession pathways was almost exclusively the result of domestic political constellations, in particular, patterns of government alternation after accession. There were hardly any factors that could have locked in the level of professionalization that had been reached at the time of accession.     

我国刑事侦查程序改革若干问题研究

基于不同的侦查目的观将设计构建出不同特色的刑事诉讼侦查程序制度,我国的刑事诉讼侦查 程序制度应当是具有我国特色且符合我国国情的程序设计。对我国刑事诉讼侦查程序制度改革的理论研究 应当是建立在明示我国侦查目的观的基础之上,遵循我国法制建设的一般原则,全面考究我国的法律体系、 国情现状以及现行刑事侦查程序制度中所存在的问题而进行的具有可实现性的研讨。