Author of machiavelli.net, proud father of three, interested in shaping network society. Welcome to my blog.Lawyers in Public Policy
I spent all day yesterday in the Residenz in Salzburg, listening to amazingly smart Austrian, Swiss, and German government officials talking about how public administration is transforming. The event was organized by the Austrian Society for Public Administration.
If you follow this blog, you know that my assumption is that we are undergoing a radical change in how we imagine (from contract to network) and legitimize (from institution to outcome) the administration of the public. And you know that I argue that “contract society” was biased towards lawyers, because the know how to write-read-interpret contracts/constitutions/laws/etc. and that “network society” is biased towards entrepreneurs, because they can imagine, create, and talk about public value.
Remember, “all” German speaking high-ranking government officials are lawyers, educated in the continental tradition of law and therefore share a strong code-centered culture. Therefore, the inherently legal(istic) question of the day was, how are the civil service laws of Austria, Germany, and Switzerland transforming as we are moving towards outcome orientation (network society)?
Now, in theory (dogma in legal terms), all countries are undergoing a radical transformation. The classical idea of the civil servant (public law) is being questioned and the flexibility of civil law (cl) as the framework to regulate the relationship between the state and the civil servants is being evaluated. However, in practice, we can observe the following developments:
- In Austria, the evidence is mixed. Austria has had both civil servants and cl-employees for quite some time. In practice the distinction does not go along lines of function (core state functions vs. non core functions). After several failures with the introduction of objectives-based renumeration, some states are actually reneging on changes.
- In Germany, there was a change in the constitution (Art. 33 Para 5 GG and Art. 74, Para 1, N.27 GG) that modified the civil service guarantee and the spheres of influence between the federal government and the states. However, in practice this change has almost no impact and because of federalistic competition mobility of civil servants between the states is decreased.
- In Switzerland, a change has take place with the new Bundespersonalgesetz. It is mainly felt in introducing unlimited employment contracts (Swiss civil servants originally were political appointees for the duration of a government’s term), the capacity to fire employees, and linking renumeration to achievements. However, new challenges have not been dealt with both on the dogmatic (what happens when core state functions are taken up by cl-employees, how do we deal with non-compliance) and the pragmatic level (how do we deal with mobbing, constitutional rights, etc.).
In general, the move towards outcome-orientation in employment contracts did not have that many supporters in the room, which is not surprising because all participants were either government officials or Professors from public universities. The main critique was that because the objective of the state is not to maximize profit, having performance contracts makes no sense (is that a category mistake or a level-of-analysis problem?). The response of the vocal minority to this was that for most aspects of what most government employees do, objectives can be specified and performance indicators developed.
Another critique was that because not enough resources were available for performance incentives, in practice, bonuses where given out not for over-performance or were not significant enough to impact behavior.
Overall, more interesting than the substantive arguments was the style of arguing. Lawyers will always be lawyers, even if they speak about transformative change. And theoretically, there should be incommensurability between the legalistic-institutional contract society and outcome-oriented network society.
However, one should never underestimate lawyers, because they are very smart, know how to write and speak, and are pretty adaptive. In European public administration, network society is only imaginable, if driven by lawyers that have internalized outcomes into their text culture. It will be interesting to see, if this will be a performance culture that is legally embedded or a legal culture with a sprinkle of of outcome-orientation.
[pictures taken by Gregor Wenda(‘s camera)]
