Theory and Context Public Administration and the Rule of Law Essay

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Theory & Context: Public Administration and the Rule of Law

The purpose of this study is to integrate the arguments including the strengths and weaknesses of the works of Lynn (2009), Moynihan (2009) and Rosenbloom (1992) and to compare and contrast these works. Rosenbloom (1992) in the work entitled "The Constitution As a Basis for Public Administration Ethics" wrote that public administrators and government officials are under an expectation to "adhere to a variety of ethical codes and approaches. Insofar as these are consistent, can be learned, and are realistic, they present few difficulties for administrative practice. When codes or requirements are vague, however, unrealistic, and in conflict with one another, they complicate the issues involved in acting ethically under all circumstances." (p.49) The two primary ethical requirements for practically all of U.S. administrative history are reported as being those as follows: (1) refraining from the use of public property and/or office for purely private purposes or gain; and (2) avoiding waste of government resources. (Rosenbloom, 1992, p.49) It is reported by Rosenbloom that these principles were "widely violated" and most particularly from about 1829 to 1883 "when patronage was rife." (1992, p.49) During the 1970s a third dimension is reported to have been added to the public administration and officiators code, which is stated to be that of "constitutionally-based ethics." (Rosenbloom, 1992, p.49) There is some difficulty reported in this area as Constitutional ethical requirements "are difficult to apply, sometimes require an elaborate balancing of concerns, and are often at odds with traditional administrative values such as efficiency, and economy, and effectiveness." (Rosenbloom, 1992, p.49)

I. The Field of Public Administration

Moynihan (2009) writes that it is noted in the work of Laurence E. Lynn that "public administration took a wrong turn by following Leonard D. White, and focusing on management, rather than the example of Frank J. Goodnow, who argued for grounding the field in law. As a result, public administration became unmoored from constitutional values, swept hither and thither by the management fashions of the day. Thus the scholarship and practice of public administration lost its fundamental source of legitimacy." ( Rosenbloom, 1992, p.813) If one is to understand the way in which values are representative in administrative actions and analyses of scholars to legitimacy it is necessary that the historical context and the broader values be understood.

II. The Approach of Leonard D. White

Moynihan states that White's contextual approach to administrative history serves as an excellent guide. It is held by Moynihan (2009) that the contribution of White to public administration has been long overlooked as well as being "maligned and simplified." (p.814) White's work when carefully analyzed is such that illustrates the "broader theme that guides this essay, and an approach to understanding administration that the field could usefully incorporate" stated as follows:

"Every system of public administration is the product of many influences. Its form and content reflect its historical origin; existing patterns are a composite of practices and procedures both ancient and contemporary. No administrative system can be well understood without some knowledge of what it has been, and how it came to be what it is." (White, 1995, p.13 cited in Moynihan, 2009)

It is reported that the internalist approach is one that overlooks the effect of the environment and is a process "in which the process by which ideas evolve is characterized as a dialog within the academic community alone." (p.815) White states that the student of administration "must …concern himself with the history of his subject, and will gain a real appreciation of existing conditions and problems only as he becomes familiar with their background." (Moynihan, 2009) The importance between the historical context, contemporary challenges, and administration relationships are noted by White (2001) and cited in the work of Moynihan (2009).

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The later works of White are such that indicate his "preoccupation with the changing demands on the state.' ( ) It is reported that the view of White of the "practical role of the law in administration was…shaped by the context of the time." (, p.814) White expressed in regards to lawyer as follows:

"On the one hand, they are important and deserve a 'special consideration' because they "are always found at the right hand of the administrator whose actions must be legally defensible." ( ) White relates however, that the training of the lawyer, based on precedent, and looking backward rather than forward for guidance, is not a training which is suited to make an ideal administrator." (White, 1935, p.46)

Moynihan writes that the growing influence of the courts on administrators has created a more uncertain and complex legal framework for administrators to work within. This influence has grown, rather than declined." ( p.814) Because of this, it is reported that lawyers "have become increasingly important to bureaucracies." (Moynihan, 2009) Those who seek to reform the law hold that laws are "outdated and call for alternatives in the name of reduced transaction costs and greater performance." (p.817) Moynihan notes the problem that many times proposed legal frameworks are of the nature that are "often implicit, vague or inattentive to risks." (2009, p.817) Cited as an example is that of the Department of Homeland Security and stated is "This involved then President George W. Bush proposing the elimination of many protections of civil service without indicating what the new system would be like. There is generally strong resistance to changing the rules that govern the public sector.

III. Law: More than a Legal Framework

It is argued in the work of Lynn that law "must be more than a legal framework, Public administration's teachers and practitioners must 'bring the law in' by exercising the habit of 'thinking institutionally' about the rule of law." (2009, p.815) Thinking institutionally involves actors modification of their behavior to realize consistency with institutional values. (, paraphrased) Those who support legal values are reported to "frame them positively -- for example, as equitable treatment, due process and the protection of individual rights." ( ) Furthermore, when any legal value is given special treatment in relation to "any given value…the displacement of others…is the likely result. (Lynn, 2009, p.816)

It is reported that the function of law "is to minimize discretion" as stated by Rosenbloom "From a legal perspective, discretion is generally viewed as antithetical to the rule of law, potentially fostering tyranny and even evil." (2007, p.35 cited in Lynn, 2009, p.916) Also noted is that laws are oftentimes ambiguous and there is a question in regards to feasibility. Moynihan states hat law "should be the dominant administrative value, because it is the formal, most reliable, and enduring legitimization of public administration." ( p.818)

IV. Conflict Between Administrative Doctrine and Constitutional Law

According to Rosenbloom many real and potential conflicts exists between the administrative doctrine of American and Constitutional law. The example stated is that due process "is not necessarily the most efficient process; efforts to protect the public by excluding residents from state or local benefits may be contrary to judicially recognized Constitutional right to travel as well as to equal protection; and taking adverse action in the name of effectiveness against the public employees who engage in whistle blowing is likely to violate their right to freedom of speech." ( p.51.)

Rosenbloom states that public administrators who are "well-versed in traditional administrative values and whose administration action is correct according to those values, are nevertheless vulnerable to suits seeking damages from them for violation of individual's Constitutional rights." (1992, p. 51) Rosenbloom reports a close relationship existing between "many Constitutional rights and appropriate ethical.....

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