Human Development, Law & Democratic Administration
June 5, 2000
Prepared for UNOPS ROMA
This paper analyzes the relationship between human development, law and democratic administration. It is argued that human development depends upon more democratic forms of public administration, which in turn depends on legal structures in place which make democratic administration possible. These structures include enforceable rights of participation in administrative decision-making, procedures to hold government officials accountable for their decision-making and an independent judiciary capable of preserving the rule of law. Democratic administration refers to structures which facilitate and accommodate citizen participation in the administrative process, and seeks to overcome and transform the traditional model of public administration, which is premised on impartial, detached, technical expertise. Through an examination of brief case studies of a legal clinic in downtown Toronto and an international exchange and training program for poverty lawyers, a project to establish vegetable gardens in rural Indonesia and a project to improve working conditions in an urban market in Uganda, the possibilities and limits of democratic administration will be considered. This paper concludes with a recommendation to support programs of legal and administrative reform which build upon and strengthen “interdependencies” between community members, community leaders, bilateral and multilateral donor countries, NGOs, and state officials at the local, regional and national level.
The 1995 Copenhagen Declaration on Social Development stated: “We are convinced that democracy and transparent and accountable governance and administration in all sectors of society are indispensable foundations for the realization of social and people-centred sustainable development.” The aim of this paper is to develop the theme of democratic administration, and to examine the legal environment necessary to its realization. I conclude by asserting that, so long as partnerships between the north and south are built upon local, national and international interdependencies, assistance and training programs might significantly enhance the capacity of countries to foster democratic administration, and the ability of democratic administration to enhance human development on a global basis.
In the 1990s, the term “democratic development” gained popularity to characterize international assistance programs which specifically seek to strengthen the protection of human rights and democratic institutions in recipient countries. By democratic institutions, advocates of this approach typically refer to legislative bodies elected by universal suffrage and characterized by freedom of the press, freedom of expression and freedom of assembly. While strengthening the institutions of liberal democracy remains a priority for many countries in the industrialized and developing world, recognition of the need for more democratic forms of public administration has been growing as a development priority both in the north and the south.
Democratizing public administration represents the next critical frontier for human development in the 21st century. For most of the world’s population, leaders and policy-makers are remote figures; tax collectors, police officers, welfare workers, clinic doctors and a host of other civil servants represent the human face of the state. The day-to-day decisions those public officials make determine the life opportunities and human potential of the citizens subject to their discretion. The promise of human development depends on the active and meaningful participation of individuals, families, social organizations and communities in their own governance.
Democratic administration requires a legal environment capable of elaborating and enforcing the rule of law, mechanisms of participation and accountability in government decision-making, access to justice and bureaucratic institutions free of arbitrary and discriminatory decision-making. While the challenges of democratic administration are faced in the industrialized as well as the developing world, the implications of regulating public administration has become especially significant for the prospect of human development in the developing world, as so many developing countries rely on the state sector to stimulate and manage social and economic growth. Additionally, public administration in these countries has come, and will continue to come, under increasing pressure to respond to market-based pressures and globalization.
This paper is divided into three sections. The first section will review the origin of the democratic critique of public administration. The second section will examine the legal environment necessary for the development of democratic administration, including participatory rights in administrative decision-making, avenues of accountability for government conduct, and a set of core legal values associated with elaborating and enforcing the rule of law in public administration. The case study of the Parkdale Community Legal Services clinic and the Inter-American Legal Services Association illustrate attempts to extend the benefits of these values to the most vulnerable of citizens. One of the central limitations of this model of empowerment, however, is that it may devolve into communities depending on the expertise and advocacy of outsiders in order to participate effectively in administrative decision-making. In the third and final section, this paper will explore a model of interdependency in furthering the goals of human development through democratic administration. The case studies of a “kitchen garden” project in rural Indonesia and an open air market project in urban Uganda will be discussed as examples of this model in practice.
Clearly, there is no single, correct approach to elaborating human development or entrenching its forms within legal and bureaucratic institutions. Participatory and accountability frameworks must be consistent with, and emerge from, cultural, ethnic, religious and socioeconomic contexts. Notwithstanding the need for local solutions, however, much can be gained through international cooperation and the exchange of information and experiences from legal and administrative professionals across national and international communities. This paper concludes with a recommendation to support programs of legal and administrative reform which build upon and strengthen “interdependencies” between community members, community leaders, bilateral and multilateral donor countries, NGOs, and state officials at the local, regional and national level.
2. The Problem of Democracy in Public Administration
The end of the 20th century has witnessed a new and challenging phenomenon of public administration. In an environment of scarce resources, increasing globalization and market penetration into areas previously reserved for public management, the state sector is being asked to do more with less. While this trend has had a significant impact on many advanced, industrial countries its potential for serious upheaval is more pressing in developing countries and those in transition. As the authors of a recent UN study entitled Rethinking Public Administration: An Overview observe:
Public administration has been at the centre of the unfolding crisis. Most public officials are attempting to unlearn the earlier lessons and strategies for national development. The context for the new strategies and thinking is one of scarce domestic resources and dwindling international aid resources. Pragmatism and flexibility are the hallmarks of the new thinking. Public administration is being asked, in effect, to “re-invent” itself and find more ways to do more with less resources. Structural adjustment programmes in particular call for reductions in current expenditures, including retrenchment of the civil service. Much of the initiative has fallen to international financial institutions because of “conditionalities” attached to aid and loan programmes. The result is that recipient countries have lost a substantial degree of autonomy to formulate and implement their own initiatives (United Nations, Division of Public Administration, 1998: 13).
This same study, however, notes that developing countries are
formally committed to the goals of strengthening national political and
economic independence, modernization of society through industrialization
and the application of new technologies, and the enhancement of participation
through public institutions. The key question is: how can the restructuring
of public administration accomplish these ends? A related concern,
of course, is whether these ends are mutually reconcilable. For example,
the technocratic model of public administration favoured in most of the
developing world (and the industrialized world) may be beneficial
for the goal of modernization but may be contradictory to the goal of increased
In order to appreciate the possibilities and challenges of democratic administration, it is necessary to understand the model of public administration as a largely if not exclusively technical undertaking that it seeks to replace. The notion of technical expertise in public administration is hardly new. The Mandarins of China, the intendants of France, the Prussian military, all serve as points along a historical and cultural spectrum leading toward greater centralization of bureaucratic management and differentiation of bureaucratic tasks. With the increasing complexity of administrative organization came the need for increasingly complex legal regulation. From the Napoleonic Code to the English common law, legal systems operated to ensure a measure of rationality in administrative action. This ideal type of rational-legal public administration, best articulated by Max Weber, has become the dominant ideology of bureaucratic organization and authority both in the industrialized and developing worlds. As Fred Dallmayr observes, “We are today the heirs - the reluctant heirs - of Max Weber ... It was Max Weber who, in the opening decades of this century, captured the path of Western society as a process of relentless rationalization geared towards greater efficiency - a process of which we are both the beneficiaries and the ... victims” (Dallmayr, 1994:49).
While Weber was explicitly concerned with “Western society”, he highlighted a variety of criteria which have been widely recognized across cultures, countries and societies as the hallmark of efficient and effective public administration. These include impartiality, neutrality, tenure of office, the provision of fixed salaries to officials, the organization of bureaucratic units along hierarchial lines, the regulation of entry and promotion according to merit, the regulation of operations according to general, consistent and abstract rules and, most importantly, the separation of administration from politics (Weber, 1947:328-40). Bureaucrats, under this ideal, are independent and beholden only to the duties of their office, not to any political master, interest group or affected citizen. This model of administration is concerned only with means, not with ends. Whether managing a network of hospitals or concentration camps, rational-legal administration aspires simply to greater efficiency. The reasons for the adoption of this model in many developing countries are complex. In some cases, the Weberian model is a reflection of the administrative structures established by colonial governments and simply maintained after indepdendence; while in others, international funding and banking organizations, together with international markets, have imposed implicit and explicit restraints on alternative forms of public administration, or forms more closely related to the socio-cultural environment of a particular country or region (Timsit, 1982; Riggs, 1994).
While this model of bureaucratic organization made possible the dramatic expansion of public administration into social and economic life which has come to characterize the welfare state in the industrialized world, and similarly made possible the dramatic modernization of much of the developing world, its success has come at the cost of meaningful participation by citizens in public life across diverse social and cultural contexts. As Eva Etzioni-Halevi concludes, “It follows that the very same superiority that has made bureaucracy so essential to modern society also poses a threat to modern democracy.” (Etzioni-Halevy, 1985:33) For those subject to its authority, rational-legal administration often appears as an “iron cage”, constructed, in Weber’s words, by “specialists without spirit, sensualists without heart.” (Weber, 1958:182)
Critics emphasize that Weber did not celebrate the triumph of bureaucracy, but rather was haunted by the spectre of bureaucrats assuming mastery of the state over both citizens and their political representatives, as experts manipulating dilettantes. (Etzioni-Halevy, 1985:32-35) Given the complexity, sophistication and volume of decisions which public officials are now called upon to make, the prospect of the politicians exercising any substantive supervision over the content of these decisions is remote. To address these democratic anxieties over the extent of bureaucratic authority, advocates of rational-legal administration have pointed to the functional distinction between politics and administration. According to this “politics-administration” dichotomy, politics is devoted to the development of laws, policies and public values; while administration is devoted to the technical and apolitical process or implementing those laws, policies and values. By improving technical methods through scientific refinement, administration could be rendered efficient, anonymous and mechanistic.(Taylor, 1947) In this way, bureaucracy was construed as a tool to be utilized by politicians for whatever ends they viewed as worthwhile; it would pose no more of a threat to democracy than a typewriter would pose to a writer. This view was embraced with particular enthusiasm in the developing world, where the state sector took a large and sometimes exclusive role in economic and social planning, and where scientific and technical advancement seemed to hold out the promise for a better life for millions of its citizens.
The attempt to distinguish politics from administration also had a democratically beneficial intent. The scourge of the nineteenth century had been the system of patronage appointments to public service by which large portions of bureaucracy were beholden to the partisan interests of the party in power. Patronage led to corrupt, wasteful and arbitrary public administration. Exchanging jobs for votes undermined public confidence both in democracy and bureaucracy. Therefore, emphasizing the technical nature of public service, the need for hiring and promotion according to merit, the development of training and education programs in administrative management, were designed to foster professionalism, and thereby to distinguish between the political and administrative spheres of government. Once again, this movement from patronage to merit-based public administration met with particular resonance in the developing world, where patron-client bureaucratic systems flourished both during and after the colonial period, and where, to this day, a bureaucratic post does not always provide a livelihood but more often provides access to a livelihood. (Gombay, 1999; 153)
There is clearly a western bias to the predominance of bureaucratic organizations whose core features are universalism and impersonalism. As Robin Theobald observed, these core elements “are unfamiliar, not to say alien, to many if not most of the societies in the world today.” (Theobald, 1990, p.8) In most societies, the personal relationship is the most important kind of bureaucratic relationship. If an individual needs a government service or seeks a government benefit, the individual will seek out a friend, relative, member of the same ethnic, religious or linguistic group in order to gain preferential access to the bureaucratic system. What is often dismissed as nepotism, favouratism and “corruption” in many western governments still constitutes the glue of many systems of public administration in Latin America, Asia and Africa. To argue that such complex patron-client networks can be easily replaced by a civic order premised by a merit-based, impartial public office is simplistic and untenable. However, many if not most of the governments whose public administration is built on personal networks have invested significant resources in curbing corruption. Indeed, in some countries, corruption dominates the political agenda, and has been cited as a principal justification for increasing democratization as well as internal military interventions.
Perhaps ironically, as the very moment many countries of the south are mobilizing to depersonalize public administration, many countries of the north are seeking ways to introduce a more human element into the interaction of citizen and bureaucrat. The rise of the “administrative state” in those countries in the postwar era witnessed rapidly increasing state intervention in health, welfare, education, social services and economic development. This led bureaucratic authority into virtually every corner of daily life. The unavoidably subjective judgments and unanticipated consequences of administrative decision-making rendered the notion of a “science” of public administration implausible. Legitimating public administration solely on the basis of technical and impersonal expertise simply exempted public officials from having to account for the important judgments they were called upon to make. Further, the hierarchical divisions of bureaucratic organizations (based on nineteenth century military models), which were designed to convey directions from the political masters at the top to the rank and file officials through to the bottom, made rational-legal administration cumbersome, inflexible and inefficient.
As early as the 1960s, a “human relations” school of bureaucratic management emerged, under which ideas were supposed to flow from the bottom to the top as well as the top to the bottom. (McGregor, 1960, pp.33-34) Eventually, a flood of new managerial theories, many imported from the private sector, began to erode the Weberian approach to administrative organization. These attacks on the orthodoxy of rational administration sewed the seeds for the emergence of democratic administration. (McSwite, 1997)
Recognizing the political content of administrative action, being open to bottom-up communication and valuing pragmatism all helped to create the conditions for the critique of public administration on democratic grounds to emerge. The infiltration of the state into new areas of social and economic life, and the resulting alienation of large segments of society from public decision-making, provided the fertile soil for this idea to grow. Bureaucracy soon became synonymous with remoteness and “red-tape”. The distance between citizens and public officials, which once had been seen as a prerequisite for good government and the avoidance of patronage, now appeared as a symptom of bureaucratic malaise.
In the industrialized world, bureaucracy became an easy target for the failures of the welfare state in the 1970s and 1980s. Whereas the civil service had once been seen as a vehicle for upward social mobility, attracting many of the finest educated, civic-minded professionals of the 1930s and 1940s, the expansion of the welfare state led to more reliance on centralization, new technologies and volume efficiencies. Clerical staff replaced social workers; inscrutable forms and regulations left little room for compassion; and citizens experienced bureaucracy more as a number than a person. In the developing world, the democratic critique focussed more on bureaucratic corruption and the absence of sufficient bureaucratic independence from political control. In both settings, however, the appeal of democratic administration lay in the possibility that citizens might gain knowledge about, and input into, the decision making of public officials.
3. The Legal Environment of Democratic Administration
What is meant by democratic administration? This term, unsurprisingly,
means different things to different people; however, in virtually every
case, citizen “empowerment” lies at its core. Citizen empowerment, in turn,
leads to two central critiques of conventional forms of bureaucracy: the
first critique relates to the issue of accountability; while the second
critique relates to the issue of participation.
The first critique asserts that bureaucrats are not sufficiently accountable to citizens for their actions and decision-making. When we speak of empowering citizens in a liberal democracy, we usually are referring to the ballot box. Political parties provide citizens with a slate of policy initiatives and claims to good government on the basis of which a party is elected or defeated; and, if that party does not fulfil its promises once elected, voters can turn them out at the next election. The Courts may provide another important institution of citizen empowerment by providing supervision of administrative action. Courts have the authority both to raise public awareness of bureaucratic wrongdoing, incompetence or malfeasance, and to impose remedies for affected citizens as well. Judicial review, however, depends on a citizen’s willingness and resources to challenge an adverse decision. This may occasionally lead to individual accountability but rarely to institutional accountability.
Advocates of democratic administration generally favour institutional reforms which would render the decision-making process transparent and subject to meaningful citizen review. This may involve more administrative officials being elected directly, more officials coming under the direct supervision of democratic institutions (for example, citizen boards, community groups, etc.), and more informal administrative settings where citizens can have decisions reviewed more easily. Further, advocates of accountability favour creating public sector markets which would allow for competition and choice in public goods and services without sacrificing public control and standards.
The second critique asserts that there is too little scope for
public participation in the administrative process. There is a pervasive
sense of powerlessness that citizens experience when adversely affected
by bureaucratic decision-making. This critique views democracy as more
than merely holding decision-makers to account for their decisions; rather,
citizens should have access to, and involvement in, decisions that affect
their interests or the public interest more broadly. A necessary catalyst
for this process of inclusion and transparency may be establishing and
enforcing participatory rights in administrative decision-making.
Participatory rights (sometimes referred to as “due process”, “natural justice” or “duty of procedural fairness” rights) are typically enforced through judicial review of administrative action and include the right to notice regarding potentially adverse administrative decisions, the right to know the criteria to be employed in administrative decision-making, the right to impartial and independent administrative decision-making, and the right to reasons explaining how the decision related to those criteria. The Supreme Court of Canada recently summarized the scope of participatory rights under administrative law in the following terms: “the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.”
While participatory rights ensure affected citizens may challenge adverse decisions, going to court represents an expensive, uncertain and inefficient means of developing participatory forms of public administration. Establishing a legal environment which protects the right to participate in administration decisions is not in itself sufficient to give rise to democratic administration. Citizen involvement in public administration will have little significance if it is not widely embraced through administrative practice (for example, by routinely engaging in community consultations as part of policy development and forming partnerships with community groups as part of policy implementation).
(c) Core Values of Democratic Administration
Democracy is a spectrum rather than as a threshold that is or
is not crossed. The issue is not whether to introduce greater accountability
and participation into administrative practices, but rather what degree
and dimension of such features are appropriate for various administrative
settings. Town-hall meetings, public hearings, community, interest-group
and stakeholder consultations and referenda all have been raised as possible
avenues of infusing public participation into public administration. However,
citizens may convey their input in less visible ways outside of state structures
as well. They may move from an area poorly served by public services (e.g.
hospitals, schools, etc) to an area well-served by them; they may evade
taxes or pay them; they may cooperate with the police or withhold information.
Democratic administration, whether seen as a reform project for increased accountability or increased participation, raises the same fundamental question, namely, how to transform people from the object into the subject of government. Core legal values which provide the legal and administration conditions needed for democratic administration to take root might include, but would certainly not be limited to, the following:
(1) The right of affected parties to participate in decisions
which may be adverse to their interests. These rights may be secured through
a variety of legal instruments. In some countries, these rights are
contained in particular statutes and civil codes, in the Constitution,
and/or in the common law;
(2) The obligation on government to institute procedures to ensure accountability for public decision-making through internal and external review. This obligation may be secured through legislation or through administrative practice. The key feature of this review, whether internal or external, is that it be undertaken by individuals independent of the political authority;
(3) A transparent public decision-making process. Transparency may include “sunshine laws” which guarantee access to government documents and records (while preserving confidentiality and legitimate security concerns), public information campaigns, and a practice of issuing written reasons for public decision-making;
(4) A transparent procedure for appointing judges and decision-makers. This may include open advertisements for positions, an independent panel to select applicants according to objective and publicized criteria, and legislated or institutionally developed conflict-of-interest guidelines for judges and all public officials;
(5) A constitutional commitment to the rule of law, which cannot be abrogated or overriden by extra-Parliamentary means. This usually but not always is accompanied by the formal separation of powers between the executive, legislative and judicial branches of government;
(6) The adequate provision of community development and mobilization services for citizens, including advocacy and legal services and, where appropriate, state- funded legal aid; and
(7) Adequate education, professional training, and skills
upgrading opportunities for public officials, including seminars, workshops
and exchanges which discuss issues of accountability and participation
in public administration.
While these values may easily be espoused, their implementation is likely to run into several obstacles. First and foremost, nearly all these values call upon states to limit their control over social and economic relations, at least at the local level. This may in turn render those states more vulnerable to a range of internal and international pressures. Second, making participatory channels available is no guarantee that they will be used effectively or equitably. Groups which already enjoy a privileged position in those societies may use such channels to reinforce and expand their privilege. Third, participation may expose those groups which do advocate change to potential harm if the legal environment does not protect those who challenge government policies. The absence of this legal environment encourages either passive acquiescence or contrived support for state policies. In short, many governments which explicitly engage in participatory initiatives do so solely to secure acquiescence or support. The always present danger of hollow or meaningless participation suggests that “bottom-up” strategies of participation in public administration stand a better chance of success than “top- down” models. However, as Mohiuddin Alamgir asserts in his study on “participatory development”:
Even a self-ignited process of participation will die a natural
death, however, unless inducements are provided on a sustained basis to
make the effort worthwhile... Genuine participation enables the poor to
tackle the poverty process from the inside. External assistance can only
facilitate the effectiveness of their own efforts (Alamgir, 1989: 7-8).
As a result of the obstacles which often prevent meaningful participation in public life, the role of advocacy on behalf of disenfranchised citizens has become increasingly important. Legal advocates may assist in launching legal action on behalf of vulnerable claimants, and also may serve as catalysts for community mobilization and public education campaigns. The development of legal resources for vulnerable communities which would otherwise have the least involvement in public decision-making is a key area both for domestic and international assistance and training, as the following case studies illustrate.
(i) Parkdale Community Legal Services: A Case Study in Training for Legal Advocacy and Community Activism
Because of the danger that partisan motives may undermine any
genuinely democratic benefit of programs designed to organize individual
or community activism in public life, it is often desirable for legal assistance
to the poor to be publicly funded but independently administered by public
entities at arm’s length from the government of the day. Universities are
an example of such entities. Universities offer not only the potential
to act as catalysts for democratic change, but also to bring together training,
education and social activism. Given the absence of a market incentive
for lawyers to take on such roles, the provision of legal services to vulnerable
citizens in Canada devolved to community legal clinics, funded by the government
through an arm’s length body. One of the first such legal clinics in Canada
was initiated and operated in Toronto by Osgoode Hall Law School, York
University (Zemans, 1997).
The Toronto clinic, known as Parkdale Community Legal Services Clinic, contributes to the core values of democratic administration set out above in three important ways. First, the Parkdale Clinic provides state-funded legal services to residents of one of the poorest sections of Toronto. These services include immigration and refugee assistance, tenant rights, workers’ rights, family and welfare law assistance, and, taken as a whole, empower vulnerable citizens to engage with the legal system in more effective ways than would otherwise be the case. A significant component of the Parkdale Clinic’s mandate includes community education and advocacy, including efforts to organize the community to advocate on its own behalf for everything from better municipal services to law reform.
Second, the Parkdale Clinic is itself run by the community through a board of directors chosen from among the residents and users of the Parkdale Clinic. Through this form of community management, the residents of the Parkdale neighbourhood are able to direct the legal clinic’s policy (for example, deciding whether the clinic should devote more resources to community education or more resources to courtroom services).
Third, the Parkdale Clinic is staffed by law students (and a supervising lawyer who is also a full-time faculty member at Osgoode Hall Law School, York University). The students receive credit for an academic semester spent entirely at the Parkdale Clinic, and for a seminar on law and poverty for which they complete original research. These students are confronted with practical and occasionally transformative experiences in reconciling the vast needs of the community with the limited capacity of law to address them. As one former Parkdale Clinic student has written, “One of the biggest impediments to facilitating increased participation of the poor in their own legal situations is the exclusivity and formalism of legal discourse.” (Robertson, 1997). For example, rather than dealing with the problem of the imbalance of economic and social power between landlords and tenants, poverty lawyers must try to find a section of a statute such as a Landlord and Tenant Act which might justify a court granting the tenant the relief sought.
While sharing skepticism regarding law’s ability to grapple with the complexities of poverty and disempowerment, Lucie White summarizes the “transformative potential of clinical legal education” in the following terms:
The kinds of change that such clinics [as Parkdale] have triggered is varied. At the top of the list of such changes is a new approach to the practices of legal advocacy through which these clinics have addressed the “legal problems” of individual clients. Through the “client-centred” advocacy that clinics like Parkdale have modelled, the voices of clients are respected; their material burdens are at least temporarily lightened; their understanding of the legal and political systems is deepened; and their sense of both solidarity and possibility is heightened. Through the community focus of these clinics, grassroots organizations have been strengthened, or indeed, given birth: multiple, intersecting networks have been formed - among groups like tenants, prisoners and their families, the physically and emotionally challenged, battered women, marginalized workers, AIDS survivors, undocumented immigrants. Through the institutional litigation of clinics like Parkdale, local bureaucracies have been challenged and reined in (White, 1997, p. 605).
Legal clinics such as Parkdale have also adopted selective representation
policies which reflect shared values about the nature of advocacy. Rather
than accept the image of lawyers as “hired guns” willing to take on all
clients, Parkdale has adopted, among others, a strategy of representing
tenants but not landlords, and acts for abused women but not their abusers.
This policy reflects the board and the students’ conviction that the legal
clinic should serve to focus on those groups that would otherwise have
difficulty obtaining legal services.
The development of legal resources for vulnerable communities which would otherwise have the least involvement in public decision-making is a key area for international assistance and training as well. NGO, bilateral and multilateral international cooperation may play a key role in building and strengthening legal advocacy in the developing world. Beginning in the 1960s, the "Law and Development" movement placed great emphasis on legal education and the provision of legal services as a major focus of aid. Adherents believed that legal education would train lawyers to use law as a tool for social change and thus advance development. Since 1978, the Inter-American Legal Services Association (“ILSA”) has organized internships for Latin American, Carribean and North American lawyers and law students to work in legal assistance sectors in Latin America and the Carribean. From its headquarters in Bogota, Colombia, ILSA has also sponsored conferences and workshops on the legal issues facing these countries, and published a journal on law reform and human rights in the region. ILSA developed its own unique approach to harnessing legal institutions in the cause of human development. Rather than adopt the traditional “access to justice” model, ILSA embraced the more expansive model of “alternative law”. Alternative law encompasses a range of legal services outside the framework of simply taking cases to court, including alternative dispute resolution through “neighbourhood courts” and lobbying public policy decision-makers.
Just as Parkdale seeks to avoid “controlling” clients through the lawyers’ knowledge of the legal system, the mandate of ILSA similarly seeks not to impose a particular vision of law on recipient populations, but rather to adapt a range of legal strategies to local circumstances, in order to further human development and to protect human rights. ILSA’s approach is based on a framework of interdependency between universal legal norms (e.g. due process rights) and local practices, which recognizes that all legal institutions help to shape, and are shaped by, a range of internal and external factors.
Both the example of Parkdale and ILSA demonstrate how law may be deployed as a vehicle for pursuing democratic administration. In both cases, lawyers are used as intermediaries in order to enhance the capacities of vulnerable citizens against the state (and, to some extent, the market). However, lawyers will always know the legal system better than their clients, and using legal advocacy to attain genuine democratic empowerment may create situations where vulnerable citizens are simply told what is good for them by well-meaning elites. This may solve individual instances of egregious injustice, but cannot change the social, economic, political, or even the legal structures which make such injustice possible and inevitable. To achieve such broader transformation, the dependence on advocacy must be replaced by structures of interdependence.
4. Interdependency and Human Development
As with legal institutions, public administration increasingly
is caught in a web of local, national and international pressures from
which it cannot and should not be insulated. Ethnic, linguistic and religious
identities are growing in importance just as globalization integrates every
corner of social, political, economic and cultural life. State systems
which are adaptive, resilient and innovative will thrive in this environment,
while state systems which are rigid and resistant to change will break
down. The most promising method for restructuring both within and
outside bureaucratic units is to foster interdependencies.
Traditionally, states have confronted a limited choice in terms of administrative models between a neutral, meritocratic, scientifically trained technocracy on the one hand, and a politicized or corrupt patron-client model on the other. Development in public administration was often evaluated as the extent of the movement away from politicized models and towards the technocratic model. Legal institutions were seen as necessary in order to legalize, and therefore depoliticize, administrative relationships and to foster the development of rational- legal administration. These institutions often bore little resemblance to the social, political and cultural settings of the population subject to their authority.
Interdependency allows for technical expertise to be valued and encourages training for this end, but subsumes concerns for efficiency and technical effectiveness within these broader settings. In other words, under this approach, technical expertise must be evaluated and implemented within frameworks of participatory policy-making. Just as with the separation of powers between executive, legislative and judicial branches of government, interdependency is a model intended to deter the concentration of power or knowledge within one agent of development. Interdependency entails close and ongoing relationships between state officials, NGOs, community leaders and community members, both in setting development goals and in achieving them. This model requires centralized planning to ensure equitable standards and coherence at the regional, national or international level (depending on the circumstances), but decentralized administrative and community decision-making with respect to local implementation. The following two brief case studies illustrates the rationale for, and benefits of, the interdependency model.
(a) The Kitchen Gardens of Cipari
NGOs and development agencies from donor countries may provide
a key resource in the process of bureaucratic renewal in developing countries
in two ways: first, by supplying expertise and resources in the field of
public management and training; and second, by providing examples of participatory
administration in example.
An example of this approach is the “kitchen gardens” project involving the West Javanese village of Cipari in Indonesia. NGOs had identified the need for small household gardens in this region as a response to the scarcity of arable land and a growing population. This project was also envisioned as a means of providing the women and girls who would tend the kitchen gardens better nutrition and increased autonomy over their families’ food supply. The development of the kitchen gardens project, however, could not be imposed on participants. While international cooperation provided funding and expertise for the project, the first precondition for the kitchen garden project was establishing effective communication between the affected communities, the government and NGO officials. Only with the consent and active collaboration of community members and community leaders could the project succeed.
The participants in this project further realized that the capacity to adapt to change may not be evenly distributed in the community. Therefore, the organizers of the project insisted on identifying a “female cadre” drawn from the village to provide training, support and technical assistance to the various households in their neighbourhood. Indeed, the project’s success owed largely to the extent and depth of the involvement of this leadership core within the community. What the women grew in the gardens, where they grew it and how they grew it developed out of ongoing formal and informal discussions between all the various constitutencies involved.
In explaining the success of the kitchen garden initiative in Cipari, one of the University participants identified the following factors: (1) the project was begun after an extensive period of research which allowed ouside agents of change to gain an intimate knowledge of the local context; (2) the strategy of introducing change was carefully designed between the participating University, NGO, government officials and local leaders; (3) the approach left room for innovation at the local level; and (4) the outside agents of change, and funders of the project, remained flexible and willing to adapt to local priorities. What the Kitchen Garden project illustrates is that, despite significant obstacles, international collaboration in training and advocacy can strengthen democratic administration and substantially enhance progress towards human development.
(b) The Markets of Owino
One of the key problems with collaborative projects of this kind
is the degree to which social and economic life takes place through informal
and underground channels. In her study of the Owino Market in Kampala,
Uganda, Christie Gombay noted that, despite working long hours in difficult
conditions, the market vendors had established 30 soccer teams, dance troupes,
benevolent societies, commercial and security training programs and so
forth, in addition to a Market Vendors Association, whose main function
was to foster a positive working environment between the vendors and the
Kampala City Council. This relationship took on added importance
following the World Bank’s First Urban Project, which allocated US$38.7
million to support the development of decentralized local, urban management
in Kampapa and to augment the capacity of the Kampala City Council. At
the same time, market developments in the informal economy, which led to
a shadow, unregulated evening market on the grounds of the Owino Market,
underscored the need for cooperation between the city officials and the
Gombay analyzes the political and social activities of the Owino market from a “political settings perspective”, which seeks to understand the “venues, occasions and situations” through which political activities are structured (Barker, 1999; 32-33). As the market vendors began assuming more and more previously government functions, an informal, market court was established to resolve commercial disputes. Meetings of the case-solving meetings were held irregularly and managed to deal with approximately 20 cases in about 45 minutes. The meetings were held in the open and the public could attend. An older woman with well-known oratorical skills was designated as the “leader” and resolved most cases on her own. In more complex matters, other vendors were invited to offer their suggestions. The outcome of these more complex matters was recorded in the minutes of the Market Vendors Association.
While the state was content to let the market vendors resolve their own conflicts at their own cost, a different view was taken on criminal matters, over which the police was not prepared to cede control. To facilitate cooperation between the police and the market administration, law seminars were offered which provided information on how security around the market could be strengthened, and emphasized the need to call in the police at the first sign of trouble. Vendors, for their part, used these meetings as occasions to criticize police conduct and the mishandling of cases. These lines of communication both clarified the nature of cooperation between the city government and the markets and resolved tensions on both sides. As Gombay concludes,
With the lens of the political settings approach focused on Owino market, a large, disorganized mass turns out to be a highly sophisticated and organized entity with an extremely articulate and subtle approach to politics and regulation... By looking for, and engaging with the politics of everyday life, local governments can deal more effectively with improving their cities. (Gombay, 1999: 181)
The case studies of the Kitchen Gardens of Cipari and the Owino Market of Kampala demonstrate the complex interaction between local dynamics, bureaucratic resources, and international development initiatives. In both cases, those initiatives worked best in environments where local actors were given sufficient autonomy and resources to find local solutions.
Conclusion and Recommendations
As the participants in the Copenhagen Declaration recognized:
“empowering people, particularly women, to strengthen their own capacities
is a main objective of development and its principal resource. Empowerment
requires the full participation of people in the formulation, implementation
and evaluation of decisions determining the functioning and well-being
of our societies.” This paper has explored the dynamics of democratic
administration as the next frontier of human development.
If rational-legal administration will lead to the “the trains to run on time,” democratic administration will lead to passengers and communities having meaningful input into the time of departure, the choice of destination and the quality of the journey. Once the paradigmatic shift to democratic forms of administration occurs, broader social transformation is made possible. As Gerald Frug puts it, “[T]he term `participatory democracy’ does not describe a fixed series of limited possibilities of human organization but the ideal under which the possibilities of joint transformation of social life are collected” (Frug, 1984:1296)
Several recommendations emerge from this analysis and are consistent with the human development approach of the Copenhagen Declaration:
ÀÀ support for exchange programmes for public administrators from the north and the south to share experiences and compare developments in the fields of participation and accountability in administrative decision-making, especially with respect to administrative decision-making over vulnerable communities;
ÀÀ support for exchange programmes between community activist and poverty lawyers to learn new approaches and strategies for deploying the legal system as a vehicle for attaining greater participation in the administrative process;
ÀÀ support for conferences, networks and symposia where community leaders from the north and the south can meet and learn from diverse “experiments” in local democratic administration. Such meetings should also include public administrators, NGOs, bilateral and multilateral agencies and other potential participants in “interdependent” administrative initiatives;
ÀÀ support for a global study on the legal and bureaucratic environments most conducive to democratic administration and to nurturing “interdependency”. Such a study might lead to an “index” or other indicia for comparing the progress various countries are making toward genuinely participatory administration; and
ÀÀ support for further community-based research on the
link between democratic administration and human development, particularly
with respect to gender.
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Selected Annotated Bibliography [unfinished]
Lineberry, William, 1989 Assessing Participatory Development: Rhetoric vs. Reality, Boulder, Westview Press in Cooperation with the International Fund for Agricultural Development.
This collection of essays was published in cooperation with the International Fund for Agricultural Development (whose mandate is the increase of food production and the alleviation of rural poverty in developing countries). This study seeks to assess a range of agriculture related, participatory development strategies. Essays examine the effect of structural adjustments on the rural poor in Africa, rural investment strategies in Latin America, the plight of rural women in Ghana, among other settings, and in each essay, the author defends the importance of community participation in the success or failure of development initiatives.
A Different Kind of State, edited by Greg Albo, Leo Panitch and David Langille Toronto: Oxford University Press.
This collection contains twenty short papers on the theme of democratic
administration and transforming the state to become a vehicle for popular
sovereignty. As Leo Panitch, one of the editors and one of the organizers
of the 1991 conference of the same name from which the book emerged, states,
the purpose of this research is not to argue for a bigger or smaller state,
but for a “different kind of state”.The collection contains theoretical
reflections on the nature of democratic citizenship and the need for, in
the words of Hilary Wainright, “a new kind of knowledge for a new kind
of state”. The book also contains short case studies, analyzing the achievements
and limitations of participation in policy and regulatory settings as diverse
as child welfare services, public sector unions, and resource management
on aboriginal land. The collection is perhaps overly upbeat, heralding
the start of the 1990s as a “point of departure in political time” that
would witness the rise of genuinely democratic administration from both
within and outside government. While some of the papers resemble sketches
more than in-depth studies, taken together they represent a unique snapshot
of democratic administration from diverse vantages and using different
lenses. This collection represents the first Canadian study devoted to
examining democratic administration and remains a touchstone for the emerging
Canadian literature on this topic.
Langdon, Steven 1999. Global Poverty, Democracy & North-South Change Toronto: Garamound.
One of the concerns of Langdon is the participation of the North in the ongoing and increasing impoverishment of the south. Analyzing globalization and democratization from a political economy perspective, Langdon concludes that the mega-projects which characterized development and modernization in the past (often with major investment from eveloped countries) has exacerbated economic and social collapse. In their stead, new community-based movements and “empowerment-oriented” policy approaches provide “hope of seriously countering the prevalence of poverty”. With a view to nurturing and expanding such movements, Langdon provides an excellent analysis of the shift in Canadian funding (principally CIDA) away from infrastructural program and towards supporting democratic institutions and fostering human rights.
Barker, Jonathan, 1999. Street-Level Democracy: Political Settings at the Margins of Global Power, Toronto: Between the Lines
This collection of Barker’s essays, along with other contributors,
begins from the premise that democracy is as much about place and space
as it is about institutions and laws, and that one can see its complex
dynamics better up close than from a distance. In this vein, global change
is analyzed from the perspective of local action in settings which range
from urban Africa to rural India to Pakistan, Nicaragua, the United States
and the United Kingdom. In these various case studies, the contributors
attempt to “map” local politics by observing meetings, conducting surveys
and analyzing “activity settings”.
Sossin, Lorne 1996 “The Administration and Criminalization of the Homeless: Notes on the Possibilities and Limits of Bureaucratic Engagement” 22 N.Y.U. Review of Law & Social Change 623-700
Studies of bureaucratic interaction with citizens, even vulnerable
citizens, usually presupposes that citizens are seeking some benefit from
the state, or at least discharging a burden. In the context of the homeless,
however, it is the state which must seek out the citizen. This poses a
complex and challenging environment for a study of bureaucratic engagement.
The study posits that administrative discretion is necessarily subjective
and therefore should be purposive as well. Public officials, in other words,
should not aspire to be neutral technocrats but should involve themselves
in the life and citizens in positive ways. The homeless often need far
more than simply a home; this may include welfare and disability benefits,
education and health services and other government programs. Such life
histories are difficult to abstract onto a form. Through sketching a “framework
of engagement”, I attempt to formulate a basis for administrative action
that treats discretion as a discursive action, a form of communication,
and which requires officials to justify their decision-making in normative