Judicial and Legislative Arms of Government

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The judicial and legislative branches allow the government to organize and perform the coordination and control functions important for a state organization. In general, a government is accountable to the freely expressed will of the people. Public discontent need not have a specific justification. Regimes of ordinary competence are also condemned and replaced simply because they become emblematic of bureaucracy or of a tiresome status quo: a convenient scapegoat for frustrated voters. Though seemingly promiscuous, this practice of change for its own sake is also to be expected. The resulting uncertainty of administration is an inevitable concomitant of our political practices and, it can be argued, the price we pay for long-term regime stability.

Popular contempt for government and its officers often occurs in understandable reaction to corruption, favoritism, and incompetence. Impatience with the dilatory nature of legislative and bureaucratic politics, or, alternatively, with hasty, ill-conceived acts, also fuels criticism. Reprisals against offending incumbents and parties at election time are logical expressions of these kinds of dissatisfaction. At any time, interest-oriented politics may lead to the deliberate creation of entrenched bureaucracies as a way of awarding political property rights to favored constituencies (Bouckaert & Pollitt 2004; Krieger, 2005).

Public choice frameworks, especially when they incorporate principal-agent theory, can prove highly suggestive of the kinds of dynamics that affect the ongoing shaping and execution of legislative mandates and that shape executive roles. It should be clear that accountability is, at best, a complex concept, highly dependent on political context and irreducibly discretionary. Legislators create imperfect or incomplete mandates (Scheduler et al 1999).

Thus bureaucratic agencies have substantial discretion to “complete” the process of making policy. While an agency’s employees may recognize and attempt to carry out a democratically sanctioned program, they may also pursue particular “bureaucratic” interests, although they may disguise this “undemocratic” activity as the legitimate exercise of expertise or neutral competence. In fact, agency employees, especially at lower levels, are in a strong position to pursue their own interests because of the nature of bureaucratic structures; information asymmetries and collective action problems inside an agency mean that control by legislators and top-level executives is necessarily imperfect and costly to improve. “Its existence shielded the member agencies from other kinds of external threats (gubernatorial intervention, legislative control) while not altering essential working procedures” (Wilson 1991, p. 269).

The role of the legislative power is to organize and support the government activities and practices. For instance, municipalities are authorized to adopt the state civil service act by referendum. If this is done, all positions (unless there is a fixed statutory term or the office is exempted by the legislature) in such county or municipality are placed under the merit system, and the examinations are conducted by the State Civil Service Commission.

Much discretion is given to the boards of freeholders in determining which boards or offices are to be established and which activities are to be undertaken (Bouckaert & Pollitt 2004). The local authorities are given discretion also in respect to whether the activity is to be performed as a county function or whether it will be done in cooperation with the municipalities, provided, of course, that the municipality affected agrees. The municipalities perform some governmental and service functions which are normally performed by counties. The administration of the public health program is primarily a function of the municipalities (Scheduler et al 1999).

The assessement and collection of all taxes is also a function of the municipalities. It is true that the county board of taxation serves as a local board of equalization for assessments made by the local assessors (Grieco & Ikenberry 2002; Jessop, 2007).

When the state bears part of the cost it has a right to insist that the money shall not be dissipated and that the standard of public service prescribed shall be attained. This goal is more likely to be achieved through administrative supervision than through legislation commands and prohibitions. Administrative supervision has an element of flexibility that legislation control lacks (Bouckaert & Pollitt 2004).

Again it is continuous and self-enforcing; it does not have to wait for some private individual to start a court action. Finally, it is generally characterized by an attitude of helpfulness on the part of the state agencies which prompts the local units to undertake to improve their administration from within (Krieger, 2005). Local governments in the United States enjoy more freedom of action than in most other parts of the world. Even so, the trend toward centralization in recent decades has been real and substantial. Granting its inherent dangers, centralization in government was as natural and inevitable as in other fields of human activity.

It is merely a recognition of the fact that in a motor age people circulate in a larger community, that the demands on government are greater, that the services performed are more complex and more costly, and that they are often beyond the competence as well as beyond the fiscal capacity of the local units to provide alone (Jessop, 2007). The limitations of space prevent any comprehensive statement here on the extent and types of administrative supervision throughout the country.

Great variations exist among the states, among types of local units within a single state, and in respect to different activities. These variations will become apparent in the case studies which follow. Even these will not fully reveal the great variety of administrative techniques which prevail (Wilson 1991; Turner, 2006).

The judges of the superior court hold court in the various counties throughout the state as assigned to them by the chief justice of the supreme judicial court. The superior court exercises jurisdiction over all jury trials and nisi prius terms. The supreme judicial court is the highest state court and acts as a court of last resort. The supreme judicial court and the superior court exercise concurrent jurisdiction in cases in equity and in proceedings in writs of prohibition, error, mandamus, quo warranto, certiorari, and habeas corpus. Judges of the municipal court are appointed by the governor and council for terms of four years.

In cases involving children under seventeen, the court acts as a juvenile court (Scheduler et al 1999). The trial justices exercise jurisdiction in minor civil and criminal cases throughout the state. In addition to being an appellate court, it has general superintendence of all courts of inferior jurisdiction. The full court sits to hear questions of law and a single justice for what is called a jury sitting. In the latter case there is a trial by jury on issues of fact in equity cases. This function of both branches is divided among numerous actors. Public management necessarily takes place within a larger domain of policies, institutions, and actors. The vantage point of any particular actor is necessarily incomplete, the range of influence limited (Wilson 1991; Molot, 2000).

The judicial and legislative branches, established under a state law, operate for the “furtherance of better county government” and the “protection of county interests” and are financed in part through appropriations of public funds by state boards. As interpreted by the courts, the clause continues effectively to bar the development of alternative forms of government organization. Each supply bill is drafted by the county’s legislative delegation and formally approved by the legislature.

For instance, the governor can veto the action of all other members of the county delegation. In those counties in which board members are appointed by the governor with the approval of the county delegation effective control is easily maintained by the delegation. Even in those regions in which the board members are elected control is retained by inserting a provision that certain funds may be expended only with the consent of the county delegation (Bouckaert & Pollitt 2004).

Thus the legislation delegation exercises the real power but is without administrative responsibility. There can be little doubt, then, that effective state management requires the consistent exercise of good judgment under the most demanding and disorienting circumstances. Each of the branches has left legacies: reorganization as a tool of leadership, incorporation of policy analysis into public policymaking, recognition of the budget as a policy document, and emphasis on program evaluation. Though the county serves as the basic unit for administering public welfare assistance, the program is not integrated (Scheduler et al 1999; Jessop, 2007).

In times of ascendancy or crisis, liberal and conservative parties both might advocate the strengthening of the executive, in effect delegating control of the bureaucracy to appointed officials if such delegations would strengthen party control over public policy. In times of virulent popular discontent with politicians, both liberals and conservatives might advocate antistatist reforms and accountability to the people (Bovaird & Loeffler 2003).

Critics of this rather conventional view argue that few bureaucrats in any agency at any level of government fail to perceive what is expected of them by elected and political authorities. Knowledge of these expectations, transmitted via a variety of formal and informal public-choice mechanisms, shapes bureaucratic cultures and behavior in subtle but unmistakable and strikingly effective ways. If bureaucrats occasionally seem intransigent, it is only because legislators are confused, divided, or inarticulate (Wilson 1991). Both judicial and legislative branches perform some duties in connection with the administration of state functions.

For instance, the justices of the peace, as judicial officers, hear minor civil and criminal cases, for which they are paid on a fee basis. Such work is usually performed by one or two justices. It had long been customary for some of the justices to consider themselves primarily as members of the board, and so a few years ago the law was modified to recognize the practice (Bovaird & Loeffler 2003; Krieger, 2005). The division examines and approves budgets and is authorized to see that provision is made for the payment of the interest and principal on debts and that mandatory appropriation are made. It may delete illegal items. The division may under certain conditions reject an audit report, order a new one, or require that the audit be made by its staff (Wilson 1991; Jessop, 2007).

In sum, judicial and legislative mechanism has an important impact on the practice of state management. The judicial and legislative arms of the government control and comprise the formal tensions between the branches of government, the informal tensions between the competing stereotypes of governance, and the forums where these tensions are played out: legislatures and bureaucracies. Judgments differ as to how to compose the resulting picture, whether in effect to blur the background so that figures stand out or to zoom back and view the larger background in sharp focus, in which case foreground figures may shrink to insignificance. Judicial and legislative arms of the government stipulate the main rules and procedures of the state functioning and determine the main regulation mechanisms.

Bibliography

Bouckaert, G., Pollitt, Ch. 2004, Public Management Reform: A Comparative Analysis. Oxford University Press; 2Rev Ed edition.
Bovaird, T., Loeffler, E. 2003, Public Management and Governance. Routledge.
Grieco, J.M., Ikenberry, G.J. 2002, State Power and World Markets: The International Political Economy. W W Norton & Co Ltd; 1st edition.
Jessop, B. 2007, State Power. Polity.
Krieger, J. 2005, Globalization and State Power: A Reader. Longman.
Molot, J.T. 2000, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary’s Structural Role. Stanford Law Review, vol. 53, iss. 1, p. 1.
Scheduler, A., Diamond, L., Plattner, M.F. 1999, The Self-restraining State: Power and Accountability in New Democracies. Lynne Rienner Publishers Inc,US.
Turner, C. 2006, Australian Commercial Law 26th edition. Thompson.
Wilson, J.Q. 1991, Bureaucracy: What Government Agencies Do and Why They Do It. Basic Books Inc.,U.S.; Reprint edition.

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Judicial and Legislative Arms of Government

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