This article examines whether the procedural framework of the Federal Tax Ombudsman (“FTO”) in Pakistan, established under the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000, to adjudicate complaints of maladministration arising under federal fiscal statutes, may be strengthened through the integration of Kleros, a blockchain-based crowdsourced dispute resolution mechanism. Drawing upon an original empirical dataset of one hundred and twenty-four cases registered between January 2023 and February 2025, the article finds that the average resolution period of cases before the FTO is approximately 191.3 days, rising to 503.3 days for complex matters that traverse review, representation, and remand, whereas the Kleros mechanism resolves disputes in an average of 13.23 days across 2,111 adjudicated cases. The article also situates its findings within institutional economics, identifying the FTO as a hierarchical governance structure and the Kleros mechanism as a market-based alternative. It views the difference in resolution times as a measure of transaction costs for taxpayers and administration. By measuring these costs, the article depicts that a market-based adjudicatory system significantly reduces them, enhancing institutional efficiency. It provides empirical evidence, illustrating the welfare gains from institutional substitution in transaction cost economics and institutional change. Against this benchmark, three integration models are proposed, namely a hybrid concurrent fact-finding model, a delegated crowdsourcing model with conditional executive review, and an amicus curiae model for technically complex matters such as the taxation of digital assets, each anchored in the updates introduced under Kleros V2, including Soulbound Tokens that enable expert-gated juror selection. The article identifies two structural gaps that necessitate reform, namely the revolving-door capture within the FTO secretariat and the jurisprudential bottleneck created at the Presidential secretariat following the jurisprudence of the Supreme Court of Pakistan. It concludes that phased, pilot-based integration, commencing with the amicus curiae model in respect of complex subject-matter complaints, is jurisprudentially defensible, economically efficient, and operationally feasible within the legal framework of Pakistan.
The current autonomous police system has entered its fourth year of implementation. This is a dramatic change in the paradigm of police organization. There is also a positive evaluation that the establishment of the system is being promoted relatively smoothly, centering on each city and province police committee and the council of city and province police chairmen nationwide. However, various problems are also raised, and improvements must be made to properly reflect the problem consciousness in order to establish the autonomous police system more successfully. The police's original mission to improve and develop the autonomous police system and the ideology of decentralization and political neutrality for the completion of local autonomy under the constitution should not be diluted or damaged. Police activities often lead to the exercise of public power that limits or imposes obligations on the people's freedom, property, and body, requiring clear and strict human rights protection and procedural fairness at all times. At the same time, there is a possibility that the police organization's authority to appoint personnel will be monitored, so political neutrality must also be strictly observed. If these requirements are met properly, the autonomous police system will be a complete model of local autonomy guaranteed by Constitution, and will be able to establish itself as a trusted autonomous system that combines local residents' rights and regional customized security services, eradicating local indigenous corruption, securing distribution of police power and political neutrality, linking local administration and security administration with financial support from local governments, smooth cooperation between national and autonomous police, strengthening resident representatives' participation in security administration and strengthening democratic control, and differentiating local security responsibilities from existing national police.
Local self-government represents a form of territorial decentralization. It exists in the states where local self-governments have been given the right to make autonomous decisions on local matters, without the interference of state power, through their local bodies which are chosen by the citizens or in which the citizens have direct vote. The elements which are constituent to the concept of local self-government in Serbia, as well as in the majority of states worldwide are: 1) it is guaranteed and regulated by the Constitution and more closely by law, 2) it is implemented in local communities where the citizens live and meet their everyday needs, 3) it is based on autonomous and original competences which are exercised without state interference, 4) citizens participate in making decisions on local matters directly, or indirectly via local bodies chosen in free elections and the state cannot interfere in their appointment. Self-government authority has been structured towards an assembly model which makes it different from the model of a rationalized parliamentarism at the state/republic level. This model asserts the election of the president of municipality or mayor, in case of cities. The solution from the previous Law on self-government from 2002 has been presented in this paper. It foresaw the direct election of municipality presidents and city mayors which entailed problems in local political practice. The legal framework of the present Law on selfgovernment from 2007 has also been discussed. It provides that municipality presidents and city mayors are elected by local representative bodies. This indirect election of municipality and city leaders in political practice may have the character of direct voting, which is the fact that should not be neglected.
The decentralized administrative system presupposes the existence, along with the national community, of territorial communities (local and regional), which is one of the main foundations of any democratic regime. Their efficient organization and functioning is directly dependent on the correct theoretical substantiation and the adequate transposition through the fundamental laws and the relevant normative framework of the basic principles regarding the local public administration. Doctrinal, but also according to advanced administrative practices, decentralization and local autonomy are the fundamental concepts that regulate the organization and functioning of decentralized communities / local public administration. In this sense, for the modernization of the local administration, it is necessary to ensure the adequate transposition of the principles of decentralization and local autonomy through the prism of the identification in the matter of administrative independence, the application of some fundamental financings.
Niels Peterson’s Proportionality and Judicial Activism is a very timely and accomplished book. It is an important addition to the now quite considerable literature on proportionality, and it would benefit anyone interested in this omnipresent doctrine, especially in the three jurisdictions it covers—Germany, Canada, and South Africa. The book is not too long, and extremely readable—two non-negligible advantages for any reader—and Peterson has a rare capacity of simplifying intricate analytical moves and theoretical constructs without losing accuracy, a talent he also applies to the many cases he reviews in the book. The book is also innovative and ambitious, making it a very interesting and enriching read. However, its innovation sometimes comes at the expense of accuracy and consistency, and the book could have benefited from framing its goals a bit more modestly. At the center of the book is the following bold thesis: proportionality and balancing, while giving judges considerable discretion, do not, as a matter of empirical fact, bring them to usurp that discretion and engage in judicial activism and self-empowerment. The reason, according to the book, is that judges fear losing public legitimacy—the main source of their power—and therefore limit the use of proportionality, by and large, to the realm in which judicial review is legitimate. This realm, according to the book, is defined based on John Hart Ely’s process theory, and is thus the correction of political democratic market failures. The book reviews what it takes to be all the relevant proportionality cases in three key jurisdictions—Germany, Canada, and South Africa—and classifies them according to criteria developed by the author, showing that most proportionality cases fall into the non-activist rather than the activist camp. In this review I will give a brief account of the main arguments in the book, commenting on them as I go along, and then make the following main claim: the book does not fully achieve what it claims to do—prove empirically that proportionality and balancing are not related to judicial activism. The way the research is framed, I would argue, does not fit the purpose for which it is devised and has some internal tensions and key methodological problems. However, many of the contributions of the book are to be found in the details and on the way to the conclusions, rather than in the conclusions themselves. In particular, to my mind, its greatest achievement is in its classification method, which shows that when judges use the heading of proportionality they do myriad different things, many of which do not include engaging directly with the content or importance of rights, and, I would argue, resemble the functions of an administrative court. Elsewhere I called this phenomenon, the administrization of constitutional law.1 Whether these judicial interventions amount to judicial activism or not, and under what theory of judicial review they can be justified, is not resolved by the book. But, the in-depth analysis of the cases in the book and its novel classification system show that proportionality is more complex than its four simple subtests suggest, and this must inform any debate about proportionality and activism. In the first chapter Petersen develops a sophisticated and well-argued-for theory of judicial activism. According to Petersen, “[t]he question of whether courts acted in an activist manner depends on whether they were in line with the role that they are supposed to play in a liberal democratic political system” (at 15). It would depend, therefore, on our theory of judicial review. Petersen chooses a theory based on John Hart Ely’s process theory, according to which courts should not intervene in the substance of the democratic game—value choices should be left to democratic majorities—but rather correct market failures in the democratic process, and, like a referee, make sure that the players adhere to the rules of the democratic game and not rig it in unfair ways. Courts should therefore protect “discrete and insular minorities” against majoritarian bias, and rights related to the democratic process such as free speech and voting rights.2 Petersen extends Ely’s theory especially by including also the protection against legislative capture by interest groups and lobbyists (at 26–27). The chapter is masterfully written, and the exposition of market-failure-based accounts is excellent. Relating activism to one’s theory of judicial review is a novel and unconventional approach, and it strikes at a soft spot of definitions of activism that view it as an unwarranted departure from the law.3 Such definitions must rely on a theory of judicial review to define what the law is but do not always acknowledge that. However, since Petersen’s definition of activism is strictly normative, it departs from the common use of the term, which also has a contextual and descriptive element—activism is usually assessed in relation to a certain norm for judicial intervention prevalent in the relevant society, and thus cannot be defined solely in normative and non-contextual terms.4 Choosing Ely’s process theory is also novel and unconventional, coming from a German scholar, as German constitutional jurisprudence is emphatically substantive, and talks freely about judges as safeguarding an “objective value order,”5 while rejecting as overly American perceptions of judges as mere referees.6 It is especially a novel choice to support proportionality and balancing, as these are justified precisely for the type of jurisprudence which engages with values, and therefore must resort to balancing when such values conflict.7 If successful this choice could show that proportionality is justified even within a theory that emphasizes judicial restraint, which would be a counterintuitive, and therefore important, finding. However, squaring actual proportionality jurisprudence with Ely is a tough job, and as I will argue, the actual review of the cases by Petersen does not quite do that, and uses another definition of non-activism instead. In the second chapter Petersen delves with impressive skill into the analytically complex and abstract debate on balancing, incommensurability, and indeterminacy—the accusation that balancing compares things with no common denominator (e.g., the right to free speech and the interest in public security) so that it lacks rational content, and is therefore indeterminate and does not constrain judicial discretion. This chapter too is masterfully written, and Petersen convincingly shows the flaws in several key attempts to claim that balancing can escape this critique. However, the conclusions drawn from this realization are less convincing to my mind and do not appreciate the full force of the critique. Petersen is comforted by the fact that other methods, such as categorical rules, also suffer from indeterminacy, and thinks the choice of proportionality can be justified as a policy choice that prefers standards over rules (trading certainty for more flexibility to adjust to the particularities of the case) and more rather than less judicial control over the legislature (at 58). However, rules (unless one adopts full rule-skepticism) are only partially indeterminate—in the “hard” cases, or in the “penumbra”8 —while balancing, if it amounts to comparing the uncomparable, seems completely indeterminate; it is not clear what content it has at all, and what direction, however little, it can give to judges, if it suffers from the problem of incommensurability. Second, if balancing gives little or no guidance to judges, the problem is not just a policy problem of trading certainty with accuracy; in constitutional law, it is a political problem of accountability and representation. Finally, the idea that less guidance to judges means more control of the legislature is based on the assumption that judges, given discretion, would use it primarily to control the legislature rather than capitulate to it. If this is not correct, rules might actually control the legislature more than balancing.9 Having defined activism, and concluded that proportionality allows for judicial discretion, Petersen proceeds, in the last four chapters (chs. 3–6), to the heart of the book—the empirical analysis which aims to show that despite its open-endedness, proportionality does not lead to activism. I will briefly survey here the design and finding of the research and elaborate more in the next part. The survey consists of reviewing 250 German cases, 67 Canadian cases, and 44 South African cases, each analyzed according to roughly 10 criteria, depending on the jurisdiction (tables at 84–86). These include the four subtests of proportionality: illegitimate purpose, rationality (means fit ends) and necessity (no less restrictive means) joined together, and balancing (benefits outweigh costs); in addition, there are several other criteria, some of which are the author’s own, that will be discussed later. Each case is categorized under one or more of these headings, depending on criteria set by the author. The pool of cases reviewed consists of only (and all) cases in which the court struck down legislation, and the review period begins, for each jurisdiction, roughly since proportionality review was introduced to the system. The author then analyzes the results looking especially at the use of the fourth test of proportionality—balancing—which is the only test to directly and explicitly engage in comparing and making trade-offs between rights and interests, and is thus taken to be the main indicator for judicial activism. The first finding is that the use of balancing in both Canada and South Africa is consistently modest and stands below 10 percent of all proportionality cases reviewed (except for an increase in Canada toward the end of the survey); in Germany, balancing’s use was modest in the early years but rose dramatically in the 1970s and has plateaued since at around 30 percent (graph at 82). These findings are interpreted to support two theses by the author: (i) that the use of proportionality does not bring about judicial activism (since most proportionality cases do not include balancing); (ii) that the reason for that is that courts are subject to institutional constraints—they will lose public legitimacy if they are too activist. This explains why there is little balancing in Canada and South Africa, where the Court has not earned full legitimacy yet, and why as the German Court earned more legitimacy (and maybe the Canadian Court also in recent years), it increased its use of balancing. The last chapter analyzes only balancing cases, and shows that even these cases, most of the time, are not “real” balancing cases, in the sense of directly balancing rights and public interests, and only few cases can be so identified. Does the research as just described achieve its purported goal: to show empirically that “all three examined courts refrain from using proportionality for purposes of judicial activism” (back cover)? I believe it does not. The reason is a mix of methodological problems and inconsistencies in the design and execution of the research. As far as I can tell, the only quantifiable empirical proof to show that in all three jurisdictions the use of proportionality is not activist is the low level of balancing cases in those jurisdictions summarized in the graph at 81. There are, however, several problems regarding this deduction. The first relates to what it is exactly that the author means by a balancing case. In Canada it means that the Court formally relied on the fourth, balancing, subtest of proportionality in its reasoning. However, in Canada, as Petersen acknowledges, there is a doctrinal aversion to the use of that test, so that not using balancing formally does not mean that substantively the reasoning is not based on balancing.10 What we can learn from this data pertains therefore only to the perception of activism—does the Court wish to appear activist or not (assuming that balancing sends an activist signal). It cannot tell us whether the decisions themselves are activist, since balancing can lurk below the surface. In South Africa and Germany, however, courts do not always distinguish between the four subtests of proportionality (in South Africa not at all) and when they do not, a balancing case would mean what Petersen, rather than the Court, takes to be a balancing case. Petersen identifies balancing cases based on two criteria he devises—that the reasoning includes a comparison of values, and that there are no alternative modes of reasoning that are factual or empirical, and thus indicate the use of the rationality and necessity subtests (at 73). I think these are reasonable criteria, but I would like to note two problems: first, this means that counting for a balancing case would mean different things in different cases (for some cases formal, for some substantive); second, when we move away from formal reasoning, which can be relatively objectively measured, we get into the realm of subjective assessment of the surveyor—what if, for example, there is comparison of values, but also some, but not much, reliance on factual factors and policy efficacy?—and thus the findings do not have the strength of more objectively verified data. Another problem is revealed once we look at the finding on Germany which cannot indicate a similarly low percentage of balancing cases, as in Canada and South Africa. Over the entire period surveyed, 24 percent of the cases are labeled balancing cases, and in some decades as much as 37 percent. The problem now becomes knowing what percentage counts as proof of activism or lack thereof. If Canada and South Africa are labeled not activist based on less than 10 percent balancing, does that mean that Germany should be labeled activist, or is a maximum of 37 percent still low and therefore it is not? We cannot tell since there is no criteria set for answering this question in the book. One could assume at least that this data would indicate that Germany is more activist than Canada and South Africa, but this conclusion too is not reached in the book. Instead, when we move to Germany the proof of lack of activism becomes not the actual percentage of balancing cases but the fact that this percentage was low in the early years of the Court and rose in the 1970s. This, the book argues, indicates that the use of balancing is dependent on, and thus regulated by, the threat of losing public legitimacy. As the German Court acquired more public legitimacy in the 1970s it could afford to use balancing more. In South Africa and Canada this has not happened yet, or at least not to the same extent, so balancing has remained low. But if this is now the claim, then the book has not established that proportionality would not bring about activism, only that it would not bring about activism as long as the Court does not acquire sufficient public legitimacy. And, in addition, Petersen has not shown but has only speculated that the fear of loss of legitimacy is at play—other explanations are readily available to explain the differences between the use of balancing in these countries, such as the formalist common law tradition in South Africa versus the more substantive and communitarian tradition of German jurisprudence.11 There are several other methodological as well as substantive problems that I will indicate only briefly. First, the case selection is based only on cases in which the Court overturned legislation; however, some of the seminal proportionality cases, such as Kiegsra12 in Canada, and some of the most activist proportionality cases, such as Mizrahi13 in Israel, are upholding cases. Secondly, the pool of reviewed cases in Canada and South Africa is very small, spanning between 10 and 27 cases per decade. For such a small pool, any slight change in categorization can dramatically affect the results, and Petersen does not provide us with statistical assurances that his sample is big enough for empirical conclusions. Thirdly, and substantively, the book jumps very quickly to the conclusion that balancing is the right, and only, indication of activism in the use of proportionality. This does not follow from the book’s own definition of activism as going beyond correcting Ely-type market failures, as the other tests of proportionality may also amount to non-market failure interventions, and as balancing can be used to correct market failure. The research therefore suffers from several key problems if it aims to provide hard empirical proof. However, maybe we should view it differently, as a heuristic on a large scale, or as straddling the space between qualitative/small N, and quantitative/big N research. As such, its assessment changes dramatic- ally, and I think it shows clever and sophisticated analysis and can provide us with very important and valuable findings, especially pertaining to what I have called the “administrization” of constitutional law.14 The book’s most interesting and important achievement, to my mind, is its scheme of categorization for proportionality cases. What is unique about it, is that it is not limited to the four subtests, usually associated with proportionality but adds several additional key doctrinal tests, used by courts in such cases. I would like to highlight the following tests: consistency and coherency—looking for inconsistencies within legislation or between different acts of legislation; protecting legitimate expectations—such as when a new law changes the regulatory regime without providing for a transition period for those that relied on the previous regime; procedural arguments—lack of administrative review mechanism, or mechanisms for hearing, in the implementation of the law, or even procedural flaws in the process of legislation itself; lack of determinacy of the legislative norm; and overbreadth (note that in describing these tests I have not mentioned the word “rights” even once). Petersen then goes on and reviews many key cases in all three jurisdictions to explain his categorization of them under these different headings, and does so, on the whole, convincingly and informatively. He also provides a helpful list of all the cases reviewed in the Appendix. Analyzing the cases under these headings, and also under the formal subtests of proportionality, shows that the Court is often engaged in what Petersen the review of the of legislation, and what I would the tests of administrative law to I have that in jurisdictions courts are not engaged primarily with the and of the rights in the do they even a constitutional for legitimacy they administrative law, and of law, to legislation, the same way an administrative court would do to decisions and This also from the of by such which are taken from administrative the to the legislature to correct procedural directly certain changes in legislation, judicial review following legislation over in a and so Petersen provides in his book a and sophisticated account of this phenomenon, and he is correct in our to it as he in his that courts look for flaws in legislation is however, than showing that they have not engaged in judicial activism, especially if we define activism according to Ely’s theory of judicial review. The way I Ely’s theory, it would to be and as long as they are not by for example, the reviewed in the book (at in which the German Court struck down a law that limited the of new in where there is an The Court based its on rejecting the empirical for the legislation according to which there was no for in the relevant Such a case would not fit Ely’s of judicial review. It is not a case of and insular of political that it is a case of of is in this as there was no for that, and, in any Ely this of his theory and it from a not to the rationality of a law that between and Ely usually cannot (and should not when they do the to which of the legislature are under the of but they can tell when a legislature is Petersen’s book therefore on a more of the judicial role than market and cannot rely on this to show that proportionality is not activist. is not a market failure. It and there is no in it that the free democratic However, our to rationality or what I called administrative review of legislation, the debate over activism and proportionality by describing what is at with to proportionality cases, and it does show that proportionality is not just about balancing. This about a last courts not the and four subtests of proportionality and the jurisprudence of law review they engage would be to use Petersen’s book as an for just that.
The Constitution of the Republic of Serbia from 2006. has been the subject of sharp criticism of many legal experts. The way it was written, adopted and approved in the referendum, for sure it can’t be a praiseworthy example of legality and, with some of its controversial solutions, it inevitably indicates the necessity to be altered. These problematic Constitutional provisions are the subject of this article. Starting from the very preamble of the Constitution, unnecessarily discriminating position between the autonomous provinces, politicizing and the non-coexistence of the Constitutional text could be clearly observed. The Constitutional attack on the freedom of parliamentary mandate has been causing constant and numerous criticism of domestic and foreign public but at no time it did not make most of the parties hesitate to use their unfairly acquired right. Decentralization always causes a live debate, proposing various models and modalities, but only few of them could be possibly finalized by a general consensus. Serbian firm commitment to become a member of the European Union, at one point calls for a constitutional revision which would transfer the execution of certain part of sovereign rights to that supra-national organization. We could only hope that the political elite will not use any future reform to violate guaranteed constitutional rights, as was the case with the reform of the judiciary. Amending the Constitution has been always a difficult and time consuming process, hence the sooner the amending starts, the more likely are the chances to have it completed in democratic and tolerant atmosphere for the benefit of all citizens of Serbia.
The subject of this paper is the constitutional and legal regulation of local self-government system in the Republic of Macedonia, territorial division, the process of reforming and building this system since the independence of the Republic of Macedonia from the former federation of Yugoslavia. With the intention of functioning and materialization according to democratic principles, since the independence of Macedonia the system of local self-government has undergone through continuous reform process. These reforms first of all are mostly related to the territorial division of local self-government units, seeking the most appropriate model which would be appropriate to the general developments of Macedonia. In this paper is analyzed the role and the constitutional and legal position of local self-government units, in this case the municipality, as the only unit of local self-government, its legal status, competences, representative and executive bodies, financing and the process of decentralization. It is also analyzed the model of organization of local self-government in the city of Skopje, as a capital of the Republic, in the form of community of municipalities in the city and the impact of the Ohrid Agreement on the regulation and functioning of local self-government in Macedonia.
Before the Constitutional Court of Serbia, there is a pending case on reviewing constitutionality and legality of the Autonomous Province of Vojvodina's Statute. 30 MPs, one civic organization and one individual initiated the proceedings, back in 2009, right after the Statute came into force. This article, which relies on author's amicus curiae brief in the mentioned case, offers three claims. First, the author claims that Serbia is not a typical unitary state, as for example, France or Romania, since it has gained several important characteristics of a regional state. Thus, for the time being, according to a vertical division of authority, Serbia can be defined as a state that is neither unitary nor regional, but rather a state 'in between' these two forms. Second, the author argues against an idea of textual dogmatization of the Constitution employed by the initiator of the proceedings (MPs), and after a deep analysis, rejects most of the arguments aimed at invalidating the provisions of the Statute, finding them unpersuasive and unfounded. Third, starting from the citizens' sovereignty, on which the political autonomy of Vojvodina is based (Articles 12, 176 and 182 of the Serbian Constitution of 2006), the author urges safeguarding the political decentralization guaranteed by the Constitution, since it gives more power to citizens in public decision-making and strengthens the democratic principle on which the Republic of Serbia is based. It is also stressed that a potential invalidation of the statutory provisions concerning the protection of national minorities, would endanger this protection, since, in accordance with the principle of subsidiarity, the constitutional protection is the most effective if implemented by the act of the regional authority of the territory where the members of national minorities traditionally live in a great number.
The literature of the last ten years contains numerous references to two opposite trends: on one hand, “the end of administrative law,” on the other, the “new administrative law.” According to the first body of literature, which is mainly of French and Belgian origins, administrative law has lost its peculiarities (thus giving rise to the increasing difficulty in defining its status and scope); it has become a hybrid, has been destabilized and destructured, and is now in ruins. This situation is—according to this narrative—the product of various, conflicting causes: globalization, constitutionalization, destatization, privatization, decentralization. As a result of the pressures stemming from these diverse trends, administrative law is slowly losing its raison d’être—its center: the state.1 On the contrary, according to the second point of view, held mainly by German observers, a new administrative law is developing, due to a process of change, modernization, and reform. This new, or postmodern, administrative law is more open than the old administrative law, and is focused on “steering” rather than on ordering. This new administrative law is—in this view—the product of the new role of the state as a promoter, as a facilitator, as a risk regulator, and as the helmsman of economy and society. It therefore requires a new, more interdisciplinary, approach.2 Should we share the view that administrative law has reached the final stage of its life, or, on the contrary, that it is undergoing a process of intense change and renewal? What prevails now: continuity and decline, or development and modernization? Before providing an answer to these questions, I shall address the more general issue of continuity and change in administrative law. For a long time, administrative law was conceived as the domain of stability and continuity. Otto Mayer, in the introduction to the third edition of his Deutsches Verwaltungsrecht, observed that it was a common opinion of his times that “Verfassungsrecht vergeht, Verwaltungsrecht besteht” (constitutional law passes, administrative law remains).3 This conclusion was strengthened by the dogmatic approach adopted by administrative law scholarship in many European countries, where the dogmatic reinterpretation of Roman law by the German scholar Friedrich von Savigny was taken for granted and imported into the study of administrative law. For instance, in Italy, the founding father of administrative law scholarship, Vittorio Emanuele Orlando, espoused the “systematic approach” developed by Savigny and by scholars of private law. Therefore, concepts and methods possessing a high degree of stability in the field of private law became familiar to administrative law scholarship. Administrative law was founded on timeless tenets or dogmas derived from private law. Continuity in paradigms of study paralleled the idea of continuity in administrative institutions. Over the last twenty years, both assumptions have become obsolete. Administrative institutions have undergone impressive changes. Consider the accumulation of these: globalization, privatization, citizens’ participation, new global fiscal responsibilities. The very idea that administrative law concepts could remain stable over time has been abandoned. The fast-developing phenomena in administrative law have rendered the field’s cultural paradigms inadequate. New concepts and ideas have penetrated the literature: new public management, governance, accountability, expert bodies, steering. But, as continuity and change go hand in hand, it is difficult to study this mosaic of contradictions using the old approaches. The purpose of this paper is to catalog and briefly review the major changes that have occurred in Europe over the last twenty years, and to mention the resulting changes produced in the methods used to study administrative law.4 Discontinuity in the realm of administrative institutions requires discontinuity in the approaches adopted for studying the new administrative law. The scholarship examining this new administrative law needs reorientation and a new framework, capable of explaining the changes that have taken place. According to Otto Mayer, “[t]he administration is the activity of the State for the accomplishment of its ends.”5 Therefore, administrative law originated as the product of the state, but has now become dependent on other powers of transnational, global, and local dimensions. Many complex phenomena are currently unfolding: the growth of ultra-national and intra-national powers; increasing “dédoublement fonctionnel” (functional splitting), in which national governments act both as sovereign powers and as “delegates” of ultra-national bodies; the development of certain basic principles of administrative law at global, national, and local levels (e.g., in Europe, the principle of “good administration”); open statehood (“offene Staatlichkeit”) and increased communication between national legal orders, thanks to which principles may circulate (e.g., the principle of proportionality, first developed in the German legal order, was then imported in the European Union, and from there into many national legal orders); development of principles that are shared by several legal orders, at the global, national, and local levels, which therefore become universal (e.g., the right to a hearing, the duty to give reasons, judicial review), and thus provide increased opportunities for popular participation, but also produce increasing conflicts; rights are not recognized only by national constitutions, but also by global rules and imposed by these on national legal orders; national governments are subject to a contradictory trend: on one hand, their sovereignty is diminished; on the other, they acquire new tasks (e.g., control of efforts against global terrorism or global warming) that they could not possibly have gained in previous times, but that they are now obliged to share with other states (for that reason, the relevant literature contains several remarks on the state’s declining sovereignty and on the need to “bring the State back in”). The most important of these developments is the growth of a global space and a global polity. These are not only arenas in which contending forces operate, but also sets of organizations claiming control not over territories and people, but over functions.6 These developments require administrative law scholarship to be denationalized. Thus far, nationalism has been the prevailing mode through which administrative law scholarship has been conducted. But, as common core principles have developed at the national, transnational, and global levels, administrative law scholarship must give up this traditional nation-based approach. Indeed, for example, to understand the European Union, it is necessary to draw inspiration from the imperial paradigm rather than the state one. Like the empires, the Union is a compound structure. Attempts to establish a common European area of research in the field of public law are already under way.7 Representative democracy and the traditional legitimacy paradigm (featuring governing bodies vs. governed) have been exhausted. In all countries, and globally, public powers and civil societies are in search of new sources of legitimacy, and new ways of holding power accountable have been tested. National and supranational legal orders are developing in two different directions. Vertical accountability is increasingly juxtaposed to horizontal accountability (inter-institutional accountability).8 National governments respond to other national governments and to supranational institutions, and independent regulatory agencies balance ministerial bodies. Power has shifted to “technocrat–guardians” who are shielded from political influence.9 Delegation of power through elections is now flanked by participation in the decision-making process: major urban planning, environmental, and regulatory decisions require public inquiries through which individuals can make their voices heard. Popular participation and deliberative democracy complement representative democracy. These constitutional developments also affect administrative law. At the global level, administrative networking and shared administration are made necessary by increased political cooperation in intergovernmental global institutions and in hybrid global regulatory bodies. At the national level, collaboration and horizontal accountability are products of the increased fragmentation of national executives into many different agencies. To enable participation, detailed procedural regulations are necessary; therefore, administrative regulation increasingly consists of regulation of procedures (freedom grows in the interstices of procedure). As a consequence of these developments, an entirely new area of study is opened up to the scrutiny of administrative law scholarship, which, in the past, developed essentially along vertical lines. This requires renewed attention to cooperation, codecision, and reciprocal accountability, as well as to procedures, disclosure, and access to information, notice and comment, hearings, and reasoned decisions. In particular, the proceduralization of administrative law makes a new approach necessary, because administrative decisions no longer take center stage and have been replaced by procedure. Administrative law was initially established as a “special” law, separate from private law. Globalization, overburdened governments, privatization, and new public management techniques have all de-emphasized and blurred the public–private divide. Private law invades the space of public law and erodes its specificity.10 In the global polity, hybrid and private bodies are as numerous as public bodies. National governments make increasing use of private law. Contracts between the state and private persons, once almost unknown (as they challenged the very idea of state sovereignty), are now a common feature of state activity. Consequently, the state becomes dependent upon collaboration with civil society. With the emergence of the enabling state, the focus of public activity has shifted toward measures aimed at financing benefits through the market. Therefore, a large part of social welfare has become a lucrative, privatized, commercial, and for-profit activity.11 Outsourcing and public–private partnerships increase efficiency and sectionalism, which in turn contribute to the fragmentation of the state. On the contrary, private institutions increasingly apply administrative law rules (two examples are the Internet Corporation for Assigned Names and Numbers (ICANN) by-laws, which contain a sort of administrative procedure act and the World Anti-Doping Agency (WADA) regulations12). As public bodies are not necessarily subject to administrative law, so too private bodies are not necessarily subject to private law. Topics such as state-owned enterprises, public–private partnerships, public incentives to private companies, and market-oriented regulation thus become crucial for the analysis of administrative law. These developments make it necessary to abandon the public law regime paradigm, to de-publicize the approach adopted by administrative law scholarship and to study the ambiguities and the richness of the interconnections between public and private law. Between the nineteenth and the twentieth centuries, Weberian-style administration was a “machine,” with linear development and linear decision-making processes. According to this mechanical form of regulation, the executive branch was ruled from above (politicians governed bureaucrats), agencies developed according to popular demand for services as interpreted by parliaments, decision-making processes ran directly from the initiator (usually a high-level politician) to the deciding officer (again a politician), through the machinery of the executive agencies. Over the past fifty years, the picture has become more complex. Administration, politics, and society now form a triangle; there is no longer a clear dividing line between administration and society; negotiation runs side by side with command and control; as soon as new services require new structures, these new structures establish links with their institutional clients and attract new clients (both internally and externally); decision-making processes are replaced or accompanied by consultation, mediation, Parliament-like procedures, or, simply, muddling through. “The old image of a hierarchical public administration single-handedly implementing well-defined policy goals set down in legislation must today compete with a vision of the administrative process as open-ended, collaborative, and networked.”13 Administrative law scholarship must adapt its paradigms and research techniques to this new reality. It must be prepared to study administrative law less as a mechanical structure than as a market, where many intersecting negotiations take place. “To capture the new reality, comparative administrative law should be framed no longer as the rules and judicial-redress mechanisms that guarantee the effective working of administration, but rather as an accountability network through which civil servants are embedded in their liberal-democratic social orders.”14 This approach requires paying more attention to the rules of change and to a different conception of administrative law, which is to be seen not as a static set of rules and mechanisms, but as a dynamic system, capable of interacting with its environment. The executive branch, which once served the elected politicians and the state-provider of a few basic services (e.g., defense, public order, tax collection), has now become society’s largest artifact. It has also become increasingly separated from politics, becoming, rather, ever more embedded in society. The state is no longer extraneous to society, as it is not extraneous to the economy. These developments are noticeable if the size of government apparatuses is measured: a century ago, public employment occupied between one to five percent of the labor force, a figure that has risen now to between 10 and 50 percent.15 The state has become the largest employer and the most important financial intermediary. Further, it is the main actor in all major social and economic events. The emergence of the administrative state has rendered regulation pervasive. Moreover, the administrative “machine” has been able, over time, to adjust to political and societal pressures, first by expanding, then by reducing, and now by re-expanding its own dimensions. The administrative structure of government has become embedded in politics, in society, and in the economy, reproducing the main features of a corporatist state, where different branches of the executive or agencies become “captured” by their constituent interests, but still “capture” a certain degree of sectorial legitimacy from them. Therefore, while constitutional law is still organized around a center (Parliament, the government, a supreme court), administrative law has lost its center and has become fragmented and multipolar. Therefore, administration and its law cannot be understood if the administrative culture of a country and its civic values are not studied. For example, the degree of industrialization and the experience of wars and the need to maintain large armies all have a significant impact on the management of government, both in terms of diffuse managerial cultures and popular attitudes of skepticism or deference vis-à-vis the state. The next task for administrative law scholarship shall be that of bringing society and politics back into the study of the administration, analyzing the many links between society and administrative agencies, in which politics often acts as an intermediary. Traditionally, administrative law was based on the bipolarity between the “administré” and the “autorité publique.” In the last thirty years, two developments have occurred. The “administré,” subject to administrative authorities, has become a citizen, fully entitled to rights vis-à-vis the government: for example, he has a right to be informed, to make his voice heard, to receive reasoned decisions, and to have administrative decisions reviewed by independent courts. The “rights revolution” has produced many major changes in the field of administrative law, as well. Broadened suffrage, organized societies, and the fragmentation of executives have replaced bipolarity with multipolarity. Today, the administrative landscape is dominated by multipolar a of public bodies and conflicting private For example, there are numerous state and agencies in the field of private that with and The state is penetrated by conflicting private interests, which, state agencies must address (e.g., and economic also an administrative and require administrative or political far, administrative law scholarship has focused on the only as an of public orders or benefits and on the between the State and New administrative law scholarship has a new It must a view of and governing administrative not only as regulations of administrative power but as of citizens’ rights vis-à-vis administrative on agencies, to the of private It must study the in which conflicting one and and in which agencies act as and is subject to the an administrative law the law not public in their are and such as and in which the executive is from legal and once are now increasingly as to the of law and to the principle of judicial therefore, a between the executive powers and social for institutions. Moreover, there are where agencies must address complex and in a or the principle of (e.g., in and cannot be by of the executive makes to For example, it and or which are These developments open up an entirely new set of for administrative law scholarship. administrative law scholarship has on the of judicial decisions, and institutional The new scholarship has a more difficult to at institutional the of and judicial decisions. It must with and of and in to study these In the past, in the European and wars the main of changes in administrative law. the of and of wars has to an This has an impact on as they are from major change, or subject to a change that more Administrative law is more dependent upon and previous therefore, institutional is the Administrative law therefore consists of and “the approaches have not Administrative law has been a process of to societal the but their has been in the Moreover, administrative institutions and are by law in state is a The that administrative development are ideas and economic constitutional social time and according to This requires of the of of their and of their of rules and institutions are regulations which changes. The study of these complex structures first an attention to and the in which they to the different to the and it requires an analysis of the between the different to establish they and which rules and institutions As become increasingly legal become more National legal orders are no longer the and of institutions, and between are open legal space national The has become a where it is to go and sets of principles from one legal to are not only legal but also and and policy are at the in administrative law have This not that national legal orders have become and a major role in institutions and from one These developments require two major changes in administrative law scholarship. On one hand, they require it is increasingly that the law of one country cannot be fully understood if it is in Administrative law scholarship cannot to one legal Moreover, at this requires a that the study of the law as in and of law in of legal legal and and legal On the other hand, these developments require and into the picture of legal and the and impact of common ideas and principles in numerous legal In other the developments require the For example, to study the between common law and legal orders, it is necessary to the state on one hand, and on the the of the of law, and and their peculiarities and institutions and as to the state and the of developed in to the German of and its the global and the many national of “new public the of administrative and of the principle of the of and in a common judicial review of administrative the of the different national and as a result of increased communication between legal As administrative law developed first in Europe, it is also important to study the common European of the national administrative scholarship developed as a to mainly and must now more than as it should also and In the past, it was a to individuals for a of legal administrative law scholarship to its own Today, the upon it have and require new techniques of and not one Indeed, it is to state that its own of is no but rather and political of the with the important that administrative law scholarship should not be by a and of certain basic that legal Administrative law must its in the field of social and and its links with it to study the role by the State in the economy, the economic approach to is there that the economic analysis of public law can to the scholars of administrative the executive branch of government is embedded in the realm of politics, and if administration is part of politics, can the study of administrative law political can political in terms of methods and to administrative law and institutional are the in the field of administrative law. Therefore, is an of analysis for administrative law In a and open in which legal orders and become “the national of legal is a legal scholarship with the to be not national, but cannot be by the and must the idea that there is only one form of legal of law not necessarily an that a and organized system, or a must be It therefore, to of on a European on a universal
The paper presents the current state of the process of agencification in Croatia, pointing out both the process and the institutional design. The agency model in Croatia consists of several types of more or less autonomous administrative organizations, situated at different distances from the central government. The most evident pressures for agencification come from decentralization, managerial responses and Europeanization. The reversal of the process in recent years has mostly happened because of the need for rationalization of the public administration system, which is also under pressure because of the economic crisis. The key problems of the agency model are over politicization on the one hand, and insufficient and inadequate control on the other. The adequate legal framework for agencies would enhance institutionalization of the agency model, ensuring effectiveness and legal certainty and maintaining a sufficient level of independence.
The paper that tend to present at this conference would have to object to treat an issue in the field of Albania's legjslation for organizing and conducting the local government and legal spaces that he creates for local development in the district of Shkodra. For this reason paper will address these issues: The legal basis of the organization and conduct of local government: The Constitution of the RA law on local governance and rules of functioning of local government. Principles of decentralization and local autonomy. Elective bodies of local authorities. Local and regional authorities. Separation of powers. Local authorities: executive bodies and elected bodies. The structure, functions and powers. 2. Forecasting the Constitution and the legislation of Albania of the right to direct the exercise of government by citizens in their units of local government. Right: the referendum and other forms of direct exercise of local government. Report of the local authorities with regional authorities and central authorities. Principles that regulate the relation of powers. Local and regional bodies. The municipality, the municipality and county. Report of the local authorities and central government authorities. The authority of the prefect. Central government offices in the units of local qverisjes. Impact of legislation on the exercise of local government in the district of Shkodra.. Government authorities and regional / district of Shkodra.The exercise of local government in the district of Shkodra. The activity of executive authorities and local legislative authorities.Report of the powers between the bodies at the level of municipalities, municipal and county level. The paper will include conclusions and recommendations deriving to improve local governance in the region of Shkodra. Opening Albania is in a process of implementation of reforms, which aim to make itself more stable democratic system, to enhance government efficiency, stimulate the creation of a stable basis for economic development, make government more transparent and ensure citizen participation in public life at local and regional level. In their entirety these reforms can not and should not be regarded as wholly government initiatives, but as reforms that include the contribution and experience of all actors involved in the process, such as local government, civil society, international community and what is more important the citizens. I.The legal basis of local government in Albania. Constitutional provisions. Constitution of the Republic of Albania defines two principles upon which the existence of local government and the exercise of power of local government in Albania: a-principle of decentralization; b- principle of autonomy. 103 Local government has legal cause to the principle of decentralization of power. The Constitution says the government in Albania is decentralized.The exercise of decentralized power and governance in Albania is the intention to realize the governance a more close to citizens and a more effective citizen. For consistency the government in Albania is divided between the central and local bodies. Local governance is an autonomous government, self- government. The local units are entitled to self government, that have the right to decide for themselves. The local self - government units is guaranteed: a-through activity of the local government representative bodies, b-through local referendum. 104 They are independent in making decisions, namely the exercise of powers defined by the constitution. Legal basis. It became necessary to adopt a new law to regulate local government in accordance with the
The previous communal system in Yugoslavia (since 1955) did not prove viable. Owing to its great size (nearly 500 km 2 and more than 40,000 inhabitants), municipality in this period didn't affirm itself as a real community. Having many abilities in developmental planning, it was at the same time dependent on the state in the spheres of finance and normative regulations. The difference between the sphere of local government (LG) and state politics was substantially blurred. Given the changing social conditions (introduction of market economy, political pluralism and the forms of parliamentarian democracy), the need for repeated establishment of the system of local government based on the altered position of citizens in the political system becomes evident. In this environment it is necessary to reestimate the experiences of LG in particular Yugoslav regions (republics) before World War II, and simultaneously, take selectively into account the experiences and development in other developed European countries. This article compares the constitutional regulations of LG among particular Yugoslav republics, and between them and the characteristic orientations in other European countries, enlightening it with the aspect of actual processes and demands of centralization and decentralization, regionalism, moving the regulation of communal and other everyday needs closer to the people in LG, all in the sense of post‐behavioristic trends of the “bottom‐up” approach to the processes of decision‐making.