民主与行政权力

IF 1.5 Q1 LAW
Tom West
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引用次数: 0

摘要

据说,浅湖往往存在于两种稳定状态中的一种:浑浊而浑浊,或者清澈而有丰富的植物。虽然湖泊可以在这两种状态之间转换,但这通常需要外部条件发生比预期更大的变化,更大的推力。这可以归结为滞后的生态学概念:对系统状态的改变取决于它是如何到达那里的。保持现状是可取的;而且,要从当前的状态中解脱出来,可能比坚持在同一条道路上要困难得多。《民主与行政权力》提出了一个改变现状的案例——改革和改进在行政决策中提供公共问责的机制。罗斯-阿克曼的分析基于四个案例研究国家——美国、英国、德国和法国——但她的结论适用范围更广,她特别提请人们注意,东欧和南美的经验既可以借鉴,也可以借鉴。她的核心论点是,作为现代治理不可避免的重要组成部分,行政决策必须与民主原则(最重要的是问责制)保持一致,并且在较小程度上必须与专家意见相协调。这本书展示了改变现状的挑战——从具体行政决策的轨迹和提供公共责任的制度结构两方面来看——唤起了将浅湖从浑浊变为清澈所需的更大推动力。罗斯-阿克曼对行政权力的看法既务实又深刻:政府部门和行政机构既可以制定普遍适用的规则,又可以做出具有法律效力的具体决定,其权力范围将继续存在。因此,削弱民主监督的企图是被误导的,而且很可能产生(也许是无意的)削弱民主监督的后果。但是,这些权力的范围与“投票箱民主”的不足处于民主紧张状态:人们很少在全国选举中根据政府将采取的方法投票(例如,地方发展计划或特定的食品安全规定),无论这些问题对他们有多重要。即使他们这样做了,大选既不频繁也不细致,不足以将这些观点传达给决策者。这就给
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Democracy and executive power
Shallow lakes, it is said, tend to exist in one of two stable states: turbid and murky, or clear with abundant plantlife. And while lakes can shift between these two states, this often requires a greater change in external conditions, a greater shove, than might be expected. This is down to the ecological concept of hysteresis: the idea that making a change to the state of a system can depend on how it got there. The status quo can be favoured; and it can be much harder to shift away from the current state than to stick on the same path. ‘Democracy and Executive Power’ presents a case for a shift away from the status quo – for reform and improvement in the mechanisms that provide public accountability in executive decision-making. Rose-Ackerman’s analysis is based on four case-study countries – the US, the UK, Germany and France – but she applies her conclusions more broadly, in particular drawing attention to lessons that can be learnt both from and for Eastern European and South American experiences. Her core argument is that executive decision-making, as an unavoidable and significant component of modern governance, must align itself with democratic principles (most importantly accountability) and, to a lesser extent, must be attuned to expert input. The book displays the challenges in shifting the status quo – both in terms of the trajectory of a specific executive decision and in terms of the institutional structures that deliver public accountability – evoking the greater shove needed to move the shallow lake from murky to clear. Rose-Ackerman’s approach to executive power is both pragmatic and profound: the range of powers available to government departments and executive agencies to both set generally applicable rules and to make specific decisions with legal effects are here to stay. Attempts to diminish them are therefore misled and likely to have the (perhaps unintended) consequence of a reduction in democratic oversight. But the range of these powers is in democratic tension with the insufficiency of ‘ballot box democracy’: people seldom vote in national elections based on the approach the government will take to (eg) local development plans or particular food safety rules, no matter how important these issues are to them. And even if they did, general elections are neither frequent nor nuanced enough to transmit these views to decision-makers. This creates problems for
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来源期刊
CiteScore
4.50
自引率
10.00%
发文量
23
期刊介绍: The Theory and Practice of Legislation aims to offer an international and interdisciplinary forum for the examination of legislation. The focus of the journal, which succeeds the former title Legisprudence, remains with legislation in its broadest sense. Legislation is seen as both process and product, reflection of theoretical assumptions and a skill. The journal addresses formal legislation, and its alternatives (such as covenants, regulation by non-state actors etc.). The editors welcome articles on systematic (as opposed to historical) issues, including drafting techniques, the introduction of open standards, evidence-based drafting, pre- and post-legislative scrutiny for effectiveness and efficiency, the utility and necessity of codification, IT in legislation, the legitimacy of legislation in view of fundamental principles and rights, law and language, and the link between legislator and judge. Comparative and interdisciplinary approaches are encouraged. But dogmatic descriptions of positive law are outside the scope of the journal. The journal offers a combination of themed issues and general issues. All articles are submitted to double blind review.
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