Assoc. Prof. Murat Somer, CASE 153
E-mail: musomer@ku.edu.tr
Fall 2012 Office Hours:
Tuesdays, 2:00-4:00pm
Chapter 7 : Unelected Components of
Government: Judiciaries, Bureaucracies, and
Militaries
Learning Objectives
 Discuss the tasks of the judiciary, bureaucracy,
and military.
 Describe how each of these unelected
governmental components shape policy
decisions.
 Discuss the advantages and disadvantages of
judicial review.
 Discuss the strengths and weaknesses of a
strong bureaucracy.
 Describe the roles that the judiciary, bureaucracy,
and military play in the TIC cases.
Overview
 Unelected components of government: Major
political institutions whose officials are almost never?
elected by public:
 Judiciary
 Bureaucracy
 Military
 Discuss: How is this compatible with
democracy? Why do democracies need
such unelected bodies?
The Judiciary
 Considered as the third branch of government
 Stabilizes political system by solving disputes related
to the law
 Comparative politics analyze how a specific judicial
decision affects policy outcomes
 The judiciary is supposed to have no pressure from
legislature or executive: judiciary independence.
 Judicial ruling is divided by civil law or common law
 Why do democracies have more lawyers
per capita?
Civil Law
 Judges interpret the already existing law.
 Existing law is the last resort
 Less room for judges’ individual judgments
 Examples: Mexico
Common Law
 Judges have room to interpret the law
 Judge’s case ruling effects the law: case law
 The decisions taken at previous high courts affect
the decisions of the judges: stare decisis
 Examples: United States
Tasks of the Judiciary
 Determining Violation of Law and Appropriate Penalty
 To settle disputes by deciding the guilt or innocence of
the individuals charged with a crime
 Depending on the country, judges or juries have to
power to decide so
 Interpretation of Vague Laws Passed by Other
Branches of Government
 No law is clear so as to be reached a consensus upon
 Courts are there to interpret the vague & unclear laws
 Sometimes laws are intentionally written vaguely
Tasks of the Judiciary
 Review of the Constitutionality of Existing Law and
Policy
 Juridical review: Judiciary decides on whether new
laws/policies are line with the constitution
(constitutional juridical review) or with the existing
laws (statutory judicial review)
 Creation of New Government Policy in Response to a
Pressing Social Problem
 The courts can dictate new laws in addition to
interpreting
 The court acts like a legislator or bureaucrat: juridical
activism
 Settlement of Civil Disputes and Disputes Between
Units of Government
 Courts can solve disputes among individuals;
between a company and an individual; between two
different units of government
 Tort law concerns civil disputes. When a civilian is
harmed, the resolution of the disputes falls within the
category of tort law
 Legal Sanctioning of Particular Acts
 Providing official decision to such matters: divorce,
child adoption, name changes, distribution of
property upon someone’s death, etc…
 To what extent is juridical review compatible with
democracy?
 Who should decide whether conscientious
objection should be allowed?
 What about headscarves in government?
 Privatization?
Two ways
 Political
 Judicial
 Parties/representatives in
 Constitutional court in
the Parliament
 Executive decision of the
government
 Directly by people through a
referandum
Ankara decides
 Courts makde decisons
based on individual appeals
 European Court of Human
Rights court in Brussels
decides
Think and Discuss
What is the most important task of
the judiciary? What makes this task
so important?
The Judiciary
 Organization of the Judicial Branch
Organization of the Judiciary
 Court systems have complex hierarchical structures
(example: provincial courts at the bottom, supreme
courts at the top)
 Only one Supreme Court at the top: US, Australia,
Finland, Paraguay
 Two courts at the top (Supreme and Constitutional in
general): Benin, Gabon, Lithuania, South Africa,
South Korea, Thailand
 The United Kingdom has no juridical review.
True or False?
 Traditonally true, due to the notion of parliamentary
sovereignty, laws passed by the parliament are
constitutonal by default.
 False, with the Cosntitutional Reform Bill of 2005, the
UK has recognized that the UK courts have to take
into account the rulings of European courts in matters
of fundamental rights. Anti-terrorism bill was dclared
unconstitutional because of European rulings and
Blair was forced to change the law. A Supreme Cort
has been established with the Lords of Appeal as its
first members.
 Germany has a very strong judiciary completely
independent of the other branches of government.
 True or False?
 Yes, because of the lawless Nazi past, Germany
was founded as “Rechts Staat.” The Federal
Constitutişonal Court has powers of juridical
review over the rules and policies of other
branches. The Court, whose justices can only be
removed by the court itself, banned far-right and
far-left parties.
 No, the legislature appoints the justices (8 by the
Bundestag and 8 by the Bundesrat)
 Comparatively speaking, France has one of the
weakest judiciaries. This is bacause it has a civil law
tradition.
 True or False?
 True, in civil law, judges have less power to interpret
the law and their interpretaions do not become
binding on other judges (do not form precedent).
 False, other countries also have civil law tradition but
have stronger judiciaries.
The Judiciary
 Advantages of Strong Judiciaries
 A check on majority tyranny
 A key component of the “rule of law” in politics and
economics
 Disadvantages of Strong Judiciaries
 Power in the hands of unelected officials
 The potential to advance a political agenda
Advantages & Disadvantages of
Strong Judiciary
ADVANTAGES
DISADVANTAGES
Checks & balances the ability of Too much power in the hands of
the majority: minority protection unelected officials
provided against majority’s
“tyranny”
Importance of rule of law in
politics and conomics. Secures
rule of law, contractual relations.
Rule of law tends to prevent
corruption and thus corrupt
executives
Potential of judiciary to advance
a political and partial agenda.
Difficult to see that judges are
always objective. They might
have personal and ideological
stakes in juridical decisions
Theory of Inverse Judicial Power
 Why are some courts aggressive policymakers?
 Inverse judicial power theory: The power of the
judiciary is inversely related to the unity of other
branches
 Judiciaries become more independent when
executive and legislative branches are weak.
 Examples: Post-Communist states like Russia
(post-communist judicial activism)
The Bureaucracy
 Bureaucracy: The executive branch which oversees the
implementation of the laws that legislature makes
 Divided vertically into various departments and agencies
 Implement policies in particular areas: agriculture, labor,
environment
 It has power and autonomy fourth branch of government
 As the size of the government grows, bureaucracy grows as
well and it gets more difficult oversee bureaucratic actions
The Bureaucracy
 Tasks of the Bureaucracy
 Implementation of laws and policies
 Interpretation of existing but vague aws
 Agenda setting and advising on policy specifics
 Policy creation
Tasks of Bureaucracy
 Implementation of Laws and Policies
 To execute laws and policies made by legislative branches.
 At upper level of bureaucracy: planning of the implementation
 At lower level of bureaucracy: routine duties; inspecting individuals,
corporations, etc…
 Agenda-Setting and Advising on Policy Specifics
 At higher levels of bureaucracy, executives might promote their
area for the implementation of required policies (efforts in setting
the policy agenda)
 Bureaucrats can provide detailed information to legislators while a
specific policy is drafted
 Example: In the US, bureaucrats testify in congress during specific
policy discussions
 Middle/Lower level bureaucrats can give suggestions; their
superiors can filter these suggestions before passing them to upper
levels.
Tasks of Bureaucracy
 Interpretation of Existing but Vague Laws
 A particular law can be unclear/vague intentionally or
unintentionally.
 In vague situations, bureaucrats can fill in the blanks of
vague laws
 Policy Creation
 Bureaucracy can create policies from scratch
 Specific rules for an issue may be absent, thus the
bureaucracy can fill in the blank
Think and Discuss
What is the bureaucracy’s single
most important task? What makes
this task so important?
The Bureaucracy
 Organization of Bureaucracies
 Cabinet department or ministry
 Secretary or minister
 Civil service and civil servants
 Merit system versus spoils system
 Specialist approach versus generalist approach
Bureaucratic Organization
 Chief executive appoints the top officials in each





branch of the bureaucracy
Top officials’ tenure in office depends on chief
executive’s term
Top officials might be fired because of low
performance although chief executive is still there.
Middle Level bureaucrats are not generally appointed.
They are civil servants, and are hired because of
their expertise.
In democracies civil servants are selected by merit
system (based on competence)
Opposite of merit system is spoils system; where
even middle officials are appointed
American Federal Bureaucracy
 4 Types of government agencies: cabinet department, regulatory





agency, government corporation and independent executive
agencies
Cabinet departments are the closest to the chief executive. They are
headed by a secretary (Example: Homeland Security Department,
2002)
In other countries Cabinet Departments are known as ministries
There are 4 times more independent agencies than departments:
Environmental Protection Agency, FED, etc…
In the US Merit System, specialist approach is used (individuals with
a specific skill fill a specific role during all their governmental
career).
In European Merit System, there is generalist approach where
officials generally have a law degree and can change department
The Bureaucracy
 Advantages of Large and Powerful
Bureaucracies
 Stability
 Expertise
 Impartial and fair application of rules
 Disadvantages of Large and Powerful
Bureaucracies
 Inefficiency through overexpansion and wasteful
spending
 Power in the hands of unelected officials
 Resistance to reform and creative solutions
Advantages & Disadvantages of
Strong Bureaucracy
ADVANTAGES
DISADVANTAGES
Promotes stability. Especially good
when there is instable governments
Bureaucrats might favor expansion of
their specific departments  Monetary
burden, over-expansion
Thanks to merit system, bureaucracies
provide great amount of expertise for
relevant policies
Bureaucrats are unelected and may not
feel responsible for voters. This might
create lack of responsiveness in
bureaucracies
Enables fair application of laws;
especially specific laws
Bureaucracies might resist to reforms.
Bureaucracies are rigid organizations
and reforms might challenge their
current position.
Bureaucratic Autonomy Theory
 Bureaucracies, over time, might develop autonomy.
 It’s on the interest of bureaucrats to secure the
autonomy of their department when they get more
experienced.
 Experienced bureaucrats are more difficult to control
and to be replaced.
 CASE [BRITAIN] Permanent Secretaries: They
hold their position even when the related ministries
change. They can alter the policies by filtering the
information to be given to ministers.
Additional terms regarding
Bureaucracy
 Nomenklatura system:
 Method of establishing bureaucratic system in USSR.
The system involves a list of names loyal to the
regime. These names gain positions via their
connections and merit. The system persists in current
Russia
 Technocrats:
 Bureaucrats who are experts of their areas; and are
not ardent followers of the governments’ ideology.
 Reds:
 In China, Reds were bureaucrats –unlike technocratswho strongly adhered to communist ideology. They
conflicted with Chinese technocrats.
Egypt's aftershocks: Military vs the
people
The Military
 Similar to other parts of bureaucracy by its hierarchy and
follows standard operating procedures
 Yet, it is most imposing branch on government; thus
different from other bureaucratic organizations
 Position of the military vis-a-vis elected officials vary
across countries:
 Civilian control of the military (ex: United States):
Elected officials decide on military issues such as
military spending.
 Yet, in most other countries, military enjoys some
autonomy
Tasks of Military Under Civilian
Control
 Defending the country
 Deterring the attack of the external force
 Increasing spending on security might trigger rival
neighbors arms race
 Military can / might influence the decision on arms race
 Developing into a “Professional” Fighting Force
 Becoming more focused and specialized in military matters
such as national security
 In professionalized militaries, academics play a great role
 Controlling the Empire
 Governments used to control militaries to expand territories of
control colonies.
 Militarism: Concentration on territorial expansion and thus
great increase of military spending takes place
Think and Discuss
What is the single most important
task of the military? What makes
this task so important?
Military Rule & Praetorianism
 Coup d’état: Military officiers can intervene to
overthrow the existing civilian government. Generally,
coups are lead by small number of military officers
 Junta: A group of leaders of the various segments of a
military organization which conduct the military rule.
Juntas are observed in Latin American military regimes
 Preatorianism: A political system where the military
takes an active role in political decisions openly or
covertly
Advantages & Disadvantages of
Strong Military
ADVANTAGES
DISADVANTAGES
Can take tough policy decisions
regardless of what people can think
about. People cannot elect military
administrations
Although most military leaders take
control to end corruption and social
chaos, they may be reluctant to
surrender their power. They can think
that country will be worse off if they
relinquish their power
Strong military policies can battle
Even if military relinquishes its power,
corruption and restore order (Example:
there is no guaranty that it will no
South Korea, General Park Chung)
more interfere with politics.
New Professionalism Theory
 More professional militaries might become more focused
on issues like economic development and corruption.
 Hence such militaries might become more likely to
intervene because of domestic concerns
 Alfred Stepan’s new professionalism theory: What the
military perceives as mission is important: It might
perceive internal or external threat. Perception of internal
threats might provoke military coups.
 CASE [NIGERIA]: Nigerian army did not have to worry
about external threats, but was concerned with internal
threats. Hence Nigerian coup had domestic focus
 According to new professionalism theory, what
determines to what extent there is civilian control
over the military?
 What other factors can you think of that might
explain this?
 Who decides where the main threat comes from and
what the military’s mission should be?
 New democracies have moved……. Parliamentary
sovereignty and ……judicial/constitutional review
 A) away from; closer to
 B) closer to; away from
 What do we call it when the judiciary begins to act
like a legislator or bureaucrat?
 In your opinion, do the advantages of powerful
unelected officials outweigh their advantages?
 On which factors does the answer to the above
question depend in a paticular country?
Topic in Countries
 The United Kingdom
 Common law approach to the judiciary; relative absence
of judicial review authority; new Supreme Court
established in 2009
 Bureaucracy declined under Thatcher; culture of
subordination to elected officials, yet significant discretion
over policy details
 One of the world’s most powerful, professional, and
civilian-controlled militaries
IN THEORY AND PRACTICE
BUREAUCRATIC AUTONOMY THEORY AND THE
UNITED KINGDOM
 Bureaucratic autonomy theory
 bureaucrats try to maximize their department’s
independence
 Once bureaucrats are established, they are more
difficult to control and replace
 British bureaucracy was autonomous
 Permanent secretary – can influence government
policy
Topic in Countries
 Germany
 Independent judiciary with substantial review authority;
relatively powerful Federal Constitutional Court, but lower
courts are all under the control of the Länder
 Decentralized bureaucracy; relatively small in size
compared to other European countries
 Military under firm civilian control since WWII; has
focused more on peacekeeping activities, leaving broader
security to NATO and European Union
Topic in Countries
 India
 Hierarchical judicial structure; Supreme Court has ruled
that the legislature cannot alter constitution’s “basic
structure”
 Large bureaucracy with carefully selected elite (IAS) at
the top; poor pay and high demands lead many to leave
for private sector
 Large military; possesses nuclear weapons; generally
under civilian control
Topic in Countries
 Mexico
 Civil law tradition; practice of genuine judicial review
relatively new
 Bureaucratic appointments had been based on spoils
system; liberalization has led to increased
professionalism, but corruption remains
 The military has little political power; has taken a back
seat to civilian leaders
IN THEORY AND PRACTICE
NEW PROFESSIONALISM THEORY AND MEXICO’S
DRUG WAR
 Alfred Stepan’s new professionalism theory
 Highlights the military’s perception of its mission
 Greatest challenge to Mexico’s military is the way
against drug cartels
 Shifts mission to internal rather than external threats
Topic in Countries
 Brazil
 Complex court system; Supreme Federal Court has
ample power to check other branches
 Bureaucracy seen as comparatively competent, but
corruption continues to be a problem
 History of military involvement in government; retains
control of the Military Police, often criticized for their
brutality
Topic in Countries
 Nigeria
 Military governments neglected federal and regional
courts; fostered judicial corruption
 Rampant corruption in the bureaucracy; appointments
often due to regional, ethnic, or family ties
 On and off episodes of military authoritarianism since
independence
Topic in Countries
 Russia
 Judiciary maintains a degree of independence, but this
has decreased under Putin; corruption remains a problem
 Increase in size of bureaucracy under Putin;
appointments given to those loyal to Putin; corruption
remains a serious problem
 Civilian military control during Soviet period continued to
the present; used for internal security; hazing practices
became political issue
IN THEORY AND PRACTICE
Russia and the Theory of Inverse Judicial Power
 Inverse judicial power theory
 the courts’ power is inversely related to the power
and unity of the other branches
 Russia experiencing increasing threats to
judicial independence by Putin
Think and Discuss
Which of the theories discussed in
this chapter seems most convincing,
and why?
Topic in Countries
 China
 Courts lack independence from CCP; problems with
corruption; large numbers of civil cases filed each year
 Relatively significant bureaucratic authority over policy
implementation; increased emphasis on technical
expertise rather than ideological commitment
 People’s Liberation Army (PLA) has played a central role
in politics since 1949; relatively large military budget
Topic in Countries
 Iran
 Judiciary is constitutionally required to enforce
“ideological conformity”; Supreme Leader has strong say
over legal system; authority to review legislation given to
Guardian Council
 Unlike China, ideological loyalty is key; bureaucratic
corruption is an issue
 Somewhat weak and fractured military; Revolutionary
Guards given more power in recent years
Think and Discuss
Do the advantages of powerful
unelected officials outweigh the
disadvantages?
Country
Summary 7-1a p223
Country
Summary 7-1b p223
Country
Summary 7-1c p224