Aug. 29, 2011
Law school class to examine disconnect between governments and those they govern
Demonstrations against governments that seem out of touch with the people they represent have been generating headlines recently throughout the western democracies.
In England and Greece, demonstrations against government austerity measures turned into riots, while in the United States, Tea Party members have become involved in the Republican Party and rail against big government spending.
A class offered this fall at the University of Iowa College of Law will explore how changes in government and political systems may have contributed to this by leaving citizens alienated and increasingly disconnected from those who make society's rules. "The Future of Public Law: Has the Experiment Failed?" will look at how the concept of public law has become predominant at the international law level, especially as it relates to the European Union (EU), and its impact in the United States.
The class, taught by law professors John Reitz (bottom, right) and Alexander Somek (top, left), will focus particularly on administrative law, a system in which government bodies determine the way they carry out laws and how they interact with citizens. Ideally, Somek said, administrative law works as a check on government and protects citizens against excessive use of governmental authority.
But he said administrative law is being used more and more often to write rules and policies outside the traditional political route, in which that work is perform by elected representatives. Increasingly, rules are being made by technicians and specialists who are appointed by governments but have little or no responsibility to the everyday citizen. This is particularly true in Europe, where the EU is rife with committees and boards that set rules and policies but are generally not responsible to elected officials. For instance, Somek said the ongoing European debt crisis is being handled largely outside the European constitutional framework and by members of the executive branch without involvement of Parliament.
"Law becomes clearly secondary when governments act under the impression of urgency," he said.
Obeying the constraints set by administrative law is also inconvenient and—so the story goes—prone to generating inefficiency, Somek said. The United States has its own examples of governments bailing out of the governing business, as when states privatize public assets like highways and prisons, and private contractors perform the kind of wartime work in Iraq and Afghanistan that the military used to handle.
In some cases, governments have abandoned rule-making altogether and let private organizations do most of the heavy lifting of setting regulations. For example, the Internet Corporation for Assigned Names and Numbers (ICANN) is the organization that assigns and regulates Internet domain names but is a completely private organization with no connection to government at all.
Similarly, the Basel Committee on Banking Supervision sets rules for international banking standards and the International Accounting Standards Board sets rules for accounting procedures. Since none of these organizations is responsible to any government, Reitz points out that decisions that impact peoples' lives are made without any real input from them or their elected representatives.
"Political power has become diffuse, which leads to issues of transparency and public input," he said. "Who's making the rules that govern our lives and who's looking out for the common people?"
When people ask these questions and can't get reasonable answers, Reitz said it causes them to question the legitimacy of their elected governments.
"What happens in elected legislative bodies doesn't seem to matter anymore and people begin to lose faith in those institutions," he said. "Over the long term, that leads to a disconnect, as people no longer believe the political process is available to them to help solve problems, a phenomenon has been described by the British political scientist Colin Crouch as "Post-Democracy."
As a result, frustration sets in and citizens begin to lash out, whether it takes the form of riots in Europe, or political movements in the United States that call for drastically reducing the size of a government that they believe no longer represents them.
Reitz noted that some people look to the courts to save democratic control over the government by limiting officials to the powers granted by the legislature. But increasingly people in the mature democracies are losing faith that courts are adequate to the job, he said.
Reitz doesn't pretend the class will find a way to fix public law or to replace it if it's irretrievably broken. But the course will "shine a light into some dark places," he said.
STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Iowa City, Iowa 52242-2500
MEDIA CONTACTS: Alexander Somek, professor of law, 319-335-9057, firstname.lastname@example.org; John Reitz, professor of law, 319-335-9086, email@example.com; Tom Snee, University News Services, 319-384-0010 (office), 319-541-8434 (cell), firstname.lastname@example.org