Paper/Speech Details of Conference Program for the 27th NISPAcee Annual Conference Program Overview Panel: The Rule of Law & Public Administration Author(s) Istvan Stumpf Ludovika University of Public Service Budapest Hungary Title Challenges of Rule of Law: Juristocracy, Deep State, Administrative State File Paper files are available only for conference participants, please login first. Presenter Istvan Stumpf Abstract I’ve been advocating the rediscovery of the state and the Neo-Weberian State for over a decade (2008, 20014) as an antidote for the shortcomings and failures of a market-based government. In the paradigm of Good Government the state can be considered ’Weberian’ if - among other characteristics -the legitimacy and system of norms are strengthened, public law including public administration law continues to remain a key tool in the function of the rule of law and in the relationship between the citizen and the state; furthermore if a strong public service is preserved by maintaining the ethos of the public servant, with special status, culture and conditions. On one hand, judicial review and the judicial control of the public administration are essential for the overall legitimacy of a constitutional democracy and as a safeguard against regulations and acts of the public administration contrary to the rule of law or to fundamental rights. No good government is possible neither without the normative system, legitimacy and rationality embodied in state administration and the ethos of public service as guarding constitutional principles and respecting professional and legal standards. A strong judiciary and a strong public service are both important guarantees of rule of law. On the other hand, however, certain malfunctions of the judicial system or of the state agencies and their bureaucracy itself may lead to just the opposite direction and constitute a practical challenge to democratic governance based on the rule of law: ‘juristocracy’ (and different aspects of it: judicial governance, judicial populism, judicial activism) and ‘administrative state’ (furthermore ‘deep state’). In the past decades we have witnessed at home and around the world the valorization of judicial review in the framework of ’legal constitutionalism’. Both political and academic criticism is voiced regarding ’law making’ activity of supreme and constitutional courts, which is considered to unjustifiably limit the maneuvering capacity of legislative and executive powers to solve social and economic problems. This phenomenon and its criticism take different forms (both in theory and in practice) in different countries (e.g. political constitutionalism), but there is a similarity in tensions and dynamics: an ambition to shift the emphasis from the definite primacy of the protection of basic rights in the direction of questions concerning the protection of the nation’s latitude. My hypothesis is that the ambition to make national governments more effective and the theory of political constitutionalism are not contrary to the concept of rule of law (both aims can be furthered in alignment with each other). My study examines the aforementioned problems principally focusing on Hungary, considering the regulatory framework, constitutional court decisions, based on the conceptual framework of Hungarian and international academic literature.
