Accountability in the process of managing common matters

From Cyberlaw

One of the most powerful mechanisms of enhancing efficiency and preserving legitimacy is the process of calling to account (Even though, as any other ideas, it is not immune to disadvantages; (Bovens: 1998, 41) mentions in that context that: ‘Accounting for oneself does not always have healing effects. Too much emphasis on responsibility can lead to apathy, pushing the buck, and a general cramping of relations and behaviour’). Calling to account is intrinsically related to the very core of responsibility, so that “I can be asked the question “why did you do it?” and be obliged to give an answer”: J. R. Lucas, Responsibility (New York: Oxford University Press, 1993): 5. Being held to account before a forum is the vital element of being responsible (Herman R. van Gunsteren, Denken over politieke verantwoordelijkheid (Rijksuniversiteit Leiden, Alpen aan den Rijn, 1974): 16) and the very core of what some call accountability (Mark Bovens, The Quest for Responsibility (Cambridge University Press, 1998): 24) and others call liability-responsibility (H. L.A. Hart, Punishment and responsibility: Essays in the Philosophy of Law (Oxford University Press, 1968): 215). Hierarchy is the very feature of bureaucracy, so bureaucratically organized governments have been based on hierarchical model of responsibility ever since they were established. The model may be traced back to the 19th century Prussia, where, due to the Napoleonic influence, hierarchical model, the unitary or office system (Einheits- oder Bureausystem) replaced an earlier system of collegial administration (Kollegialsystem). Subsequently the idea of hierarchical responsibility spread across Europe and pervaded through the American administrative system (The model was propagated mainly by Woodrow Wilson. See W. Wilson The Study of Administration, 1887; Frank Goodnow, Politics and Administration: A Study in Government (Transaction Publishers; New Ed edition, 2003 [1900], after (Bovens: 1998): 74-75). Hierarchical responsibility requires clear and formal procedures with unambiguous division of powers/liabilities. Otherwise a blockade called by Dennis Thompson the “problem of many hands” (Dennis Thompson, “Moral Responsibility of Public Officials: The Problem of Many Hands,” American Political Science Review 74 (1980): 905-16) emerges. The problem is owed to the fact that blurred competencies do not allow for a clear decision on who is responsible for what, watering down the whole concept. Because of the problem of many hands, hierarchical responsibility does not fit well to the roll-out of adhocracy (http://en.wikipedia.org/wiki/Adhocracy#_note-Travica-7), quangos nor public-private networks. Its efficiency is questioned even within the very original pattern of ministerial responsibility. [Bovens 1998: 88-89] points at the cases demonstrating that ministerial responsibility, pivotal for the doctrine of hierarchical control, does not hold in practice of Netherlands and UK. He quotes C. Turpin, British Government and the Constitution: Text, Cases and Materials. 2nd ed. (Cambridge University Press, 1994): 438 “the system does not appear to provide adequately for the accountability for civil servants, who nowadays … themselves formulate policies and take numberless decisions of importance without reference to ministers”. So what to do? How to strengthen the vanishing hierarchical control? One option is enhanced individual, pecuniary accountability of governmental employees. Experiments in that regard, if pushed to the outer limits, were not promising, however. Aaron Wildawsky, “Why Planning Fails in Nepal,” Administrative Science Quarterly 17 (1972): 508-28 described consequences of the individual pecuniary responsibility of Nepalese officials (and their families to the seventh generation) for the legitimacy of public expenditures they were undertaking from the royal treasury. In consequence no one was ready to take the risk, blame and possible costs of action. Decisionmaking inertia prevailed, as efficacy was sacrificed for the sake of legitimacy.

Another option is the enhanced democratic accountability. In its original version, democratic accountability is embodied by the ministerial responsible to Parliament. Some suggest extending it to other echelons of government. For instance B.J. O’Toole, R.A. Chapman, Parliamentary Accountability [in:] B.J. O’Toole, R.A. Chapman, eds., Next Steps: Improving Management in Government (Dartmouth, 1995) calls for a certain degree of parliamentary accountability on the part of civil servants. But to remain feasible, this kind of control would have to be limited anyway. Who should be left outside the mechanism? Who should be parliamentary accountable and who should not? These questions can not be convincingly resolved, undermining the whole idea. But another person who generally agreed on the flawed enhanced parliamentary, democratic accountability might put us on the better track. [Bovens 1998: 138] agrees with Toole and Chapman, with a reservation that the accountability should be limited to the information and debate phases, leaving the sanction phase outside the procedure. Information and debate. Parliaments are not really the most appropriate places if it is only about information and debate. But free media are. Information and debate have always been their modus operandi and salutary force. So why not to enhance democratic accountability by enhancing the number of media and facilitating their access to governmental information?

Another track is encapsulated in the mechanisms of the U.S. Sarbanes-Oxley Act of 2002, even though this Act belongs to another, corporate, realm.