What is government capable of doing?
As previous posts suggest, both Marxists and institutional economists often believe that government is but an instrument of ruling classes and cohorts.
At the same time, some of history’s most spectacular developmental successes have been the outgrowth of bureaucracies operating with seeming independence from society.
Peter Evans details how this works in Embedded Autonomy, a book of case studies on the IT policies of Korea, Brazil and India. Government officials set up channels to learn from and coordinate with business. When it worked well, officials were not co-opted by the businesses they worked with, but had a functional division of labor.
Evans’ book is a classic account of the potential and pitfalls for government support in the industrial sector, and the need for the autonomy of government as a whole from the private sector. But autonomy could also be examined from the standpoint of independent branches of government.
For instance, Alec Stone-Sweet in Governing With Judges writes about judicial autonomy in France, Germany, Spain and Italy during the post-war period. But while Evans examined bureaucrats’ relations with business, Stone-Sweet examines constitutional judges’ interactions with other groups in government. Both authors have little use for bright lines and formal distinctions between the different spheres: there is two-way influence and identity formation. Stone-Sweet, however, sees “autonomy” as not only the ability of agents (judges) to operate independently from their principals (parliaments), but also as the ability to shape principals’ discourse and way of looking at the world.
Before the second World War, parliamentary supremacy was favored by most European legal scholars and lawmakers: courts merely applied statute. However, partially at US insistence during the reconstruction phase, Germany and Italy (and later Spain and France) developed constitutional courts that could rule on the legality of state action.
Stone-Sweet details how constitutional judges began exercising increasing levels of influence on parliaments and ordinary courts, which began to use the language of constitutional law in their own projects. Whether one examines the trajectory of abortion rights in Germany, transsexual rights in Italy, women’s electoral representation in France, or Catalan language rights in Spain, constitutional courts were able to intervene and shape political processes. One reason they were able to do this is because opposition parties can refer (or threaten to refer) majority party legislation to the constitutional courts – something that creates an ongoing relationship between politicians and judges.
This is an example of the pay-off from legal discourse that can only come from government apparatuses, and how institutional choices (sometimes in the distant past) define the scope for law-flavored politics.