wk 8 Assignment: Application: Foundations of Bureaucratic Ethics

Assignment: Application: Foundations of Bureaucratic EthicsContemporary policy debates revolve around interpretations of how a democratic nation is to be governed. The ongoing controversy over the meaning of the Second Amendment to the United States Constitution is an example of a modern-day issue rooted in early democratic principles. Given the nature of gun violence in the United States, the right to bear arms is a heated policy issue that warrants in-depth reflection of what was intended for this fundamental right. Part of the modern-day argument centers on whether government intervention in the form of gun control is what the Founding Fathers would have wanted. Debates about the proper role of government are as old as the government itself. The very fact that there still is concern about what was intended is an indication that founding periods in government are viewed as normative events, that is, events that established or instituted democratic standards or became the basis for democracy as we interpret it.In previous weeks, you have analyzed democratic concepts, democratic principles, and democratic processes. Now you are asked to think more concretely about those issues by assessing whether democratic governance constitutes the very foundation of bureaucratic ethics. Those working in government are required to adhere to a professional code of ethics. American public servants take an oath upon appointment or election to uphold the principles of the Constitution as part of their professional duties. For example, a public servant should support the ideas of separation of powers and rule of law, which are basic tenets of American democratic government. The question remains, however, whether taking action that advances the cause of democratic governance is a legitimate way to assess ethical behavior.To prepare for this Assignment:Review the article “Public Management as Ethics” in this week’s Learning Resources. Focus on the considerations of a values checklist as an aid in developing ethical public servants. Also, focus on the values checklist as it applies to the practice of public management.Review the article “Ethics and Comparative Administration” in this week’s Learning Resources. Think about the ethical obligations of public administrators as public servants.Consider the argument that democratic governance is the foundation of bureaucratic ethics.Think about whether you agree with this argument.Consider what you believe to be “true” about the foundation(s) of bureaucratic ethics.The Assignment (2 pages):Read the “The United Nations of South America” document (located in this week’s Learning Resources). Respond to the questions at the end of this document.Support your Assignment with specific references to all resources used in its preparation. You are asked to provide a reference list only for those resources not included in the Learning Resources for this course.


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Ethics and
A Constitutional Commentary
This commentary invites readers to consider the merits of approaching administrative
ethics in constitutional terms. Relying on his familiarity with French and American
constitutional traditions, the author provides a concrete example of constitutionally
based ethics in a comparative context. Following Tocqueville’s advice to learn about
one’s own country by studying another, he concludes the essay by showing how
the French strong-state tradition illuminates the troublesome American problem of
af?rmative action.
For many more years than he would care to acknowledge, the author has defended
an approach to administrative ethics based on the Constitution of the United States.1
It was a particular pleasure to receive an invitation to participate in a conference
on comparative ethics held in Leuven, Belgium, in June 2005. It was clear that the
comparative dimension of the conference would be a challenge to expand these
interests and to test ideas on constitutionalism in a broader context than the friendly
con?nes of the United States. The purpose of this brief commentary is to report the
results of these efforts, the most important of which was to provide other citizens of
the United States with what one hopes is a fresh and helpful way of thinking about
af?rmative action. This insight arose through re?ection upon the French tradition
of a strong state as an alternative to the American constitutional tradition, a matter
addressed in the “closing re?ection” on this commentary. It is hoped that the fruits
of my re?ection will encourage scholars in the administrative ethics ?eld to give
greater attention to constitutionalism in their own countries and elsewhere.
Doing so would be quite timely because of the strong emphasis on governance in
present-day scholarship. What can be more intrinsically linked to governance than
a constitution? Furthermore, New Public Management scholars are surely aware
of the frequent criticism of their work for failing to give suf?cient attention to the
rule of law. Constitutions are legal documents (or traditions) that offer a response
Public Integrity, Winter 2007–8, vol. 10, no. 1, pp. 65–74.
© 2008 ASPA. All rights reserved.
ISSN 1099-9922/2008 $9.50 + 0.00.
DOI 10.2753/PIN1099-9922100105
John A. Rohr
to these criticisms without burdening the New Public Mangement with the shallow
legalisms that led its adherents away from law in the ?rst place.
The discussion in this paper falls into two principal sections. The ?rst merely
reports several constitutional texts and their obvious implications for ethics. They
are simply invitations to ethics scholars with suf?cient knowledge of the countries
mentioned to examine the constitutional-administrative relationships therein. I stumbled
New Public Management scholars are
upon these texts in the course of my own
surely aware of the frequent criticism
work, but speci?c knowledge of the aforementioned countries is required to undertake
of their work for failing to give
a serious study of their constitutional tradisufficient attention to the rule of law.
tions, ethical standards, and administrative
practices. It is hoped that readers who ?nd
some merit in a constitutional approach to ethics will develop more fully the themes
touched upon so lightly here.
The second section compares and contrasts in some detail the constitutionaladministrative-ethical links in two countries, the United States and France. The
text closes with a re?ection on how a constitutional approach to ethics might
illuminate the dark corners of the troublesome issue of af?rmative action. Following Tocqueville’s advice, one learns about one’s own country by studying another
Starting with North America, let us note at the outset that the most interesting aspect
of the Canadian constitution is what it does not say rather than what it says. The
constitution of Canada is fundamentally composed of two acts of the British Parliament. The text of the ?rst was written by Canadians in the mid-1860s and voted
into law in London in 1867. It brought into being the Dominion of Canada, which
consolidated the previously separate colonies of Nova Scotia, New Brunswick,
Ontario, and Quebec.2 The second British North America Act, which is now called
the Constitutional Act, was voted by Parliament in 1982 and served to ful?ll Prime
Minister Trudeau’s goal to “repatriate” the constitution to Canada. Remarkably,
neither text mentions the of?ce of prime minister of Canada. Instead, the principles
of government found at Westminster are proclaimed as the salient institutions of the
new dominion established in 1867. The Canadians proceeded to develop their own
interpretation of what the Westminster principles would mean in practice.
The Constitution Act of 1982 contains a provision that re?ects the ongoing con?ict
over the special status of Quebec within Canada. It is called the “notwithstanding
clause” and permits any provincial legislature or the parliament at Ottawa to continue to enforce a law “notwithstanding” the fact that it has been found to violate the
Charter of Rights, an integral part of the Constitution Act of 1982. The grace period
of noncompliance lasts ?ve years and can be renewed. This clause has been used
only once, and that was by Quebec to maintain in force certain language restrictions
that the Canadian courts had found unconstitutional. The notwithstanding clause
gives students of administration a rare opportunity to contemplate the intricacies of
WINTER 2007–8
Ethics and Comparative Administration
administrators enforcing an unconstitutional law and doing so openly with no fear
of adverse consequences.
The United States
The ?rst section of the second article of the Constitution of the United State asserts, “The executive Power shall be vested in a President of the United States of
America.” A perennial question is just how much of the executive power is vested
in the president. “All of it,” say the president’s friends. And why? Because Article I,
which describes the legislative branch, states, “all legislative Powers herein granted
shall be vested in the Congress of the United States.” The words “herein granted”
are conspicuously absent from Article II. As to Congress, the words mean that no
institution other than Congress has legislative authority, but it does not mean that
Congress has all conceivable legislative powers. The absence of these limiting words
in the second article suggests that the framers intended to give all executive power
to the president.
Upon closer examination, however, it turns out to be not quite so simple. First,
Article II speaks explicitly of the “heads” of the executive departments. Now surely
the heads of the executive departments must have some sort of executive authority. But if they have some executive authority, the president cannot have all of it.
Hence, the “executive power” clause does not vest all the executive power in the
Furthermore, Article II, section 3 states that the president shall take care that
the laws are faithfully executed. He also has authority to commission of?cers to
this end. Now if the president has the authority to see that the laws are faithfully
executed, what kind of authority are the executive of?cers exercising? Surely they
exercise executive authority, and if they have some, the president cannot have it
all. This modest view of executive power is quite compatible with the limited state
envisioned in the Constitution, the Federalist Papers (Cooke 1961), and the writings
of the Anti-Federalists.
Disputes over presidential authority have been part of the American constitutional
tradition throughout the history of the Republic. They raise troubling ethical questions for administrators uncertain of the scope of their superiors’ authority.
The importance of these questions is considerably heightened when, as is the
case at the time of this writing (November 2005), the president and Congress are
in the midst of a bitter struggle.
Turning to Europe, Spain is a clear example of the European tradition of the strong
administrative state grounded in constitutional law. For example, the constitutional
text signals a strong interventionist state when we read that the “public authorities
ensure . . . legal protection of the family” and “maintain a public Social Security
system for all citizens guaranteeing adequate social assistance and bene?ts in situations of hardship.” They also encourage “the proper use of leisure time” (§§ 39, 41,
and 43). The enumeration of these duties of the state in a constitutional text contrasts
sharply with the United States, where such bene?ts, to the extent they exist at all,
are found in statutes rather than in the Constitution. As has often been noted, the
WINTER 2007–8
John A. Rohr
constitutional rights of Americans are usually worded negatively—“Congress shall
make no law . . .”; “the right of the people to be secure in their persons, houses . . .
shall not be violated”; “nor shall [any person] be compelled in any criminal case to be
a witness against himself,” and so on. The modern administrative-welfare state is there
for all to see in the Spanish constitution, whereas its American counterpart gets there
by the back door of the commerce clause and sympathetic judicial interpretations.
The Spanish constitution also provides explicitly for a civil service and spells out
the administrative procedures for rule-making and other forms of administrative action that are all handled by statute in the United States. Thus, Spanish civil servants
inclined to seek ethical guidance in their constitution are more likely to ?nd principles
directly related to administration than their U.S. and Canadian counterparts.
Czech Republic
Of all the stories of constitutional upheaval in Eastern Europe during the ?nal years of
the last century, none is more fascinating than the great “velvet revolution” whereby
Czechoslovakia threw off the yoke of its Soviet masters. Then came the “velvet divorce,” whereby Czechoslovakia divided itself into two separate sovereign states. Both
events were called “velvet” because of the seeming ease with which the Czechs and
Slovaks brought about these amazing changes. In reality, of course, such monumental
changes are never easy, and the Czech experience was no exception. A leading Czech
constitutional scholar has chronicled in careful detail the almost insurmountable task
of putting such startling events into proper constitutional form (Pavlicek 2003).
Czechoslovakia was created in 1918 amid the ruins of the Austro-Hungarian
empire to which its several territories had belonged. There followed a glorious
period of prosperous democracy between the wars and then came the grim years
of occupation, ?rst by the Nazis and then by Soviet forces. The constitutional history of the Czech Republic is above all else the story of a nation trying to catch up
with spectacular, fast-moving events and subjecting them to the stabilizing force
of constitutional law. Administrative questions invoked constitutional principles of
the highest order during the troubling times when the civil service was purged of
those who had gone too far in trying to please the Soviet Union.
France and America
The second section of this paper takes a close look at the two countries with which
the author is most familiar, both personally and professionally, the United States
and France. The links between constitutions, ethics, and administration in each
country will be elucidated. These links surely exist in both countries, but they do so
in suf?ciently different ways as to be of interest for the purposes of this treatise.
The author lived in France through most of 1990 as a Fulbright Research Scholar
and returned for three months in 1993 to complete the project. The purpose was to
write a book on public service ethics in France. The plan was to follow the approach
taken in the United States of grounding public service ethics in an oath to uphold a
constitution—in this case the constitution of the Fifth Republic of 1958. Obviously
there were profound differences between the two countries, but it seemed likely that
an oath to uphold the constitution would be a good starting point for studying them.
Imagine my chagrin when I discovered that no such oath is taken in France. Worse,
a prominent French political scientist proclaimed clearly that “the very thought
WINTER 2007–8
Ethics and Comparative Administration
of such an oath makes Frenchmen shiver” (Toinet 1988). There are two reasons
for this hostility to oaths. The ?rst is that the constantly shifting of regimes in the
aftermath of the French Revolution led to a multiplication of oaths, many of which
were ?atly at odds with the others. To save their lives, civil servants continued to
swear their loyalty to whatever happened to be the government of the day—constitutional monarchy, republic, directorate, consulate, empire, or restored monarchy.
Civil servants who had sworn to uphold the constitutional monarchy in 1791 found
within themselves suf?cient moral ?exibility to swear a few years later their “hatred
of royalty” and just a few years after that their “?delity to the emperor.” With the
monarchy safely restored, they once again swore ?delity to the king. Historians tell
us that there were 726 civil servants who
served in every regime from 1789 to 1815.
Obviously there were profound differences
They are known to history as les girouettes, the weathercocks. The most famous of between the two countries, but it seemed
their breed was Charles Maurice de Tal- likely that an oath to uphold the
leyrand-Périgord, a bishop no less during constitution would be a good starting
the old regime, who went on to become a point for studying them. Imagine my
world-class survivor. When he came out
chagrin when I discovered that no such
of retirement in 1830 to swear yet another
oath to yet another king—Louis Philippe, oath is taken in France.
duc d’Orléans—he assured His Majesty
that one more oath would create no problem for him. Smiling slyly, he said, “Sire,
this is my seventeenth oath” (Rohr 1995). It is no wonder that the French have
developed a profound cynicism about oaths of public service.
A second reason for the French hostility to oath taking is more recent. Oaths
are looked upon as incompatible with republican institutions. In fact, no oaths of
loyalty were required during the Second, Third, and Fourth Republics. But an oath
of loyalty to Marshal Pétain was most emphatically demanded during the Vichy
regime, which made no pretense of being a republic.
These history lessons steered the author away from an oath to uphold the constitution of the Fifth Republic and prompted some pondering on just what might
constitute the moral foundation of French public service. As an avid reader of
General de Gaulle’s memoirs, one recalls that he always thought about France “in
a certain way” (de Gaulle 1955), but just what that certain way might be was never
entirely clear. The eagerness to study de Gaulle closely was sparked by 1990 being
the centenary of his birth, and the bookstores of Paris were bulging with new books
on the great man. Immersed in writings by and about de Gaulle, one became increasingly impressed by the rich normative connotations of “the state” in his works and
those of other thoughtful French authors. In the opening paragraph of his second
memoir, the general asserts that “the State . . . is answerable for France is in charge,
at one and the same time, of yesterday’s heritage, today’s interests, and tomorrow’s
hopes.” This powerful rhetoric captures nicely the moral force of the state, a notion
that ?nds no place in American public discourse. Americans have their heritage,
their interests, and their hopes but they are likely to package them in the “public
interest” or even in the “spirit of the Founding Fathers,” yet surely not in the state
as an institution answerable for all of this.
In his earlier memoir from World War II, de Gaulle had blamed “the feebleness
of the state” during the years between the two great wars for the humiliating defeat
WINTER 2007–8
John A. Rohr
France suffered in 1940. The state was enfeebled because political parties representing highly particular interests rather than France as a whole had captured it.
To avoid backsliding by his fellow citizens in the euphoria of liberation, de Gaulle
writes that even in those heady times he was determined to “mold all minds into a
single national impulse” and also to “cause the ?gure and the authority of the State
to appear at once” (Cook 1983). Thus, it was not by accident that de Gaulle took
the famous detour to the prefecture of police on his way to a liberation rally at the
Hôtel de Ville. He made clear his control over the police as a crucial element in the
apparatus of the state, thereby linking two key attributes of the state—the solidarity
of the people in the joy of liberation and the need for discipline to face the tasks
that lay ahead.
Throughout his retirement from public
life during the Fourth Republic (1946–1958),
Commentators have often noted that in
the United States rights are established de Gaulle never ceased to call for “the reform
of the state”—an expression that echoed
negatively . . . whereas in France they
his wartime pledge to “return the State to
are often positive grants from the state. France.”
De Gaulle’s rhetoric ?t the strong state
tradition of France, whereas the same words would have been ignored in America.
Without the least embarrassment, de Gaulle could speak of himself as representing
the whole of France, as opposed to its particularized interests. American politicians
would have to use such language with the utmost caution, because it is dif?cult to
accommodate any idea of a “whole” within the loose con?nes of American federalism compounded by pluralism. Indeed the very grammar of the name of the
country—a plural noun (states) modi?ed by an adjective (united)—mocks the idea
of a comprehensive whole.
De Gaulle, of course, was not alone in invoking the rhetorical power of the state.
On the last day of 1991, President François Mitterrand, following a long French tradition, extended his best wishes for the New Year on national television and offered
his countrymen a long list of national priorities—education, employment, greater
equality in sharing bene?ts—but above all else, “we have need of the State and of
its authority in order to control private interests.” It is simply inconceivable that an
American president would use such language on such an occasion.
For all their reverence of the state, however, the French are alert to the possibilities of abuse. They have coined the word étatisme to express excessive reliance on
the state. This word always appears to be used pejoratively and roughly parallels
the English word “statist.” It is not that the French are blind to the dangers of the
state, but they are also aware of its enormous potential for good. To put it another
way—the next time you are waiting impatiently in a post of?ce line in Paris, recall
that the grumpy old man who complains about the “stupid, incompetent bureaucrats”
would like nothing better than for his children or grandchildren to be fortunate
enough to win admission to the Ecole Nationale d’Administration or the Ecole
This section of the paper concludes with a concrete illustration of how different constitutional ideas lead to differe …
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