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From Street-Level to System-Level Bureaucracies: How Information and Communication Technology Is Transforming Administrative Discretion and Constitutional Control1
The use of information and communication technology (ICT) is rapidly changing the structure of a number of large, executive public agencies. They used to be machine bureaucracies in which street-level officials exercised ample administrative discretion in dealing with individual clients. In some realms, the street-level bureaucrats have vanished. Instead of street-level bureaucracies, they have become system-level bureaucracies. System analysts and software designers are the key actors in these executive agencies. This article explores the implications of this transformation from the perspective of the constitutional state. Thanks to ICT, the implementation of the law has virtually been perfected. However, some new issues rise: What about the discretionary power of the system-level bureaucrats? How can we guarantee due process and fairness in difficult cases? The article ends with several institutional innovations that may help to embed these system-level bureaucracies in the constitutional state.
The Issue: Discretionary Power of Civil Servants in the Constitutional State
Bureaucracy is no longer what it once was. The term conjures up mental visions of massive buildings in which large groups of men-bureaucrats are, without exception, men-encumbered by stacks of files frown heavily into duplicates and triplicates of important reports embellished with impressive-looking signatures. Bureaucrats are well known to be small-minded pencil pushers who can reject or approve an application for no better reason than the fact that your existence has somehow annoyed them.
This was the specter that haunted Weber, Hayek, and Popper: Large numbers of faceless officials whose freies Ermessen (discretionary power) could cause an open society to be smothered in the bud. Decades of legal and administrative ingenuity have been devoted to curtailing the influence of these tiny cogs in the wheel of power. An elaborate system of legal protection and the sweeping application of the principles of sound administration over the past decades have more or less successfully led to the erection of a cordon sanitair around the majority of large-scale executive organizations. Hayek's prophecy of doom-in which he held that the rise of the welfare state, with its social benefits and subsidies, licenses and decisions, window clerks and discretionary powers, would irrevocably lead us on a road to serfdom-has...