Bureaucratic activism and Colombian community mothers: the daily construction of the rule of law.

Author:Buchely, Lina
Position:Case study
 
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The central focus of this document is to build a theoretical map for what I call bureaucratic activism. This will lead us on a path through debates constructed around legal theory and the theory of administrative law and public administration. The study also seeks to explain why it is necessary to build and use this category to analyze administrative bureaucracies. The above allows us to shed light on the critical role of this type of bureaucracy in the implementation phase of public policies and how a critical approximation to law - like that which is represented by distributive analysis--generates a fertile analytical map to analyze the undetermined decisions of agents involved in public administration, as the effects of what law builds in everyday life.

Community mothers are women who take care of other families' children. They work in Community Welfare Homes (CWH), which are a social program developed from the states agencies in order to help the first childhood. Despite being a public social policy, the CWH program has an outsourcing operation and the government gives almost no funds to the operation. In order to fulfill this aim, we undertook a case study of a number of Community Welfare Homes (CWH) in four Bogota localities (San Cristobal sur, Suba, Simon Bolivar, and San Cristobal norte) and in El Espinal (Tolima) over a period of four months, from August to November 2012, analyzing the role of community mothers as street-level bureaucrats. The study combined five different data gathering mechanisms: documenting experiences in field diaries as an ethnographic technique; semi-structured interviews with employees and expert administrative staff at the Colombian Family Welfare Institute (ICBF); observation of the workings of the Community Welfare Homes; focus groups with community mothers and beneficiaries; and a documented analysis of the different types of tasks undertaken by community mothers in their daily work and focus groups. Annex 1 presents a detailed log of the activities undertaken. In sum, the research allowed us to gather information from 19 semi-structured interviews, 90 hours and 35 minutes of observation, 3 focus groups, the documentation of informal experiences with the CWH actors in a field diary and a documentary analysis of 8 official formats generated by community mothers and reviewed by the ICBF.

I want to point out that, throughout this text, I will focus on the street-level bureaucrats as an enclave from which to answer the question regarding how the state concretizes and manifests itself in the daily lives of citizens. The analysis of street-level bureaucracy that I propose questions the traditional schemes used to analyze the rule of law in four ways: (i) it destabilizes the Weberian view of bureaucracy as an impersonal hierarchy and recognizes the agency of public officials as the creators of governmental policy (Lipsky, 2010); (ii) it shows how the state is constructed through bureaucratic interactions that arise within complex power relations, and lead to contingent and unstable results (Gupta & Sharma, 2006); (iii) it recognizes the ways in which the law has a significant role in the construction of realities, given that legal norms emerge as the creators and distributors of our identities (Jaramillo, 2013); and, finally, (iv) it builds and proposes the category of bureaucratic activism, understood as the behavior of the street-level bureaucrat that goes beyond the norms and creates new meanings for such norms when they are implemented, in order to discover new realities of administrative law immersed in a fragmented state and some bureaucrats that deviate from the rule of law.

We can use the popular label pertaining to legal theory to now refer to a scenario of legal application of which legal academia has spoken little about street-level bureaucracy. (1) In this bureaucratic activism, a crisis befalls the principle of legality, which we know and which was at the center of the construction of classical administrative law (CAD). (2) The actions of the street-level bureaucrats show law as something contingent and indeterminate, which results from concrete transactions that, in contrast to that abstract and immaterial idea of the state that permeates CAD, is mundane, unstable, negotiable, and depends on the people that operate it. The activism of street-level bureaucrats is therefore found in the quotidian and political construction of the public and legal, that does not respond, in any way, to previous, determined, or state criteria. (3)

Thus, the main objective of this paper is to describe the power relations that manifest between the citizen and the bureaucrat in the interaction between the dynamics of power that emphasize instability and contingency. The case of the street-level bureaucrats can also reconfigure what we understand by rule of law. This focus, as well as placing us within this specific tradition, attempts for these same arguments, traditionally used to analyze judicial conduct, to serve for the analysis of the conduct of another kind of legal player: the street-level bureaucrats (Frank, 2009; Holmes, 1987; Llewellyn, 2009).

The analysis of the CWH as a social policy that creates identities and distributes resources allows me, on the one hand, to articulate an answer to the question regarding the physical appearance of the state--given that its existence is recognized through the presence of its officials in the beneficiary municipalities and localities--and, on the other, to provide an interesting example in terms of distributive analysis: the presence of the public policy, which appears as a single and universal form of regulation, hides the contingence of political choices in terms of the delivery of welfare and obscures the material effects derived from this transaction. (4)

The social space chosen is an interesting border location between the private and the public, in which women bureaucrats have permanent contact with citizens and where they develop a bureaucratic performance, but in which they have an unstable relationship with the government, which does not recognize them as its agents. The results of their actions are completely heterogeneous, despite the fact that the justifications for their actions are always supported by the law, which they perceive as systematic and objective (Hoyos, 2002). The intersection of this space that allows us to analyze topics related to legality, bureaucratic behavior, social policy, and reproductive work, is important when it comes to justifying its selection.

In addition, the CWH offer fertile ground to describe first-level street-level bureaucrats as a materialization of implicit public power in the theoretical contribution of the project. Within a social program characterized by high levels of heterogeneity (Bernal et al., 2009; Hoyos 2002; ICBF, 1997) and by operating schemes that vary according to the particular characteristics of the space and the people that manage this space (community mothers and supporting families), the CWH are a perfect example of the volatile and discretionary exercise of public power by street-level bureaucrats, within the power relations characterized by what I have denominated a double indetermination. That is, an ambiguity of the statutes and the instability of the power relations exercised by those involved in the execution of social policy.

This double indetermination is key in enabling the case study to be able to intervene in the debates that I refer to as bureaucratic activism and the rule of law. The way in which community mothers make their decisions and the reality created by the CWH are a direct response to both the questions formulated by the pathology of the state and to the problems of analysis set out by administrative legalism. First, the public is represented by individuals precariously associated to the state, in charge of distributing public goods in transition in which the citizens participate active and constantly. Second, the ways in which these transactions operate exceed what has been anticipated by the rule of law and the depoliticized perception of the norms. The rules that guide such negotiations are created within the CWH in the daily experiences of the community mothers and there are no preexisting, correct or predictable results that we could know of before the experience.

Scope and Impact of the Paper

The goal of this paper is to build a theoretical argument through which to link the "not legal public sphere" with administrative law or "central legality." (5) As I explained previously, the focus of this work highlights the relations of centrality and periphery in the arena of Colombian administrative law. While the rule of law is at the center of the regulations pertaining to administrative law, street-level bureaucrats, feminism and social policy are relegated, by the law, to marginal spaces. Here, what's at stake is, at the end of the day, who rules on the law and who is subject to that which is ruled by the law in a space in which "law apparently does not participate."

Thus, this study advances our understanding of the new challenges that the public sphere, and in particular administrative law, has to face in precarious legal schemes such as those pertaining to the community mothers. Despite the truth in the fact that institutional designs and legal frameworks do not contemplate the actions of the community mothers, within the principle of legality--once it is made clear that we are not dealing with public officials or state employees--it is clear that the CWH--like many other daily realities--act within the "non-legal public sphere." (6) We all trust that these people belong to the state because of the logos they use, their discourse and the identity that they develop.

This symbolic construction of the public, despite being one of schemes of legality, is related to administrative law. The scheme of competencies defined by classical...

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