Legal reform need not come first: Merit‐based civil service management in law and practice

Published date01 September 2017
AuthorChristian Schuster
Date01 September 2017
Legal reform need not come first: Merit-based
civil service management in law and practice
Christian Schuster
School of Public Policy, University College
London, UK
Christian Schuster, School of Public Policy,
University College London, 29/30 Tavistock
Square, London WC1H 9QU, UK.
Introducing merit recruitment of public servants is a central good
governance reform. To move towards merit in practice, legislation
which mandates merit recruitment is considered a necessary but
insufficient first step by many scholars and practitioners. Merit-
based civil service legislation should thus be sought before reform
in practice. This article challenges this reasoning. It argues that
merit laws are neither sufficient nor necessary: they leave the
incumbents possibility frontier for patronage and meritocracy in
practice unaffected. Large- and small-n evidence supports this
assertion. Analyses of an original dataset of coded civil service leg-
islation in 117 countries from 1975 to 2015 suggest that countries
can attain meritocratic recruitment with and without legal merit
requirements. Subsequently, a comparison of Paraguay and the
Dominican Republic provides micro-evidence for the underlying
mechanism. Conventional wisdom about the sequencing of gov-
ernance reforms in developing countries may thus be misleading:
legal reform need not come first.
Introducing merit-based civil service management in patronage states is a central good government reform
(Dahlström et al. 2012). In patronage states, political and personal criteria largely determine bureaucratic recruit-
ment and careers. By contrast, in merit-based states, the most professionally qualified candidates for recruitment
and promotion are selected. Giving pride of place to merit reforms is motivated by their development impact.
Merit-based civil services are empirically associated with economic growth (Evans and Rauch 1999); lower poverty
(Henderson et al. 2007); reduced corruption (Charron et al. 2017; Dahlström et al. 2011; Oliveros and Schuster
2017); and greater democratic stability, to name a few (Cornell and Lapuente 2014).
Yet, for many developing countries, meritocratic civil services remain elusive. According to expert survey data,
political criteria trump merit criteria in personnel recruitment in 64 per cent of non-OECD countriesdespite recur-
rent reform attempts (calculated from Dahlberg et al. 2013). The World Bank (2008), for instance, lent US$422m
per year for civil service and administrative reform in 200006yet without measurable impact. Patronage systems
featured among the prime reform obstacles.
DOI: 10.1111/padm.12334
Public Administration. 2017;95:571588. © 2017 John Wiley & Sons Ltd 571
How can patronage systems be reformed? One prominent response has been the adoption of merit laws. Such
laws typically require selection for the appointment to the Civil Service to be on merit on the basis of fair and open
competition(UK Civil Service Commission 2012, p. 2). Fair and open competition thereby requires advertised
vacancies and the selection of the (professionally) best applicants in competitive written and/or oral examinations
(in short: competitive examinations).
As detailed below, practitioners frequently rely on the adoption of such merit
laws to advance merit in practice. Scholars in turn have argued that, while merit laws are insufficient to bring about
merit in practice, they are a necessary first step.
This article goes one step further in the critique of merit laws: it argues that such laws are neither sufficient nor
necessary for merit in practice. Instead, merit laws leave the incumbents possibility frontier for patronage and meri-
tocracy in practice unaffected. The article provides large- and small-n evidence for this argument. First, data from
an original dataset of coded civil service legislation in 117 countries from 1975 to 2015the largest cross-country
coding of civil service legislation in the literature to datesuggests that countries can attain meritocratic recruitment
with and without a merit requirement in law or constitution. Subsequently, a comparison of Paraguay and the
Dominican Republic, which draws on 130 semi-structured interviews, provides micro-evidence for the theorized
mechanism which enables merit in practice without merit legislation. Conventional wisdom about the sequencing of
governance reforms in developing countries may thus be misleading: legal reform need not come first.
Merit reforms in patronage states areas donor-supported governance reforms in the developing world at large
frequently characterized by a bias toward formal institutions(Andrews 2013, p. 8; see also Pritchett et al. 2010,
among many). Practitioners often advocate introducing merit legislation, at times going as far as considering legal
reform an objective in itself(Verheijen 2000, p. 26).
Relative to practitioners, scholars have been somewhat less sanguine about merit laws. In their accounts, merit
laws are necessary but insufficient for merit in practice. To illustrate, scholars have posited that: the enactment of
civil service legislation does not automatically lead to the institutionalization of merit;the fate of career civil service
reform initiatives is generally determined after they have been legislated; and the adoption of civil service laws
does not necessarily lead to the de-politicization of civil services(Grindle 2010, p. 2; Lapuente and Nistotskaya
2009, p. 443; Meyer-Sahling 2006, p. 693).
This insufficiency of merit legislation is variously explained by four mechanisms. Capacity shortfalls in patronage
states may complicate implementation (see, among many, Polidano 2001). Merit laws may leave incumbents with
formal political discretion: patronage permitted by law through loopholes such as temporary contracts or parallel
institutions (Meyer-Sahling 2006, p. 693). Incumbents may retain patronage by resorting to what this article terms
façade meritocracy: the manipulation of seemingly meritocratic examinations to favour preferred candidates. And
lastly, incumbents may ignore merit laws: the absence of rule-of-law contexts is characteristic of patronage states
(Charron et al. 2012; Fukuyama 2014, p. 51). Public servantsincluding those in charge of legal complianceare
appointed based on political and personal criteria. Correspondingly, their decision-making typically prioritizes
political-personal over professional-legal criteria. Legal violations of merit laws thus tend to go unpunished, turning
them into dead letter[s](Goetz 2001, p. 1036).
The latter three mechanisms are often at play due to window dressingattempts by incumbents: the appear-
ance of reform progress without reform in practice (Andrews 2013). Merit legislation can thus lead to formal institu-
tions which are merely ceremonial(Meyer and Rowan 1977, p. 340), enabling developing countries to assume the
Professional states vary in the criteria prioritized in competitive examinations, be these academic credentials, professional skills or
work experience, for instance (Evans 1998, p. 71). The argument in this article is unaffected by this variation.

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