GOVERNING BY GOALS
Governance as a legal style
Pauline Westerman1
Abstract: Although governance is sometimes used as a mere buzzword, it is also a
program for reform. In this program, the focus is on the efficient and effective
achievement of goals on which fundamental consensus is assumed to exist. Where
this program has been executed it has brought about some important changes in the
legal landscape. These changes concern the nature of rules as well as of principles. In
the formulation of rules, results and objectives are emphasized rather than the acts or
processes leading to those results. This new kind of rules enables the smooth
production of policies, but cannot serve as compromises between conflicting interests.
New principles are introduced as well: the principles of proportionality, subsidiarity,
transparency and accountability. Also these principles are dependent on the
assumption of consensus on aims. They are hard to reconcile with the traditional
principles of legal certainty and equality.
Keywords: Governance, (frame-work)directives, subsidiarity, proportionality,
transparency, accountability, soft law, consensus, civil society, output-legitimacy.
1
Pauline C. Westerman is Professor in Philosophy of Law at the
University of Groningen, the Vrije Universiteit of Amsterdam as well as
the Academy of Legislation, The Hague, The Netherlands.
1. Governance, an ambiguous concept
The concept of governance has become so dominant in contemporary political
discourse that one tends to forget that its popularity is a fairly recent
phenomenon. Developed in the late eighties as a requirement to be met by
Third World Countries in order to get loans or subsidies from the developed
world2, its meaning has been expanded over the last two decades, ranging
from
`corporate
governance'
to
`global
governance',
covering
the
management of institutions as diverse as private companies, trade-unions,
secret services, universities and the European Union.
Not only its scope has been broadened. The complexity of the term is
further increased by an inherent ambiguity. Governance is a descriptive and a
normative notion at the same time. `Governance' and `good governance' are
not clearly separated. Actual regulatory practices, `best practices' as well as
the principles that should be met in order to count as such a `best practice',
all seem to be captured by the same notion of governance. Often the term is
used as a manifesto or as an agenda for reform. This is for instance the case
in the White Paper on European governance, issued by the EC, 2001.3
It is probably due to this normative and programmatic nature of the
term, that whenever political scientists use the term in a descriptive fashion,
as an analytical tool or even as an intellectual perspective4, they usually
2
See C Hewitt de Alcántara, “Uses and abuses of the concept of
governance” (1998), International Social Science Journal, Vol. 50, Iss.
155, no 1, 105-113.
3“
European governance: a white paper”, Brussels, 2001, Commission of
the European Communities.
4
See G Stoker, “Governance as theory, five propositions” (1998),
International Social Science Journal, Vol. 50, Iss. 155, no 1, 17-28.
define governance in negative terms. Governance is regarded as `governing
without government'5, or as >policy-making without politics'6, it is alleged to
be marked by the lack of a clear separation between the public and private
sphere, or seen as an attempt to reduce governmental interference, and,
above all, as an attempt to get away from formalities.7 The actual use of the
term as a motto or program for change has led to the situation that there is
more clarity about what it is not, or about what people say it should not be,
than about what it is.
2. Governance and legal theory
We might want to shrug our shoulders at these problems. Why should legal
scholars be bothered by the failures of political scientists? The prevailing
attitude of most legal scholars or students of legal theory is to regard policymaking -with or without politics- and governing -with or without governmentas activities that should be kept separate from law. Lawyers deal with the
product, not with the process that precedes it. They usually deal with rules
and regulations, but not with the art of rule-making.8 The prevailing -ideal5
JN Rosenau and Ernst-Otto Czempiel, “Governance without
Government: Order and Change in World Politics” (1992), Cambridge
Studies in International Relations, No 20; R Rhodes, “The New
Governance, Governing without Government” (1996), Political Studies,
44, 465-67.
6
A Kazancigil, “Governance and science: market-like modes of
managing society and producing knowledge” (1998), International
Social Science Journal, Vol. 50, Iss. 155, no 1, 69-79.
7
ibid
8
Cf. LJ Wintgens, “Legisprudence as a New Theory of Legislation”
(2006), Ratio Juris, Vol. 19, No 1, 1-25, who asserts: `The way law is
created through the process of legislation does not appear on the
screen of the legal theorist'. (p.1)
model of the jurist is and remains the judge, despite the fact that many
lawyers do not act as judges but are employed as experts in rule-making.9
Another reason for the fact that lawyers are usually not too interested
in the new creed of governance is that advocates of governance stress the
importance of informal arrangements. For the practicing lawyer, who is
continuously engaged in demarcating valid from invalid law, formal tests of
validity are, however, of the utmost importance. Academic legal researchers
could have freed themselves from this practical necessity, but most of them
adopt the internal point of view of the practicing lawyer. The claim that
governance is about managing affairs in an informal way, without formal
rules, and by making use of informal networks, does not, therefore, increase
their willingness to study such a phenomenon, and if they do so, they usually
confine themselves to the question to what extent all these forms of `soft'
law can be regarded as valid law.10
I think that this position is hard to sustain. If we want to understand
the products -the rules and principles that form the material of both the
practicing lawyer and the legal scholar- and if we want to understand the
various ways -formal and informal- in which they can affect our lives and
decisions, we should also understand the process that has helped to form
those products. And if policy-makers, legislators and rule-makers of all sorts
claim that that process should be changed, or is about to be changed, or has
9
See also Unger's criticism of this one-sided emphasis on adjudication:
RM Unger, Legal Analysis as Institutional Imagination, The Modern Law
Review (1996) Vol. 59, No 1, 00.1-23.
10
About this particular form of `blindness' see also Gerhard Anders,
Lawyers and anthropologists: a legal pluralist approach in global
governance', in: IF Dekker and W Werner (eds.), Governance and
International Legal Theory, (Leiden/Boston, Martinus Nijhoff Publishers,
2004), 37-58.
already been changed, we should wonder whether those changes affect the
products as well, and if so, how. In order to do so, we should be wise at least
to postpone the question of demarcation between valid and invalid law. It
might prematurely block our understanding of what governance is about.
This article is meant as an attempt to describe governance in a way
that might alert lawyers to the fact that the landscape they are working in is
about to change. I shall argue that the new creed of governance, although at
times a mere buzzword, has led to the creation of different legal
arrangements, new regimes of control and enforcement and to the
formulation of different kinds of principles and rules.
3. Governance as style
But in order to show all this, we should not regard governance as an entity. I
don't think that we can sensibly speak of governance as a normative order, or
as a political system. Corporate firms, Internet, prisons, and hospitals
nowadays all boost of practicing `governance'. This rapid expansion of the
term seems to imply that rather than referring to a political or normative
system, `governance' denotes a general manner of managing affairs, which is
thought to be desirable by many people and which is transported to ever new
domains.
If we see governance in this light, it is more appropriate to regard
governance as a style. A style refers to a general manner of doing something
and can be practiced in various domains. If someone is said to adopt a certain
style, he does not merely copy a successful example. The painter does not
become an impressionist by imitating Monnet's waterlillies, but by painting
other things in an impressionist way, by using colours and light in the manner
of Monnet. In this sense, the adoption of a style is a form of analogical
reasoning, accompanied by the demand that analogous matters should be
treated in analogous ways.
To differentiate between various styles of regulation is not new. But
usually these comparisons only regard the ways rules are dealt with, whether
they
are
administered
strictly
or
more
pragmatically,
or
whether
administrators proceed in a more formal or informal manner.11 This seems to
me a truncated notion of style. A different style of painting does not merely
manifest itself as a different way of dealing with the same old products, but
changes the products as well. A new style generates a new kind of products,
and it is in the products that such a style is noticeable and that its
characteristic features can be traced.
However, not only the products reveal the characteristic features of
styles. We may also turn to the manifestos and programmatic writings that
often accompany the introduction of new styles. In these writings we may
hope to get a glimpse of the underlying assumptions of the new style, the
problems that are identified as important and the kind of solutions that are
sought. It is in these programmatic writings that we might furthermore look
for explicit formulations of principles that are advocated as the general
guidelines to be followed.
4. The prescription of goals
11
RA Kagan, “Regulatory Justice: Implementing a Wage-Price Freeze”
(New York, Russell Sage Foundation, 1978); RA Kagan, “Adversarial
Legalism and American Government” (1991), Journal of Policy Analysis
and Management, Vol.10, 269-406; Jeremy Richardson (ed.), Policy
Styles in Western Europe (London, Allen and Unwin, 1982).
If I am right in regarding governance as a style, we should first turn to the
question whether there are some novel features discernible in the products
themselves, the rules and regulations that are drafted. And indeed, I do think
that such changes are noticeable. In fact, I pointed to the appearance of new
kinds of rules before I realized that these changes could be linked to
`governance'.12
One such change is the formulation of what can be called at the
European level `framework-directives' or, at the national level, `goalprescriptions'. Directives and goal-prescriptions prescribe in a direct manner
the aims and goals that should be achieved. At the European level aims such
as the protection of flora and fauna, or the reduction of pollution are
prescribed in fairly abstract terms and it is left to the national legislatures of
the member-states to work out the rules by means of which these aims can
be realized.
At the level of the national legislator the same strategy is adopted:
here too some abstract aims are prescribed, for instance the provision of
`reliable care' or `good labour conditions', while it is left to the field of normaddressees to draft the rules by means of which the desired results should be
reached. The emphasis is on what should be achieved, rather than on how a
certain purpose should be brought about. The conventional rule as a device
that indicates a concrete manner to achieve ends is replaced by direct
prescriptions of those ends. Rule-making is supplanted by end-setting.
This strategy can be regarded as an invitation to the fields of norm-
12
See my `The emergence of a new type of norms', in Legislation in Context, ed. L
Wintgens (Aldershot, Ashgate, forthcoming).
addressees to draft the rules necessary to bring about the desired ends. We
should not think here of individual norm-addressees but of a network of
numerous institutions, boards, councils and committees which are all involved
in the matter to be regulated. Typically, the new Dutch act on health care is
not directed to `hospitals' -as the old act was- but to all institutions that are
concerned with health care.
At this lower level, the abstract aim of `reliable care' is specified in
more
concrete
goals,
for
instance,
`short
waiting-lists',
`complaint
procedures', `provision of information' and the like. These more concrete
goals are not sufficient. It is one thing to specify `reliable care' into `short
waiting-lists', but the question immediately arises what should be counted as
sufficiently `short'. That means that other, more concrete standards should
be set that indicate the extent to which the concrete goals should be realized.
These standards are usually determined by bench-marking: empirical
investigations of how other and comparable institutions perform. Finally,
these specifications of goals lead to the determination of performanceindicators that enable the various supervisory bodies to monitor the degree in
which the desired aims and policies are realised.
It is important to see that also at these lower echelons a form of goalregulation is practiced. The only difference is that at every more specific and
concrete level, there is less scope for alternative routes by means of which
the results can be obtained. Whereas abstract goals allow for a considerable
array of alternative options that can be chosen in the pursuit of the goal, the
more concrete goals and specific targets that are issued at lower levels
reduce that room for manoeuvre. But that does not change the nature of the
norm that is prescribed. Like the abstract goal, the more concrete result that
is prescribed here pertains to output and not to the processes leading to that
output. These more concrete output-norms I shall call result-prescribing
norms (RP-norms).13
RP-norms are usually phrased as positive injunctions. This is only
natural: it would be odd to issue a rule that a certain type of filters should not
be installed or that a certain document should not be produced. Therefore,
RP-norms do not usually specify the acts that are deemed undesirable, but
specify the situations that are deemed desirable. That means that an RPnorm can only be complied with by positively doing or producing something.
The tendency to replace negative act-norms by positive RP-norms can
be witnessed at all levels. We even see that the familiar sign `no smoking' is
gradually replaced by signs that indicate a `smoke-free zone'14 Antidiscrimination rules are gradually supplanted by requirements that a
`discrimination-free shop-floor' should be established. Once such a positive
formulation has gained terrain, it is usually the source of an enormous
proliferation of more specific RP-norms. The simple prescription to provide for
a `discrimination-free shop floor' is accompanied by an overwhelming amount
of standards and performance-indicators, produced by lower levels of rulemakers.
5. The reasons for adopting a new style
13
For a more elaborate analysis of RP-norms and in which sense they
differ from act-norms, see my contribution to Wintgens (ed.), supra n
12
14
At least, in the Netherlands.
If painters turn towards a new style, their attempts are sometimes explained
and justified by manifestos and programs, and although the actual products
remain the most important source of information for an understanding of the
new style, the manifestos may shed light on the reasons why it is adopted
and advocated.
In the case of governance, these manifestos are abundant and it is
here that the double-edged character of the concept is revealed. Governance
is not only noticeable in the way rules are formulated but is at the same time
a reasoned account of the normative assumptions underlying this new
strategy. The notion of governance pertains to both the products and the
normative theory underlying those products.15 So in order to understand
governance in this double aspect, it is necessary to alternate between two
levels of description: a description of the actual practice and a description of
normative assumptions and reasons that are adduced in favour of this new
practice.
The reasons adduced for the new practice of end-setting can be found
in the problems that are identified as the most important ones: inefficiency,
red tape, bureaucratic inertia, and inflexibility are among the most common.
Much attention is spent to the question how effectiveness as well as efficiency
can be maximized.
This anti-bureaucratic flavour was already there in the original
expression of governance as a desideratum to be met by Third World
countries. Also here, there was a tendency to avoid formal procedures and to
stress the importance of `civil society' as a more efficient working mechanism
15
See also Stoker (supra n 4) who indeed describes governance as both
the phenomenon and the theoretical perspective on that phenomenon
and consistently speaks of governance as a paradigm.
than the notoriously slow and corrupt bureaucracies of many developing
countries, notwithstanding the obvious fact that in many such conflict-ridden
societies the strength of civil society as a stabilizing factor can also be
questioned.16
This criticism of governmental inertia was intensified by one of the
theoretical sources of the governance-creed: the New Public Management
movement, which gained popularity in the eighties. Here again, the main
scapegoat was bureaucracy, which was considered as too slow and
bothersome to adapt flexibly to a rapidly changing world.17
The perception of formal institutions as inflexible, inefficient, ineffective
and -therefore- too expensive led in NPM-circles to the requirements that
public institutions should be organised in just the same way as the private
company. They should be competitive, mission-driven, result-oriented,
customer-driven, enterprising, decentralised and market-oriented.18 And
although during the last decade some writers became increasingly critical of
an unreflective identification of private and public institutions, much of the
literature on governance is still pervaded by the `entrepreneurial spirit' that
16
In the words of Hewitt de Alcántara: “civil society, in any post-conflict
setting is likely to contain a fair number of torturers, armsdealers and
drugrunners (..)”, supra n 2, 110
17
In his excellent and critical portrayal of NPM, Pollitt writes: “Most
books and articles on the NPM identify the `other' (if they define it at
all) as `bureaucracy'. Bureaucracy is pictured as ruling the pre-NPM
earth like a dinosaur. Like a dinosaur, it was slow-moving, too
insensitive, insufficiently adaptable, and seriously underpowered as far
as brains were concerned”. See C Pollitt, The Essential Public Manager
(Philadelphia, Open University Press, 2003) 32.
18
To mention just a few of the requirements that were worked out by
David Osborne and Ted Gaebler in their hugely popular and rhetorically
gifted: Reinventing Government: How the Entrepreneurial Spirit is
Transforming the Public Sector (Amsterdam, Addison-Wesley, 1992).
was advocated by the NPM. Bureaucracy and the reliance on formal rules are
still considered as major obstacles to a smooth and effective functioning of
public government.
This strand is clearly visible in the various slogans with which
governance is advocated. The Dutch Minister of Justice Donner ended a
speech19 to an assembly of about 500 civil servants, working at the various
legislative branches of ministries by exclaiming: `No rules, but results!'. Prime
Minister Blair is reported to have expressed himself somewhat more eloquent:
"(...) if a [public] service can be accountable for what it achieves, we need
worry far less about how it achieves it".20 Both politicians echo the old dictum
of General George S. Patton who is reported to have said: "Never tell people
how to do things. Tell them what you want them to achieve and they will
surprise you with their ingenuity".21
Rules and results are presented in all these assertions as opposed to
one another. The governance-agenda identifies the major problem as the
proliferation of rules, and regards the solution in terms of goals and results.
6. The deficiencies of rules
We should not too readily dismiss these slogans as cheap rhetoric. Rules can
indeed be problematic tools and although these problems are usually not fully
worked out in the literature on governance, the disadvantages of rules can
19
Scheveningen, March 17, 2005.
20
Quoted in Pollitt, supra n 17, 27
21
Quoted in Osborne and Gaebler, supra n 18
easily be perceived from a legal theoretical perspective on the working of
rules. Four difficulties can be discerned:
1. The choice of rules. Several -different- rules may present
themselves as possible candidates for bringing about a certain desired goal. If
safe traffic is the aim, one may either build roundabouts, or install traffic
lights or one may reduce maximum speed. Which means are chosen is
dependent on empirical knowledge of the effects of such general prohibitions
and that knowledge may turn out to be unfounded.22 Especially in areas which
are marked by technical complexity and rapid developments, -think for
instance of environmental regulations- such knowledge is hard to get and
quickly outdated.
2. The enforcement of rules. In order to achieve the underlying goal,
one has to make sure that the selected rule is adopted and followed. That
may be a difficult task, especially where complex social fields are involved
that are marked by strong internal cohesion, brought about by a shared set of
beliefs, norms, rules and traditions, which may oppose intervention. Such
difficult groups are e.g. professional associations, but also the member states
of the European Union.
3. The reception of rules. The rules that are imposed from above are
understood and interpreted by the social fields in the light of their own
normative structures. This may distort the message of the legislator.23 That
means that even if one succeeds in choosing and enforcing the right rules, it
22
See F Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based
Decision-Making in Law and in Life (Oxford, Clarendon Press, 1991).
23
This is one of the classical problems of the sociology of law. See SF Moore, “The
semi-autonomous social field as an appropriate subject of study” (1973), Law and
Society Review 7, 719-746.
is still unclear whether the rules contribute to the intended goals. The
normative framework of the norm-addressee(s) may generate effects that
are unintended or even the reverse of what was intended. At the European
level unintended effects can be generated by the particular -legal- cultures of
the various member-states.
4. The effectiveness of rules. Even if the intended effects are reached,
it remains largely a matter of speculation whether they are brought about by
general adoption of the rules or by some other -unknown- cause. The
introduction of roundabouts in the Netherlands is accompanied by a
significant reduction of traffic accidents. But a causal link between the two
phenomena cannot be established.
Many of these disadvantages of rules seem to disappear if the central
authority no longer issues rules as the means to achieve a certain goal, but
instead prescribes that goal in a direct manner. By presenting the normaddressees directly with goals, one leaves it to them to work out the various
ways by means of which these goals can be realised. These norm-addressees,
it is assumed, are in a better position to select the most appropriate means
because they are more acquainted, even daily involved- with the issues at
hand. Moreover, since they themselves participate in the social field that is
about to be regulated, they have better knowledge of the specific culture of
such a field, its beliefs, values and habits. Issuing goal-prescriptions is
therefore recommended as a panacea for the difficulties pertaining to rules
mentioned above.
7. Basic assumptions of governance
The criticism of rules and the concomitant preference for a direct prescription
of goals reveal some underlying assumptions. For rules have only these
shortcomings if one views them as tools in order to achieve certain welldefined goals.
If one sees rules in a different light, for instance as mechanisms which
enable people to live together despite the fact that they have different, even
conflicting interests and goals, rules can be very useful. By prescribing
concrete behaviour, rules facilitate coordination and mutual adjustment of
acts despite the fact that intentions, interests and goals do not run parallel.
The deficiencies of rules are therefore only felt if one starts from the
assumption that there is consensus on the aims and goals to be pursued, and
that it is the job of government to achieve these aims. Then, it is more
expedient to replace them by goals and to invite the members of society to
work out, in a joint effort, the ways in which these goals can be specified and
achieved.
And indeed, in most writings on governance such fundamental
consensus on substantive values and aims is either presupposed or
emphasized explicitly. Governance is said to be `backed by shared goals'24, it
involves a process of `building consensus'25, and starts by issuing `missionstatements' in which the fundamental objectives and aims are announced.
Those who advocate governance are not always so naive as to assume that
consensus exists right from the start, but believe that it can and should arise.
Interests and values are not fixed; they are not conceived of as the objects of
24
JN Rosenau, Governance, Order and Change in World Politics, in: JN
Rosenau and E Czempiel, supra n 5
25
Hewitt de Alcántara, supra n 2
negotiation between parties who may differ in power and quantity. Rather, it
is assumed that if the right information is provided and if the right context is
created for ongoing discussion, consensus on goals and values may gradually
emerge.26
The tenet that people are and should be able to reach consensus on
the common good gives rise to four other frequently recurring assumptions:
* The first is the emphasis on learning. Citizens, organisations and
companies are all admonished to be engaged in a continuous learningprocess. They are supposed to overcome their partial interests, partial goals
and imperfect knowledge by engaging in a collective process of -guidedlearning. Obviously, the image of learning presupposes that there is a shared
goal to be learned, that there is a form of perfect knowledge to be reached
and that there is something that can be called the general interest.
Significantly, the role of the teacher here -as well as the question who is to
perform that role- is generally hidden from view or is solved by referring to a
presumed capacity of self-learning.27
* A second assumption, which is linked to the central idea of shared
goals is the idea that citizens are responsible or should take responsibility. It
took me some time to realize the importance of this tenet. Responsibility is
here regarded as the duty on the part of (groups of) citizens to reach
consensus by themselves, in a joint process of -ongoing- deliberation that
26
Majone, “Analyzing the Public Sector: Shortcomings of Policy Science
and Political Analysis”, in: F Kaufmann (ed.), The Public Sector:
Challenge for Coordination and Learning (Berlin/New York, Walter de
Gruyter, 1991) 29-45.
27
The literature on `learning organisations' is abundant. A fairly good
overview of what it means for the public sector, and consisting of both
supportive and critical contributions is: Kaufmann, supra n 26.
takes place in the various segments of civil society. Responsibility is therefore
usually referred to in negative terms: as not relying on the government or
other
formal
institutions
to
reach
political
agreement.
Dismissed
as
irresponsible are both the calculating citizen who makes use of loop-holes in
(formal) law in order to serve his self-interest as well as the citizen who relies
mainly on his representatives in parliament or trade-unions to negotiate on
his behalf. The mature citizen, on the other hand, `takes his responsibility' by
renouncing his short-sighted views and by engaging in mutual cooperation
with others.28
* The notion of the responsible citizen is important for the main pillar
of governance: civil society. Governance, in its attempt to get away from
official government, formal rules, red tape and bureaucracy (see section 5)
relies on an order that is not `externally imposed' but which is `the result of
the interaction of a multiplicity of governing and each other influencing
actors'.29 The emphasis on the supposed vitality of civil society is often
accompanied by a critique of political institutions that rely on formal
procedures of representation and decision-making by vote.30 It is stressed
that non-majoritarian institutions can be democratic in their own right.31 As
we have seen, the invitation to the fields of norm-addressees to formulate
28
See for instance `Verkenning burgerschap en andere overheid',
memorandum Second Chamber, the Netherlands.
29
See G Stoker, supra n 5
30
See e.g. RD Putnam, Making Democracy Work: Civic Traditions in
Modern Italy, (Princeton, Princeton U.P., 1993), who stresses the
importance of `human capital'.
31
See e.g. G Majone, Independence versus Accountability? NonMajoritarian Institutions and Democratic Government in Europe, EUI
Working Paper SPS No 94/3, (San Domenico, Badia Fiesolana, 1994)
their own rules can indeed be understood as such an appeal to civil society.
We should, however, keep in mind, that large parts of civil society,
the
networks of non-governmental, private, or semi-public institutions, should not
be regarded as a living spontaneous Gemeinschaft, existing prior to
governmental interference, but originated as a result of the governmental
practice to issue frame-work directives or goal-prescriptions.
* The fact that shared goals are deemed more important than the
representation of fixed and partial interests also implies a major shift in the
way political institutions are judged and evaluated. They no longer owe their
legitimacy to how they are composed and whether all interests are
represented, but whether they are effectively promoting the common good. A
well-known and useful distinction here is that between `input'-oriented
legitimizing beliefs and `output'-oriented legitimizing beliefs. Within the
paradigm of governance, democracy is not regarded as government by the
people, but as government for the people.32 Political institutions are no longer
regarded as institutions that should mediate between conflicting interests but
as institutions that should produce desirable outcomes. They are producers of
a special kind: they produce policies that further the general interest.
8. Sectoral division
In order to ensure a smooth and effective production of policies it is not
enough to reiterate, programmatically and theoretically, the view that there is
a consensus on shared goals. Such a consensus should also be organised.
32
For this useful distinction, see F Scharpf, Governing in Europe,
Effective and Democratic? (Oxford U.P., 1999).
One way to do this is to divide the landscape that is to be regulated into
sectoral units, each of which is devoted to a specific goal or aim. At the
national level, such a division has already been effected to a large extent. As I
indicated above, the various boards, councils and committees that are
erected around one single field to be regulated all seek to implement one -or
at best a selected few- central values or aims around which they are
organised.
This sectoral organisation does not imply that there are no real debates
going on there. Health care organisations may still struggle between
competing interests of professionals versus patients, or between professional
and financial considerations. But they are not fighting over the priority of
hospitals versus the standing army or of a clean environment versus the
national symphonic orchestra. Many of these committees and commissions
are composed of experts -either technical or juridical experts- who confine
their investigations and discussions to the most efficient and effective means
to bring about a limited amount of desired ends.
At the European level, there are an abundant, if not to say
overwhelming number of committees that are organised around one single
purpose or issue.33 But many of them are cross-cutted by territorial divisions
as well, in view of the requirement of adequate representation of memberstates. Significantly, there is a tendency nowadays to bypass these remnants
of territorial representation in favour of more functional or sectoral forms of
33
For an extensive and clear analysis as well as theoretical
underpinning of the ways in which one such issue, i.c. occupational
health, is disputed and regulated at the European level, see S
Smismans, Law, Legitimacy, and European Governance: Functional
Participation and Social Regulation,
(Oxford U.P., 2004).
consultation and participation. Political interference of member-states is
increasingly seen as a stumbling-block to the smooth and effective production
of policies. Instead, independent, `specialised and single-purpose agencies'
are called for.34 The tasks of these agencies sound harmless enough: they
should be entrusted with the collection and dissemination of `information',
they should help to create a network of experts and investigate the
possibilities of standardization. However, at a later stage they should be
entrusted with controlling powers as well.35
The recurrent use of terms like `data' and `information' again testifies
to the fact that discourse in these non-majoritarian and `independent'
agencies is thoroughly de-politicised. The desirability of the goals to be
pursued is presupposed right from the start. All that is needed is to `inform'
others about the desirability and importance of these goals and to `instruct'
them about how they can be realised.
9. The principles of subsidiarity and proportionality.
The prescription of goals is not a strategy that is only adopted at the higher or
more central echelons. In turn, the -lower level- institutions that are
sectorally grouped around a single aim or goal, mirror this strategy and
equally tend to prescribe goals, be it of a more concrete and specified nature.
34
Majone, supra n 31, 11. The White Paper on Governance by the
European Commission recommends the establishment of these
agencies as follows: `The advantage of agencies is often their ability to
draw on highly technical, sectoral know-how, the increased visibility for
the sectors concerned (...) and the cost-savings that they offer for
business" ( 24).
35
Majone, supra n 31, 14.
These mini-goals consist of controllable or measurable results to be obtained
rather than the means, processes and acts that should generate these
results.
This reproduction of strategies is characteristic of styles. As I indicated
above, a style is a form of analogous reasoning. Once it is adopted in a
certain area, it tends to be reproduced in other areas as well. This fact is
responsible for the ability of styles to connect areas, which would otherwise
remain separate. The style of governance can be discerned in the way the
municipal police is run as well as in the way the judiciary is organised or the
local hospital, and it is noticeable in the way the European Commission treats
its lower organs as well as in how the governments of member-states deal
with subsections of society. Styles bring about coherence in a certain
practice.36
This kind of coherence can be understood, I believe, as the result of
the application of some general ordering guide-lines or principles. In the case
of governance, the principles that are most frequently invoked are the
principles
of
subsidiarity,
of
proportionality,
of
transparency
and
of
accountability.
The principle of subsidiarity requires that “powers or tasks should rest
with the lower-level sub-units of that order unless allocating them to a higherlevel central unit would ensure higher comparable efficiency or effectiveness
36
Foucault described how the same mechanisms of registration,
classification, control and subjugation that are characteristic of the
disciplinary style, can be noticed in the organisation of armies, schools,
hospitals, as well as in holiday camps. See The Foucault effect: studies
in governmentality, ed. G Burchell, C Gordon and P Miller (London,
Harvester, Wheatsheaf 1991).
in
achieving
them".37
The
principle
of
proportionality
expresses
the
requirement that one should not take any action that exceeds that which is
necessary to achieve the desired aim.38 Since rules are generally considered a
relatively
‘heavy' instruments to achieve the desired goals, the principle
requires that rule-makers first ask themselves whether the aim justifies such
heavy means, or whether lighter, less expensive and more flexible
instruments are available and it requires that if the latter are available, they
should be awarded priority.39
These principles go together and in fact express different aspects of the
same ambition: to improve an effective and efficient achievement of goals.
The requirement to use `lighter means', for instance by issuing goalprescriptions and directives or by providing `information' on the desirability of
a certain goal (the principle of proportionality) is really nothing more than a
requirement, directed at the central unit to confine itself to end-setting and to
delegate rule-making to lower echelons (which is the principle of subsidiarity).
Both in the national and in the European context we see that the nature of
the chosen regulative instruments is informed by the degree in which one
seeks
to
decentralise
rule-making.
Locus
and
focus
are
connected.
37
This definition is given by A Føllesdal, “Survey Article: Subsidiarity”
(1998) The Journal of Political Philosophy, Vol. 6, nr. 2, 190-218. This
article gives excellent insight in the ambiguities and problems of the
principle.
38
See http://europa.eu/scadplus/glossary/proportionality_en.htm
39
See the Conclusions of the European Council of Edinburgh, 1992,
which were reaffirmed in the Treaty of Amsterdam. For an extensive
overview of the various legal instruments, see L Senden, Soft law in
European Community Law: Its Relationship to Legislation (Nijmegen,
Wolf Legal Publishers, 2003).
intrinsically
We should add a cautionary remark here. The terminology used in the
principle of subsidiarity suggests that `powers and tasks' are conceived as the
power to make rules. But within a governance-style, rule-making is not such
an decisive activity. Rule-making is confined to devising the best means for
an end or goal that is issued by the more central unit. We may question the
assumption that end-setting is indeed a `lighter means' than rule-making. We
should be careful, therefore, not to read the principle of subsidiarity as un
unequivocal plea for allocation of powers to lower echelons. Although the
latter are entitled to make rules, they are not necessarily entrusted with the
power to make important decisions.40 The same applies to the principle of
proportionality. Its preference for `lighter means' is a preference for goalsetting, but whether the prescription of goals to be achieved is indeed `light'
is questionable.
It should be noted that both principles are dependent on the notion of
shared goals and objectives. Whether regulatory measures should be `light'
or `heavy', issued by `lower' or by `higher' organs are matters that can only
be decided according to the criteria of efficiency and effectiveness. But these
criteria necessarily pertain to means, not to ends. The principles of
proportionality and subsidiarity, therefore, do not guide decision-making on
ends.41 They don't have to: it is assumed that there is a fundamental
consensus on the ends to be pursued.
10. The principles of transparency and accountability
40
41
See Føllesdal, supra n 37, 197
See Føllesdal, supra n 37, 192
Efficiency and effectiveness are also the overriding concerns underlying the
principles of transparency and accountability. According to Fisher “(...)
accountability in the European context is often characterised as the principle
for
an
era
of
innovate
governance
unshackled
from
conventional
understandings of the constitutional state (...)”42 Also at the national level
accountability is seen as one of the most important requirements for all sorts
of organisations, from the local museum up to the Ministry of Finance.
Transparency, understood as the requirement to institutions to be open
to public scrutiny is a sine qua non for accountability. Institutions should be
transparent to all parties involved: the customer, the government, the
subsidizing agency or the public at large. Transparency requires the
production of regular self-reports, giving updates on results obtained and
indicating the level to which one has succeeded to reach the intended aims.
These reports form the basis of an elaborate system of review and
control in which supervisory boards play an important part. During the last
two decades numerous supervisory boards have been created. Some of these
boards merely ask for a reasoned report on how and why the institutionunder-control did what it did. But other such boards are more active than that
or are awarded more powers. In those cases they draw up lists of
requirements and standards to be met, ask for regular reports on whether or
how these standards were reached, judge on the merits of these accounts
and decide on the consequences of such judgements.43
42
E Fischer, “The European Union in the Age of Accountability” (2004)
Oxford Journal of Legal Studies, Vol. 24, no 3, 495-515.
43
See A Davies, Accountability: A Public Law Analysis of Government
by Contract ( Oxford U.P., 2001).
These supervisory bodies therefore combine several tasks: they
formulate norms and rules (sometimes in cooperation with other actors
involved in the field to be regulated), they administer these norms, they
control, they judge and they apply sanctions. Systems of certification,
accreditation, audit and quality systems gradually replace traditional forms of
legislation and control.
It is important to note that this entire system is made possible by the
formulation of RP-norms. Self-reports are only possible if the institution can
positively produce evidence of the fact that it did comply with the rules, or
more properly put: if it can show that it met the targets and obtained the
results that were required. Obviously, this would not have been possible if
one is confronted with rules of the classical `no vehicles in the park' type.
How can one prove that one did not commit fraud? It is not possible to
require someone to prove that he did not discriminate, but it is very well
possible to require the production of certain well-defined documents or
reports such as internal codes, policy plans, reports, mission-statement or
protocols.
We see here the interaction between norm-formulation and control at
work. The formulation of specific and positive RP-norms enables and
facilitates the establishment of a system of supervision on the basis of selfreports. But once such a system is there, it reinforces the tendency towards
the formulation of RP-norms. It is compelled to do so because the logic of
negative norms is unfit for self-reports.
Also institutionally, it is not easy to stop the proliferation of positive RPnorms and the parallel proliferation of supervisory bodies. I noted earlier that
goals tend to proliferate into a enormous amount of -positive- norms,
stipulating the exact results to be obtained. This proliferation is further
increased by the fact that these RP-norms are drafted by lower levels of rulemakers which are better acquainted with the field to be regulated and are
better equipped to come up with refined and sophisticated specifications of
the desired aims. Aspects are taken into `account' that remain out of sight in
a regime where controlling tasks are performed by a more central unit which
is placed at a greater distance from the practice that is to be controlled.
The increasing amount of norms and, consequently, of aspects that
should be taken into account by supervisors leads to a degree of complexity
that reinforces the inability of the central unit to carry out its traditional tasks
of control and leads to an ever-increasing need to delegate this task.
Paradoxically, the programmatic `no rules but results' leads to the opposite
effect of increasing overregulation at lower decentralized levels.
11. Different rules
Why do I think that legal theorists (and legal practitioners) should take
governance seriously? Not only because this style seems to penetrate right
into the legal profession. It is true that even the judiciary system is nowadays
subjected to the regime of bench-marking, best practices and targets44, but
although the consequences of that special example of style-application are
considerable, they do not provide the lawyer with more reason to be
44
At least in the Netherlands.
interested in governance than the average orthopaedist who is confronted
with the requirement to carry out a stipulated amount of knee-operations.
Apart from the direct implications of governance for the legal
profession, I think that governance deserves legal attention precisely because
the legal material itself is in the process of being changed. The jurist is not
only confronted with a different organisation of his work, but has to work with
different tools as well.
In the first place, the rules themselves are changed in the sense that it
is harder to perceive them as being serviceable to different ends. H.L.A. Hart
could still think that different, even conflicting purposes could be construed as
underlying a rule like `no vehicles in the park'. He alerted the reader to the
possibility that new aims could arise in time, giving weight to different and
new interpretations of that rule. This indeterminacy of aims, according to
Hart, makes it impossible to `freeze the meaning of a rule'.45
Such indeterminacy is minimized in the fine and specific RP-norms that
are produced by the lower echelons to which the job of rule-making is
delegated. These rules require for instance a special kind of filters to be
installed or they require municipal playgrounds to be paved by rubber tiles
measuring 60 x 60 cm. Although these rules do not exclude the possibility of
diverse aims, (the tiles may not only be soft but weatherproof at the same
time), it is less probable that these multiple aims might arise. Whereas a
general prohibition to discriminate can be extended to cover more categories
than were originally envisaged, the prescription to provide for extra facilities
for handicapped persons is ipso facto less flexible.
45
HLA Hart, The Concept of Law, (Second Edition, with a Postscript
edited by PA Bulloch and J Raz) (Oxford, Oxford U.P., 1997) 128-129.
Not only are those rules less flexible. As I have shown, rule-making is
delegated to various institutions, boards and committees which are organised
along sectoral lines. That means that these rules are merely serviceable to
the interest or goal that predominates in that area. If a rule-making
institution is clustered around for instance `the reintegration of immigrants on
the labour-market', this means that the rules that are drafted are specifically
meant to serve that aim. Their function as compromises is thereby
diminished. They may serve as compromises between different aspects of
that integration, but not between reintegration and other competing aims.
These rules do no longer embody different interests, do no longer point out
the relative importance or sequence in which various considerations should
play a role in adjudication and thereby loose their coordinative role.
Third, not only the coordinative role of rules is diminished, also their
facilitative role. If we see rules (not only those of private law but also of public
law) as important means to make it easy for people to pursue their own
affairs we might seriously wonder to what extent the many RP-norms that are
nowadays produced in such an abundant supply can effectively seen as such
facilitative vehicles.
It is true that the demarcation-line between a facilitative rule (allowing
people to pursue their own goals) and a manipulative rule (serving the
interest of the legislator only) is hard to draw. We might for instance be
inclined to think of health as a precondition for citizens to pursue an active
and valuable life. Rules that further public health can therefore be regarded
as facilitative rules. But what about rules that admonish the citizens to
intervene timely in order to be cured from depression? The recent objectives
of the EC46 to improve the mental health of European citizens by means of a
timely diagnosis and -chemical- treatment of depression cannot merely be
regarded as facilitative, but seem to border on a form of unprecedented
interference in one's private life.
The difficulty of drawing a line between facilitative and manipulative
rules can to a large extent be solved by institutional guarantees: procedures
that guarantee the inclusiveness of various conflicting interests, values and
perspectives to be brought in the debates that lead to the formulation of
these rules.47 Such procedural guarantees can help to prevent these
objectives to degenerate into a set of well-meaning but tyrannical goals to be
pursued.
We have seen, that within governance, there is no systematic place for
such a forum in which conflicting interests can be brought together. Formal
parliamentary procedures are dismissed as slow and cumbersome. It is true
that many programmatic writings on governance stress the importance of
deliberation and the active participation of the responsible citizens in civil
society. And indeed we can witness that at all levels of society, people are
engaged in the formulation, administration and enforcement of all sorts of
objectives, performance-indicators and standards. But these discussions,
taking place in the many institutions that are organised along sectoral lines,
are usually confined to a deliberation on the most effective means to achieve
the end around which these institutions are organised. Whether such an end
46
I thank Prof. Trudy Dehue for having alerted me to the emergence of these new
objectives.
47
See J Waldron, Law and Disagreement (Oxford, Clarendon Press,
1999).
as reduction of depression is desirable or how its relation should be to other
desirable ends is not discussed there.
Moreover, people do not deliberate there as individuals or as
representatives
of
individuals,
but
as
members
of
organisations.
Correspondingly, the citizens do not participate in these organisations qua
citizens, but as producers of the required good, or as consumers. Taken
together, these three features of governance-deliberation considerably reduce
the scope for an expression of conflicting interests. Participation within the
governance-paradigm is no sufficient guarantee against the tyranny of goals.
12. Different principles
But not only the rules are changing in nature. There is also a shift in the
underlying principles, which leads to increasing tensions between on the one
hand
governance-principles
like
those
of
proportionality,
subsidiarity,
transparency and accountability and on the other hand traditional principles
such as legal certainty and equality.
The principle of proportionality, that requires the legislator to ponder
about the availability of `lighter' means and to resort to rule-making only if
that is necessary to the aim intended, paves the way for all kinds of `soft
law':
brochures,
informative
communications,
general
guidelines
and
conclusions. But these `lighter' or `softer' instruments suffer from the
problem that their legal status is unclear. The conclusions of the European
Council, for example, always fail to indicate their legal status. Some of them
have a legal lay-out, but whether they are legally binding remains a matter of
speculation.48 Obviously, this lack of clarity seriously affects legal certainty.
Not only soft law instruments from `above' are lacking in legal clarity.
Also the codes, mission-statements and performance-indicators that are
drafted by the sectoral sub-units of society suffer from the problem that it is
unclear to what extent they are legally binding.49 And even if their legal status
can be ascertained, this does not always increase legal certainty for the
individual citizen. Developed as they are in functionally divided organisations,
many of these rules and regulations are, if not inconsistent, at best
inconclusive as guidelines for behaviour.50
As for the principle of subsidiarity, we have already seen that it is
merely complementary to the principle of proportionality: whereas the
principle of proportionality regards the intensity of the instruments to be
used, the principle of subsidiarity refers to the locus of rule-making. It prefers
regulation by lower echelons over higher echelons. However, it is not always
clear what these references to `lower' and `higher' amount to. As Føllesdal
remarks, they may refer to territorial units (European Union - member-states
48
See Senden, supra n 39, Ch 8.
49
In particular this is the problem with the various forms of
certification. See for an excellent overview RAJ van Gestel, Certificatie
als alternatief voor toezicht op de naleving van milieuwetten? Over
transplantatie van private kwaliteitssystemen naar een publieke
context', in: Certificatie: kansen en risico's, JA van Schagen et al.
(eds.) (Den Haag, SdU, 2002) 11-63.
50
The Dutch Ministry of Economic Affairs conducted several
investigations into the alleged inconsistency of rules. These committees
invariably conclude that only in a few cases rules are downright
inconsistent. However, judging from the examples that are mentioned,
the confusion of the citizen can without any doubt be attributed to the
fact that many of these rules are drafted without regard for other rules
that are equally applicable to the situation at hand but were drafted in
other quarters. See Strijdige regels in de praktijk, final report
Werkgroep Strijdige Regels, Ministry of Economic Affairs, March 2005.
- regions - municipalities), but the principle may equally refer to functional
units (ministry of health - supervisory boards -professional organisations etc.)
It is, therefore, highly unclear which sub-units should be recognized and
endowed with authority.51
Apart from this, it is not clear who are allowed to test and to review the
principles of subsidiarity and proportionality. As long as that remains unclear,
both principles may be used in the opposite sense; they may legitimize rather
than diminish central interference.
We have seen that the principles of transparency and accountability
effectively reverse the burden of proof. It is no longer to the supervisor or
controlling organisation to prove that the norm-addressee did not comply with
the rules, but it is to the norm-addressee to prove that it did positively
comply with these rules, i.e. that it did reach the targets that were imposed.
It should be noted that the term `norm-addressee' is not appropriate within a
governance-style. In a system that relies on self-control, there is increasing
pressure on the `norm-addressee' to formulate its own standards, and to
indicate beforehand the targets it tries to reach within a certain time-span.
After that, the same `norm-addressee' is supposed to report on whether it
succeeded to meet these self-imposed objectives. That means that -to put it
bluntly- one is obliged either to prove one's innocence or to supply selfincriminating evidence.
If the principle of accountability is applied to more central organs, as is
for instance the case in the solemn promises of the European Commission
51
See Føllesdal, supra n 37, 198.
that it will be more open, transparent and accountable in the future52, we are
once again confronted with the problem that we do not know who is to test
and to review the principle. It is true that the public can from now on look at
the Internet how the EC is doing and why it did what it did. That is a valuable
possibility but cannot compensate for the lack of adequate and democratic
representation.
Not only the principle of legal certainty, but also the principle of -legalequality is under pressure. Under a governance-regime, the emphasis on
flexibility has led to the demand that rules should be tailored to the specific
demands and exigencies of the situation in which the norm-addressee finds
itself. It is frequently emphasized that rules, by their uniform nature, are too
rigid to do justice to the complexities and rapid developments of modern life.
This implies to a large extent a form of Einzelfallgerechtigkeit. The nature and
degree of strictness largely depend on the specific features of the normaddressee. This is not, however, regarded as a defect to be remedied but as a
virtue of good governance.
But also the degree of strictness of supervision and control is allowed
to be different in different contexts. The reason for that it that organisations
may differ in the degree to which they succeed to realize the desired goals. In
the Dutch practice, for instance, organisations are often encouraged to supply
self-reports by presenting them with the choice between either such a system
of self-control or being subject to stricter -governmental- forms of control.
There is even a governmental memorandum in which it is maintained that the
52
European governance: a white paper, Brussels, 2001, Commission of
the European Communities.
principle of equality is not flouted by subjecting the `retarded' organisations
to a stricter regime of control than the more advanced ones.53
In short, we may conclude that in a regime in which people are
expected to achieve goals, the presumption of difference comes more
naturally to mind than the presumption of equality.
13. Conclusion
Governance is governing by goals. As a practice it is marked by the
organisation of society along the lines that are indicated by these goals.
These sectoral sub-units try to specify these goals into obtainable,
measurable and controllable results. Progress towards the goals and results is
constantly assessed and reviewed by a network of organisations that are all
involved in mutual control and supervision. As a normative theory governance
assumes that these goals are uncontested parts of the common good. `Good
governance' consists in the effective and efficient realisation of those goals.
Taken as such a practice and theory together, we have seen how
governance functions as a style. As such a style, it connects different areas
and pervades the relationships between governments and their citizens,
between the European Union and its member-states and between employer
and employee alike. Moreover, as such a style governance also provides for
coherence within a regulatory practice. It pervades the ways norms are
formulated, administered, controlled and sanctioned to such an extent that
formulation, supervision and control cannot be studied in isolation but can
53
See Verkenning burgerschap en andere overheid, memorandum
Second Chamber, 2004/05, no 29361, 9.
better be understood as interrelated. We have seen that the positive
formulation of RP-norms paves the way for a reversal of the burden of proof,
but that conversely, these forms of self-control in turn increase the tendency
to reformulate act-norms as RP-norms.
I argued that legal theorists should pay attention to the emergence of
this new regulatory style, because governance challenges fundamental
assumptions underlying the traditional ideal of the Rule of Law. One of these
fundamental assumptions is that citizens may disagree about the priority of
goals and values to be realized. Another such assumption is that governments
may think differently about the goals to be pursued than their citizens. Rules
and procedures serve to channel potential conflicts between citizens, to
safeguard adequate representation of conflicting interests, and to curb
governmental power. Obviously, these rules and procedures threaten to lose
much of their force and legitimacy in a goal-oriented and consensus-based
climate.
All this does not imply that the legal landscape will change completely.
More likely, governance will form an extra layer superadded to the existing
layers of legal arrangements without ever completely replacing them. But it is
worthwhile to see that if we cherish the old layers, they should be preserved
rather than too easily be taken for granted.
January 2007.