Pauline Westerman

Governing by Goals: Governance as a Legal Style

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

The rule of law as export product

ABSTRACT The Rule of Law is not only a set of requirements for national legislation but also functions as export-product, requiring the governments of fragile or failed states to establish an independent judiciary, separation of powers and the like. This article contains a philosophical analysis of how the Rule of Law is conceptualized in this context, and develops some hypotheses concerning the way in which relations between donor countries and receiving countries risk achieving the opposite of what is intended.

Rules on Rulemaking Introduction

When in 1800 Jean Portalis was commissioned to draft the French civil code, he said in his preliminary address that he had been “struck by the view, so widespread, that, in the drafting of a civil code, a few very precise texts on each subject might suffice and that the great art lies in simplifying everything while foreseeing all”. He added: “Simplifying everything is a process on which there must be agreement. Foreseeing all is a goal impossible to attain”. The view to which Portalis alludes is still widespread. The ambition to regulate matters by “foreseeing all” is more articulate than ever before. At the same time the pleas for simplicity and precision have matured into full–blown manuals, codes and compilations of conventions, to be consulted by any legislative drafter who wants to be taken seriously. The last decades have witnessed the emergence of an abundant amount and variety of manuals and guidelines that pertain to the art of lawmaking and which give instructions to legislative drafters on how they should draft laws that are simple, comprehensible, clear, and precise. These rules for rulemaking are the subject of this issue. They are meant to enhance the quality of legislation and thereby to turn regulation into “better regulation”. But what is quality and how do we distinguish the good from the better? In this volume, Xanthaki endorses the view that unequivocal principles of quality can be formulated if we take into account the primary aim of regulation to be efficacious. But she immediately adds to that optimism that these values and ends cannot be captured in hard and fast rules. Legislation is neither a science, nor an art, she argues, but an activity somewhere in between, which requires the Aristotelian virtue of phronesis, a “practical wisdom” resulting from a combination of intuition and experience. Her skepticism concerning the usefulness of a set of hard and fast rules for rulemaking is shared by William Robinson, who, after having sketched the state of affairs at the level of the European Union, concludes that manuals are “only part of the solution”. The broader approach to better regulation Robinson proposes is exactly to foster the kind of experience and training needed to the

Formal justice as a common language

Although the requirements ‘to give everyone his/her due’ and ‘to treat like cases alike’ are generally seen as formal principles of law, there has been a persistent debate among those who regard these principles as merely technical requirements (Kelsen, Hart) and those who regard them as expressions of moral ends (Radbruch, Fuller). In this contribution it is argued that this current dichotomy between technical means and moral ends obscures the true character and function of legal principles. Rather, the formal principles of justice and equality should be seen as heuristic and justificatory guidelines which help us to perceive and locate problems and to justify and criticise possible solutions. In order to fulfill these functions properly, however, it is vital that they remain open-ended and are not identified with specific moral end-values. Only then they can act as common points of reference by means of which communication in a pluralist society is furthered.