LAW AND NEW GOVERNANCE IN THE EU AND THE US

Vol. 16 No. 11 (November, 2006) pp.868-872

LAW AND NEW GOVERNANCE IN THE EU AND THE US, by Gráinne de Búrca and Joanne Scott (eds). Oxford and Portland, Oregon: Hart Publishing, 2006. 440pp. Paper. £35.00/$70.00. ISBN: 1841135437.

Reviewed by Christoph Konrath, Parliamentary Administration, Austrian Parliament. Email: christoph.konrath [at] parlament.gv.at.

LAW AND NEW GOVERNANCE IN THE EU AND THE US is an important contribution to a rapidly growing scholarly, administrative, political and economic debate. “New Governance” is by no means a settled concept, and it is used in a number of contexts. Also, it is often too difficult (or not intended) to differentiate between analysis, evaluation or actual involvement (e.g. in administrative reform) of a contributor. And while “New Governance” is proposed by administrative bodies, interest groups and NGOs and intensively discussed by political and social scientists, lawyers, legal scholars and “the law” – as many might call it – carry on to have problems with this concept or are not even yet aware of it.

Thus, the aim of this volume is to explore the emergence of new approaches to governance in the European Union (EU) and the United States (US) from a legal perspective and to interrogate the relationship between constitutionalism, law and new governance. The essays represent the initial results of a research project that brings together some of the eminent researchers in the field. All of them are devoted to reporting carefully on messy facts that come along with many new governance approaches, and they draw reasoned conclusions from this close observation. The strength of this collection are its contributors, who have already shaped some key concepts of the debate and brought forth some of the most influential criticism of recent developments. Secondly, unlike other collections on new governance that tend to present a jumble of approaches to the topic or feature “an agenda,” all essays in this collection are informed by three distinct lines of inquiry. The first line of inquiry is a practical and empirical one; the second aims to interrogate the relationship between law and new governance, both through concrete case studies and conceptual reflections; and the third line of inquiry addresses the relationship between new governance and constitutionalism. In sum, this provides the reader with an overview of the praxis and theory of new governance that avoids both the extreme claim of fundamental incompatibility between law and new governance, and the claim that new governance will be law’s bright future (p.396).

All contributors do, however, apply a distinct approach to new governance, namely “democratic experimentalism.” This concept has been shaped by – among others – Michael Dorf, Oliver Gerstenberg, Charles Sabel and William H. Simon (e.g. Dorf and Sabel 1998; Gerstenberg and Sabel 2002; Sabel and Simon 2004). They emphasize the importance of “lower level actors” who are granted autonomy to “experiment with solutions of their own devising [*869] within broadly defined areas of public policy.” In return, those actors furnish central or higher-level units with information regarding their goals and – this is crucial – agree to respect framework rights of democratic procedure and substance which will be elaborated in the course of experimentation itself (Gerstenberg and Sabel 2002). This is, of course, a demanding and aspiring program which some might regard as idealistic. However, it can provide a means to reconnect the governance of a heterogenous polity to concepts of democratic legitimation and the rule of law, as it is shown in Gráinne de Búrca’s and Joanne Scott’s book.

The editors regard new governance as “a construct that has been developed to explain a range of processes and practices that have a normative dimension but do not operate primarily or at all through the formal mechanism of traditional command-and-control-type legal institutions” (p.2). Of course, such developments are not necessarily “new” viz. “recent,” but in sum they are distinctive from what has been before and how it was conceived. New governance does – increasingly – present significant practical and conceptual challenges for law and lawyers as well as for common notions of democracy, self-government and constitutionalism.

De Búrca and Scott try to capture these challenges in three – admittedly – tentative theses which have a descriptive as well as a normative dimension and serve as a framework for the articles that follow: the “gap thesis” attests to the existence of disparity between formal law and the practice of governance. This thesis can be based on the “blindness” of legal texts to the various modes and forms of new governance, as well as on the view that law can and will be an impediment to new governance (viz. administrative and economic reforms). The foremost example is the (yet unratified) Constitution of Europe that does not account for the various instruments of new governance shaping the structure and policies of the EU. The second thesis is called the “hybridity thesis,” based on the co-existence and engagement of law and new governance. Thus, law and new governance are understood as mutually interdependent and sustaining. This concept is proposed in a number of articles in the present volume and comes in various shades. Lastly, the “transformation thesis” argues that “new governance has demanded, and will increasingly demand, a re-conceptualisation of our understanding of law and the role of lawyers” (p.9). This thesis claims that a lot of discussions on and about new governance are predicated upon an unduly formalistic and positivistic account of law. Such an account will, however, overlook that law as a social phenomenon in itself is necessarily shaped and informed by a number of practices, especially those of new governance. Finally, this volume tries to explore the relationship between new governance and constitutionalism – as systems of law and governance alike derive legitimacy from the constitutional framework within which they operate. This line of inquiry is of special relevance as the concept of constitutionalism is as highly elusive and contested as that of new governance, [*870] given the debates about a European Constitution.

The book is divided into four parts. Part I explores conceptual problems of new governance, law and constitutionalism. It starts with a comprehensive analytical approach to the notion of constitutionalism by Neil Walker. The discussions about EU-constitutionalism show how constitutionalism is understood and used in the current debates on new governance. In turn, Walker reconceives constitutionalism itself, viewing it as a “responsible discourse of transformation.” William H. Simon argues for the above mentioned “transformation thesis” by developing a model of “Toyota jurisprudence.” His discussion of the Toyota Production System as if it were a legal system is not only original but provides valuable insights in a system of rules and principles emphasizing the goals of learning, innovation and collective decision-making. By turning to some examples taken from public law innovation, he shows how a Toyota-like approach can actually be adopted in a legal context. David M. Trubek, Patrick Cottrell and Mark Nance conclude this conceptual overview by discussing the notions of “soft law” and “hard law” in the context of new governance in the EU. Given that there has been an increase in interest in soft law, this chapter provides a worthwhile introduction and criticism of the debate.

Part II presents a number of case studies from Europe that provide a detailed yet very accessible and well-researched analyses of new governance and law in a number of policy fields. It is here that the conceptual approaches are exemplified and confronted with empirical data. These examples demonstrate how new governance and law are interdependent and how i.e. a traditional human rights model can be supplemented by new governance. Graínne de Búrca asks whether the EU Race Discrimination Law is such a hybrid model. Claire Kilpatrick analyses EU employment governance and constitutionalism and shows how the EU has acquired and transformed governance tools already well established in the member states. Catherine Barnard argues that the principle of solidarity enshrined in the European Treaties becomes a focal point for new governance in social policy. Tamara K. Hervey explores how the regulation and reform of health care are prone to concepts of new governance. And finally, Joanne Scott and Jane Holder turn to environmental governance, long one of the principal inspirations for the debates on and the promotion of new governance.

Part III offers a number of case studies from the United States that draw on parallel or similar developments. Louise G. Trubek considers recent developments in health care regulation and analyses how new governance practices challenge the New Deal/Great Society administrative state. Orly Lobel shows how governing occupational safety requires more than promulgating rules about hazard abatement, as well as how legal barriers stand against the ends of workplace safety. Bradley C. Karkkainen argues that environmental regulation is shifting from reliance on direct regulatory prescription of [*871] mandatory rules of behaviour to more flexible regulatory strategies. Drawing on works of democratic experimentalism, he shows that some rules operate as regulatory penalty defaults that are both information-forcing and action-forcing. Further on, he introduces the concept of an “administrative destabilization right” as a legal avenue to dis-entrench failing institutions. Susan Sturm focuses on the intersection of disciplines, institutions and regulatory systems expected to co-operate under the heading of new governance. Fluency across their various domains, as well as the capacity to bridge the normative and the empirical, are exemplified by a discussion of gender equity regimes.

While the various contributions to this book examine similar developments in the EU and the US and do not feature a comparative focus, Part IV offers two comparative studies and an epilogue. Paul Magnette and Justine Lacroix compare the “European” and the “American Experience” of constitutionalism. This chapter is – of course – devoted to constitutional theory, but as the various contributors of this edition each adhere to certain concepts and visions of constitutionalism, self-government and citizen-involvement, it is of special importance to compare their attitudes with this rather sober analysis. Mark Tushnet, who has brought forth a number of forceful criticisms of new governance, confronts the contributors of the present volume with the question about the political circumstances under which some innovations become significant in shaping large-scale policy. Finally, Charles F. Sabel and William H. Simon, whose previous work is a major source of inspiration for many of the contributors, furnish the volume with an epilogue. They assess the various chapters and observations and show how these – implicitly or explicitly – support their own thesis of a major transformation of law and the legal system.

By exploring diverse policy sectors and subjects, this book offers an intriguing overview of and introduction to new governance, law and constitutionalism in praxis and theory. At the intersection of disciplines, institutions and regulatory systems expected to co-operate under the heading of new governance, the contributors demonstrate how this can actually be “done,” how the normative and the empirical can be bridged. In sum, this book challenges our understanding of law and constitutionalism in the EU and the US, and it can well serve as a starting and focal point for further and deeper discourse on new governance.

REFERENCES:

Dorf, Michael and Charles F. Sabel. 1998. “A Constitution of Democratic Experimentalism.” 98 COLUMBIA LAW REVIEW 267-463.

Gerstenberg, Oliver, and Charles F. Sabel. 2002. “Directly-Deliberative Polyarchy: An Institutional Ideal for Europe?” Joerges, Christian and Dehousse, Renaud (ed.), GOOD GOVERNANCE IN EUROPE’S INTEGRATED MARKET. Oxford, Oxford University Press. [*872]

Sabel, Charles F., and William Simon. 2004. “Destabilization Rights: How Public Law Litigation Succeeds.” 117 HARVARD LAW REVIEW 1015-1101.

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