Governance and public decision making

Presentation

This line of research focuses on the ‘governance’ aspect more specifically. Whereas ‘governance’ is also central to the first line of research, both lines differ as to their angle of incidence. Rather than studying the interdependence of different legal orders (i.e. the ‘multilevel context’) in a globalized context and their effect on the organization of and decision-making by state institutions, this line of research explores the way in which institutions on a single political level act and interact. The principles of proper rule-making, administration and due process are regarded as guiding precepts in this matter. Considerable attention is moreover paid to the way in which various public and private actors become partners in legislative, administrative and judicial decision-making.

The organization and legal design of public decision-making is studied across the three traditional state-powers. Whereas it is acknowledged that decision-making within the legislative, the executive and the judiciary each has its own characteristics, common contemporary trends are also discernible. One of these trends has been the development of fundamental legal principles that aim to safeguard the quality as well as the legitimacy of public decision-making. Both the delineation and the enforceability of these principles, as well as the more concrete rules that sometimes embody them, are studied. In this context, principles of proper legislation, proper administration and due process are regarded as instruments that combine substantive and procedural dimensions of legitimacy and that help individuals and groups to take part in policymaking and implementation, as well as offer protection against arbitrary government conduct.

The position of individuals, vulnerable groups and social groups in very particular circumstances has a special place in this research agenda. This includes both citizens and enterprises, as well as civil servants and (stateless) refugees. The altered position of the citizen, however entails duties, as well as rights. These duties are often referred to as the “principles of proper citizenship”. This results in a (more) reciprocal and horizontal administrative law. For questions of legitimacy which this evolution entails, the “Constitutionalism and rule of law” line of research offers guidance. In this line of research, the emphasis is rather placed on specific and urgent problems.

Some of the most important recent evolutions in public law concern the transformation or renewed interpretation of the role that it fulfills. Traditionally and in most (domestic) legal systems, public law had an essentially curative function: it offered legal protection ex post facto. Hence, legal scholarship in this field focused on procedures of judicial review and related mechanisms. Nowadays however, legislation and principles of public law are (also) expected to work in ways that are preventive and ensure that the quality of decision-making is guaranteed during the actual decision-making process. A second evolution, however, has been the shift from an approach to public law that focused on legal protection – taking the position of individual citizens as the main focal point – towards an aspiration of increasing the legitimacy of public decision-making. The latter approach may involve taking into account the interests and concerns of a variety of actors, including individuals (other than direct addressees) and organizations of civil society. This implies that citizens are no longer mere ‘subjects of law’ who find themselves in a hierarchical relationship with public authorities, but valued and active actors, who co-direct policy through participation and co-execute and form policy via amongst others rulings, covenants, public-private cooperation and mediation. From this viewpoint, governance fulfills an emancipatory role for citizens.

The altered relationships in public law nevertheless do not only entail advantages, but also imply dangers for the position of citizens. Whereas a traditional “government approach” places citizens in a vertical and uniform relationship with “the government”, citizens nowadays find themselves in more horizontal and diverse relationships with different public actors, such as traditional administrations, (semi-)private administrations, civil society and private persons performing government tasks. The last decades have indeed seen substantial transformations in the organization of government institutions, especially within the executive or the administration. Therefore, the line of research also studies how government institutions are designed, how they relate to each other, how they interact etc. The dynamics and interrelatedness between substantial, institutional and procedural public law can moreover not be disregarded. Phenomena such as agencification have made the government landscape more complex and represent potential dangers in terms of transparency and legal certainty. On the other hand, they have encouraged governments to devise procedural rules in such a way that they contribute to the legitimacy and accountability of public decision-making resp. public decision-makers, in order to compensate for the loss of (direct) political control.

This complex reality confronts the (public) law with specific challenges with regard to legal protection: diversification requires tailoring, but a proper system of legal protection also requires clarity, transparency and legal certainty for citizens. The question arises how these values can be guaranteed in the network structure that  is the government today. The personal scope of public law rules and principles that aim to protect and consolidate citizens’ position, still (too) often refers to traditional government notions and consequently does not sufficiently take into account the transformation of the public landscape. The question arises how the legislative, the administration or the courts remedy such situations. Another (related) difficulty concerns the way in which horizontal interactions and procedures can be fitted into more traditional, vertical configurations of public decision-making, which have to be respected by governments. To what extent should administrations for instance feel obliged to comply with the results of participation procedures when they make use of their (coercive) decision-making powers? In other words: how can horizontal and vertical relationships be tuned?

This multiplication and variety of actors, instruments and procedures is not limited to the executive. The legislative for instance has witnessed the emergence of ombudsmen and related institutions, which have come to play a crucial role as independent and impartial mediators between elected representatives and citizens. Judicial decision-making, on the other hand, is on the verge of reforms that aim to put governments and citizens on a more equal footing, for instance by introducing possibilities of mediation within the framework of court proceedings. A particular challenge in this regard is to identify the cases in which such alternative forms of dispute resolution are lawful and suitable. Another research question looks into the extent to which these evolutions regarding the enforceability of rights vis-à-vis governments can contribute to actual, sustainable problem resolution. More in general, this line of research also aims to reflect how the judiciary’s potential to solve problems can be enlarged. Which techniques do courts already employ and can we equip them with a broader range of instruments to settle cases (e.g. the so called “administrative loop”)?

Apart from a strictly legal analysis, this line of research also applies methods from other disciplines such as sociology of law, for instance when doing research on the functioning of mediation (ombuds)services, the judiciary, the right to housing and the practice of consultation.

Objectives

This line of research aims to perform:

1.  Research on the multiplicity of actors and instruments that play a role in contemporary public decision-making and how this diversity can be tuned in open and transparent decision-making procedures.

2. Research on the changed position of citizens in their relationship to the government: the evolution from a hierarchical relationship of authority to a more horizontal network structure. This includes the redefinition of both the role and scope of the rights that citizens enjoy and the duties that rest upon them, as well as their enforceability.

Research questions

In relation to objective 1: the multiplicity of actors and instruments that play a role in contemporary public decision-making

In the modern regulatory state, public administrations assume the role of facilitator and regulator, in close cooperation with citizens, economic actors and social groups. The question arises how this affects the legal design of administrations and decision-making procedures as well as public values or principles of good governance such as transparency.

 

This line of research covers the following questions:

What new forms of administrative organization emerge as a consequence of this trend and how do they relate to the traditional configuration?
How do governments engage, regulate and control private actors performing public responsibilities and tasks? 
What new forms of regulation characterize (networks of) public administrations?
What forms of horizontal administration exist and what rules govern these experiences?
How do new models of administration institutionalize modern public law values such as participation, consultation and expertise-based decision-making?
What are the accountability frameworks in place for these new models of administration?
What is the role of technical expertise in contemporary public decision-making?
What are the limits to the judicial review of administrative decisions in technical domains?
How do constitutional courts encourage constitutional dialogue between the diverse state powers and and institutions?

In relation to objective 2: the changed position of citizens in their relationship to the government

The question arises how the emancipation of citizens (either individually or in civil society), in the sense that they actively participate in public-decision-making, affects legal relationships between public authorities and legal subjects. Especially important is the search for new sources of legitimacy in governance relationships, such as procedural fairness.

In this regard, the line of research looks into the following questions:

How did the legal position of citizens change in their relationship to the administration and what are the consequences of this for the rights and duties of both?
How can new governance instruments and procedures reinforce the position individuals and groups in vulnerable or specific circumstances more in particular?
How can legal certainty with regard to the rights and duties of citizens in complex network structures be guaranteed?
How does the government choose to regulate its sovereign functions (e.g. public security and safety) and the coercive powers that go hand in hand with them in this context of horizontalization?
What means does the government have at its disposal to enforce rules vis-à-vis citizens? Which rules and principles govern the use of these enforcements mechanisms?
What is the role and meaning of the diverse principles of proper rule making and administration from the viewpoint of the position of citizens? To what extent do they contribute to both the quality and the legitimacy of public decision-making?
Which role do the principles of good faith and proper citizenship play in the judicial assessment of government acts?
How does horizontalization affect legal protection against government acts? What (distinct) roles do administrations themselves, ombudsmen, mediators and courts play in this context? How is the quality of procedures brought before these diverse actors guaranteed?
Which principles of proper adjudication govern dispute resolution by the judiciary?
To what extent and under which circumstances can or should judges be prepared to act remediating vis-à-vis both the legislature and the executive, taking into account the separation of powers doctrine?
How can accessibility of the judicial system be improved?
How can the problem solving capacity of the judicial system be improved?
What are the possibilities and limits of mediation with administrations?