Policies and laws are developed at various levels and by various actors: private, local, regional, national, European, international and transnational. This phenomenon of multilevel governance has affected the powers of political and judicial institutions at the level of the nation-state. It has also entailed the need to rethink the concepts of democracy, constitutional human rights protection, judicial protection, rule of law and division of powers. Nation-states are no longer the only guarantors of these values because their actions produce extraterritorial impacts. At the same time, received notions of representative democracy and constitutional monism are unsuitable to legitimize multilevel and private regulatory governance. The literature proposes various alternative forms of legitimation, such as deliberative polyarchy, deliberative supranationalism, new modes of governance, compensatory constitutionalism or global administrative law. This line of research broaches the study of multilevel governance under three headings and goes beyond standard analyses in the following ways:
This line of research recognizes that an analysis of the relationship between levels of governance must span all relevant levels of governance and fields of law. For instance, nation-state governance may interact with transnational governance to the detriment of supranational governance or with supranational governance to the detriment of international governance. It also recognizes that an analysis of shifts in the balance of power of political and judicial institutions necessitates examining priority rules, conflict rules, competence and jurisdiction rules, development of policies on informal relations between institutions and non-binding coordination processes and autonomous governance mechanisms. At times, informal or autonomous governance processes are transferred top-down or bottom up in multilevel governance systems but, in their turn, put under pressure the prerogatives of actors within the executive disposing of a political mandate, acting at the central level. By studying informal and autonomous governance mechanisms, our research can come to a comprehensive analysis of the compatibility with domestic constitutional law of state participation in multilevel governance processes and the substantive rules emanating there from.
Our research on legitimation of multilevel governance applies yardsticks from constitutional theory of democracy, constitutional rights, judicial protection, rule of law and division of powers. It also recognizes that an importance source for legitimacy of multilevel governance derives from positive law, for instance in the case of the EU, the consistency of secondary legislation and supranational judicial decisions with the founding treaties. Through collaboration with the line of research on ‘rule of law and constitutionalism’, this line of research subjects proposed forms of legitimation to a sustained philosophical evaluation against standards of social and political justice to see whether they protect the equal moral autonomy of persons. Taking the analysis of legitimation problems of multilevel governance to a higher level of abstraction by looking at the ultimate foundation of democracy, constitutional rights and rule of law in the moral autonomy of persons enables us better to evaluate the legitimacy of multilevel governance than existing analyses which start with politically and historically contingent notions of substantive rationality and procedural fairness. At the same time, the line of research recognizes that legitimation of multilevel governance need not be the same as that commonly ascribed to liberal-democratic nation states since multilevel governance is characterised by processes of rule-institution- and policy-formation at different levels of authority that do not emanate from nor replicate the processes and institutions we know from (liberal-democratic) nation states with a single constitutional text or tradition, a clear identification of powers of institutions and often reasonably clear legal commands. This open conceptualization of legitimacy is captured by the term multilevel good governance.
Instruments, legal principles and conflict rules
This line of research puts a distinct focus on proper law-making and administrative instruments that have risen to prominence in various legal systems of multilevel governance and combine substantive and procedural dimensions of legitimacy in a flexible manner or create heterarchical relations between levels of governance. These typically involve evidence-gathering requirements that can be used by political actors to voice claims and check the accountability of law-making institutions or the creation of new procedural mechanisms for substantive questions of law. We focus in particular, without limiting ourselves to particular fields of law, on regulatory impact assessment, risk assessment, experimental regulation, the subsidiarity principle and other principles as well as conflict rules involving accommodation of levels of governance, jurisdiction and competences and mutual recognition or institutional dialogue.
The aim of our analysis of institutional and legal change spanning all levels of governance and informal coordination is to develop an adequate and complete understanding of the interaction between levels of governance, shifts in the power of political and judicial institutions. The goal of the research on ideals consists in rethinking democracy, constitutional rights and rule of law across all relevant levels of governance and issues while remaining true to their ultimate normative foundation and being fully aware of the actual changes induced by multilevel governance. The objective of our study of legal and regulatory instruments, principles and conflict rules through the lens of substantive and procedural legitimacy and the vertical dimension of multilevel governance is to understand better how they function and assess whether they are or can become innovative instruments in the achievement of legitimate multilevel governance.
The multilevel good governance line of research also makes it its explicit aim to explore the contribution of shared governance to good governance and to integrate multi-and interdisciplinary perspectives into its research in recognition that other disciplines can generate important insights for the legal study of multilevel good governance.
Our approach is reflected in collaboration on federalism with researchers in the department of political science, researchers in legal and political theory and sociology of law and the multidisciplinary background of several staff members. The fiscal research within the ‘multilevel good governance’ line of research links with the research within the interfaculty institute Antwerp Tax Academy, which pays specific attention to the fiscal completion of autonomous governance mechanisms.
Our aim is to contribute to building knowledge in the field through publications of widespread international and national recognition.
According to which principles are competences allocated to the various levels of government, and according to what standards are they exercised? Where lays the Kompetenz Kompetenz? What is the meaning and impact of major principles, such as subsidiarity, proportionality, non-discrimination and others?
What is the relation between legal rules enacted at different levels? Do priority rules, hierarchy, conflict of laws or mutual recognition order the relations between levels of governance and if so, according to what standards and to what effect? Which interests come into play, from what sources do they originate and to what extent can they determine the adoption and application of legal rules in a multilevel setting? Which principles govern the concurrence of human rights? Which enforcement and compliance mechanisms are available? What is the resulting impact of legal rules enacted at one level in other levels of governance?
How do institutions at various levels interact with each other in formal legal and informal political ways, and not captured by formal priority rules, conflict of laws or mutual recognition? What is the impact of formal legal rules, devolution or embedment in federal, supra-, trans- or international governance structures on the role and powers of political institutions? How does embedment in a supranational legal system influence the federal structure of a state and the position of regional entities? Which techniques and modalities of allocation of competences are best suited to accommodate the specific needs of the federal state embedded in a supranational order?
What impact does the transformation into a federal state and the entry into supra-, trans- and international governance structures have on principles of public law and their ideal relation to each other, especially concerning democracy, the rule of law, human rights and sovereignty? Can such transformation also impact private law, and if so, to what extent or according to what standards?
How can multilevel governance be given legitimacy across all levels of governance? What are the foundations of democracy, justice, the rule of law and what are their equivalents in the context of multilevel governance? Can we rethink democracy in the absence of a demos and central representation of the people? What does it mean for a government to act for the ‘common good’, and for courts to grant judicial protection, in the context of multilevel governance?
Do we need to maintain legal certainty, clear allocations of competence and formal transparency rules in multilevel governance or is it better to strive for pluralism and co-existence between formal decision-making procedures and informal networks and private regulatory mechanisms?
How do principles of proper law-making, proper administration and due process contribute to the constitutional dialogue between courts and public institutions? Whom do they empower? Is this consistent with principles of democratic accountability?
Which constitutional dialogue originates from the national, European and international systems relating to the protection of human rights? Is judicial dialogue able to create unity in diversity?
Can principles of proper law-making, administration and due process be considered as the ius commune in a context of multilevel government? Are they sufficient to make multilevel governance in specific areas accountable and legitimate? Should we interpret the proportionality and subsidiarity principle as substantive or procedural if we want them to contribute to good multilevel governance?