What makes public policy legitimate in an era of reflexive governance?

Introduction: legitimating public policy

Administrative law scholars are observing that the traditional model of the command and control state is giving way to a mode of collaborative governance to solve public problems (De Burca & Scott, 2006). This change is often conceptualised as a shift from government to governance. A shift that is central to the evolving structures of the regulatory state. It is a shift that presents a challenge to the formal procedure of rulemaking in contemporary democracies. The body of rights and rules that generally goes by the name of law is changing. Power is increasingly entrenched in the multi faceted nature of rulemaking and the legal standing of these rules has become a central concern for public policy. In this regard, the shift from government to governance and the rise of the regulatory state has led to the juridification of society. There is a proliferation of rules and regulations but no guiding legislation that formally states what makes a specific regulatory-policy legitimate. The primary focus of this paper is therefore an attempt to answer this precise question: what makes public policy legitimate in an era of reflexive governance?

The paper will highlight the tension between new forms of governance, policy and traditional law. It will attempt to show that the gap between new forms of governance and rulemaking can be closed through a proceduralist approach to decision making. It will outline what appropriate procedures for policy making should look like. These draw upon the deliberative tradition of Habermasian legal theory. The structure of the paper will be based around six logical steps. Firstly I will outline the changing administrative nature of the Irish state. The key characteristic of this changing administrative structure is a proliferation of semi-state regulatory bodies. Secondly, I will illustrate how this changing administrative landscape results in a shift from government to governance. Thirdly, I will discuss how we should conceive the relationship between new forms of governance, policy and formal-law. Fourthly, the problem of democratic legitimacy will be presented as the primary challenge for policy makers in this new era of governance. The proliferation of rules requires legislation that formalises a procedural-substantive approach to policy making. Subsequently, I will identify the quasi-legislative and quasi-judicial procedures that should be adopted to legitimise public policy. Finally, the paper will conclude with some reflections on whether new forms of governance, rulemaking and regulatory structures require a re-conceptualisation of formal constitutional law.

Continued under the ‘law’ section above

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