2 - Relating governance and law

Summary

Introduction

The academic debate over new governance contains one aspect that may be surprising or even counter-intuitive to those approaching it for the first time. While new governance is most often seen as a political or administrative project, it has been defined through the categories and distinctions of law. This shouldn’t be. The Lisbon European Council decided that the OMC should be non-binding, and therefore not subject to the normal role of courts in practising judicial supervision and review. There are few cases in which the method has been discussed, and none in which its principal recommendations have been overturned. If governance lacks jurisprudence (the lifeblood of legal practice), then of what concern is it to the categories and distinctions of law?

At the same time – for something so far away – it is remarkable how much of the governance debate has been considered and defined in legal terms. Legal academics have probed the basic design and structures of governance, to the extent that much of the debate in which it is immersed has revolved around a limited number of influential legal studies. These studies have contrasted two projects; on the one hand, the attempt to ‘constitutionalise’ the EU through more clearly mapping the boundaries of European and national action – a project that has now metamorphosised into the present Lisbon Treaty – and on the other, the development in Europe of a multi-level governance structure (in which competences have been divided and shared). Lawyers have in a key sense set the terms of the policy debate in the absence of law; or, at the very least, in the absence of what we have traditionally understood by that concept.