Good Governance and Law
5
most important elements of democracy: legislation by parliament, ministerial accountability to the parliament, transparency of administration, participation for interested parties, and protection of minorities.11 Although there is not yet a specific, universally accepted, definition of democracy, equality and fundamental freedoms are at least identified as important characteristics of it. All citizens should be equal before the law, and all should have equal access to power. In a representative democracy, every vote has equal weight. In principle, no restrictions may apply to anyone who aspires to become a representative. Legitimized rights and liberties legally guarantee the freedom of citizens. The notion of representative democracy has arisen largely from ideas and institutions that developed during the European Middle Ages, the Age of Enlightenment, and in the American and French revolutions. Democracy has been called ‘the last form of government’ and has spread across the globe in the last century. Good governance is a norm for the government and a citizen’s right. Within the concept of good governance, more specific conditions have been formulated. These norms are sometimes linked to the norms of rule of law and democracy, but mostly they have their own contents. Aspects of good governance are properness, transparency, participation, effectiveness, accountability, and economic, social, and cultural human rights. These elements have developed into universal elements of good governance, although other norms or differing terminology might be found in practice as well, but these are accepted across cultures or are applicable across the board. These six basic elements of good governance have been found to be the hard core of the concept. An example could be the specification or restriction of the application of the principles of good governance to the field of administration. In the broader perception, the principles of good governance apply to all the powers of the state. Later in this book, a distinction will be made between principles of good governance and principles of good administration. In short, the broad conception of good governance can be specified according to the three types of state powers. It is about principles of good legislation for the legislator; principles of good administration for the administration; and principles of good judicial procedures for the judiciary.12 In the context of administration, two groups of principles have been joined: the principles of good regulation and the principles of better regulation. Some of the principles are also being used in the field of corporate and private law. Here we prefer to use principles of good governance in the context of the government, and principles of corporate governance in the context of companies.
2. Good Governance and Law Good governance has to be described as part of the legal system to label the principles of good governance as legal principles. In the context of the more extensive juridification of society, the legal appearance of the principles is becoming more and more important. Therefore, it is interesting to make this connection between good governance and law and to formulate an adequate concept of good governance law. However, this makes sense only if a connection can be made between such a system and an adequate concept of law, because then we can speak about principles of good governance as legal principles. The concept of a legal system requires a further specification, which contains norms and enforcement. The perspective chosen here primarily focuses on good governance 11 12
Van Wijk, Konijnenbelt, and Van Male 2005, 42; Konijnenbelt and Van Male 2014, 42. Addink 2005.
