6
Good Governance: An Introduction
as a part of different legal orders, like domestic, regional, and the international legal order. The European order receives special attention. It should be realized that any legal regime has its own intellectual and ideological foundations, and good governance is no different. The ideas behind good governance must be made concrete as elements of a legal system according to the applicable secondary rules so that they can be recognized as legal principles of good governance. There is usually a close relationship between political ideas and their translation into legal substance. There are many bridges between law, ethics, and morality, and therefore it remains important to distinguish the philosophical ideal from the legal thought. At the same time, it is important not to lose sight of the ideological foundations of good governance. The very idea of good governance presupposes a certain concept of government and its relations with individual citizens. Naturally, it includes the evolvement of thinking from government to governance. Three steps have to be taken from the legal concept to the legal positivism of good governance: identification of the principles, their development as legal norms, and enforcement of those norms.13 The first step—identification—can be done by either a top-down or a bottom-up approach. First, the top-down approach concerns the international and regional (ie European) levels. Those who can legitimately initiate a process of norm creation at the international and the regional (eg European) level must agree on the operationalized aspects of good governance. In that context, it is relevant to realize that there may exist limitations and restrictions on the national level. From the bottom-up approach, there are inherently existing limitations to state power. State entities have been charged with a certain mandate: to shield the human being from the threats of daily existence. Naturally, that is not the same as the state being an almighty machine, tyrannically controlling everyone under its jurisdiction. As a matter of principle, the state has to limit its actions according to, at least, civil rights, for example, the right to privacy. Responsibilities in the sphere of social and economic rights follow. The second step concerns the internalization of the thus-defined legal norms in terms of legal commitment. It is about the implementation of international and regional legal norms by developing policy rules and other types of regulations at national level and the process of positivism of the legal norms on good governance. This process of positivism can be achieved in different legal forms and by different governmental institutions. Under the bottom-up approach, on the national level, different aspects of the principles of good governance have to be codified. We can think of codification of the different principles of good governance in general norms but also as the specification of these general principles in other government documents. These norms of good governance should be internalized in governmental actions. The third step contains the enforcement of legally binding norms, to be guaranteed at the abovementioned levels: international, regional, and national. Choosing which of these levels is appropriate will depend on the contents of the norms and the legal framework. If we take the principles of good governance to be rights, the question consequently and necessarily arises whether these principles should be enforceable as rights. This is known as the positivistic approach of good governance.
13
Tomuchat 2003; Van der Jagt 2006.
