Good Governance , Concept & Context

Page 84

The Relationship between Law and Values

59

Partly because of its dogmatic legal dimension, the principle-​focused approach is sensitive to the legal aspect of those principles. Two points can be touched upon. The first is that those principles which grant the best interpretation of the relevant legal materials form part of the law. This is, of course, an idealistic description in reality; one probably recognizes a gradual evolution of different principles from a soft law character to ‘harder’ law. The second is that these principles are related to the legal materials, which brings its own specific normative force. In relation to this, it is useful to recall the interesting observation made by Koopmans regarding the general principles of law in European and national systems of law in general, that they are, in a certain sense, commuters. Frequently, they travel from national legal systems to European Union law, as principles common to the legal systems of the Member States. Subsequently, after having been baptized as general principles of Union law, they travel back to national systems as part of the influence of Union law on national law.29

He also concludes: general principles are not, or not any more, used to patch gaps left between legal provisions duly enacted by the framers of laws, constitutions or treaties. On the contrary, they are an integral part of the conceptual tools judges employ nowadays for settling conflicts.30

This development corresponds, in Koopmans’ view, with a broader evolution in which growing reliance on general principles of law is part of the answer to the question of the increasing inadequacy of more traditional sources of law. These include the usual codes, statutes, and regulations in light of technological progress, rapid processes of social change, and the globalization of the economy. The principles of good governance, as expressed in these several conceptions, form an interpretation of the rules expressed in the legal materials. So, as Dworkin argues, they are related to these rules in two ways. On the one hand, they fit coherently with the rules, on the other hand, the principles—​as an expression of the point of good governance—​exert an influence on these rules themselves, as Dworkin makes clear in relation to an imaginary example of the rules of courtesy: that the requirements of courtesy—​the behaviour it calls for or judgments it warrants—​are not necessarily or exclusively what they have always been taken to be but are instead sensitive to its point, so that the strict rules must be understood or applied or extended or modified or qualified or limited by that point.31

As a special case, we can think of the situation where a principle that has implicitly been part of the law is at a certain moment codified in a piece of legislation, as is the case with some general principles of good administration in administrative law. In this section, the principles of good governance have a function in line with the third group of principles according to Dworkin. The principles provide internal fundamental basics for the administration. Multilevel developments shape this underlying basis.

3. The Relationship between Law and Values The literature elaborates that the relationship between law and political and moral values is often characterized as a complex topic.32 The first is reductive, in the sense 29 32

Koopmans 2000, 25. Cane 2002, 5.

30

Ibid, 34.

31

Dworkin 1986, 47.


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Articles inside

Index

44min
pages 332-353

Bibliography

38min
pages 306-331

Governance

14min
pages 301-305

2. Part II: The Specification of the Principles of Good Governance

8min
pages 298-300

4. Conclusions

9min
pages 291-294

of Human Rights

2min
page 290

2. Good Governance in International Case Law

2min
page 289

Ombudsman

17min
pages 280-285

4. Conclusions

3min
pages 286-287

Court of Justice

30min
pages 270-279

Institutions

2min
page 269

16. Implementation of Good Governance Principles on the European Level

2min
page 268

5. Conclusions

2min
pages 266-267

South Africa

13min
pages 261-265

3. Implementation of the Good Governance Principles in Canada

21min
pages 253-260

7. Conclusions

12min
pages 220-224

2. Implementation of Good Governance in Northern Europe

2min
page 226

6. Cases about the Implementation of Good Governance Principles

5min
pages 218-219

5. Different Developments in the Practices of Different Countries

2min
page 217

2. Concept and Principles of Good Governance and Integrity

2min
page 212

Practices of Good Governance

6min
pages 214-216

the Non-EU Country Studies

1min
page 213

1. Good Governance: The Need and the Practical Relevance

2min
page 211

6. Conclusions

1min
pages 207-209

5. Sources of the Principle of Human Rights

14min
pages 201-206

3. Specification of the Concept

2min
page 198

2. The Concept of the Principle of Human Rights

2min
page 197

4. Institutions Involved

4min
pages 199-200

6. Conclusions

1min
page 195

5. Sources of the Principle of Accountability

5min
pages 193-194

2. The Concept of Accountability

5min
pages 183-184

6. Sources of the Principle of Effectiveness

5min
pages 179-180

7. Conclusions

1min
page 181

5. Institutions Involved

10min
pages 175-178

4. Specification of this Concept

2min
page 174

3. The Concept of Effectiveness

12min
pages 170-173

6. Conclusions

3min
pages 164-165

2. Development of the Principle of Effectiveness

5min
pages 168-169

3. Specification of the Concept

10min
pages 157-160

5. Sources of the Principle of Participation

5min
pages 162-163

4. Institutions Involved

2min
page 161

1. The Development of the Principle of Participation

2min
page 155

9. The Principle of Participation

2min
page 154

2. The Concept of Participation

2min
page 156

6. Conclusions

2min
pages 152-153

5. Sources of the Principle of Transparency

20min
pages 145-151

4. Institutions Involved

8min
pages 142-144

3. Specification of the Concept

7min
pages 139-141

2. The Concept of Transparency

5min
pages 137-138

2. The Concept of Properness

2min
page 125

5. Conclusions

1min
pages 121-123

3. Specification of the Concept

21min
pages 126-133

3. Democracy and Transparency

2min
page 119

4. Democracy and Participation

2min
page 120

2. Democracy: Direct and Representative

2min
page 118

6. The Role of Good Governance Related to these Developments

2min
page 114

7. Conclusions

1min
page 115

3. Rule of Law and Rechtsstaat: Specification of Differences

5min
pages 106-107

5. Difficulties and Developments of the Traditional Rule of Law

5min
pages 112-113

4. Rule of Law and Rechtsstaat: Formal and Substantial Perspectives

11min
pages 108-111

2. Different Historical Roots and Traditional Perspectives

2min
page 105

7. Conclusions

3min
pages 98-99

5. Good Governance and Integrity

18min
pages 89-95

4. The Nature of Principles in the Legal Theory

7min
pages 86-88

3. The Relationship between Law and Values

5min
pages 84-85

6. Conclusions

4min
pages 78-79

5. Good Governance on the International Level

12min
pages 73-77

2. Dworkin and Hart

8min
pages 81-83

4. Good Governance on the European Union Level

14min
pages 68-72

3. Good Governance and the Europeanization of National Law

4min
pages 66-67

2. Good Governance on the National Level in Europe

25min
pages 57-65

7. Conclusions

2min
page 49

4. Good Governance and the Main Developments

9min
pages 34-36

2. Concept of Good Governance

8min
pages 41-43

6. Conclusions

3min
pages 38-39

4. Institutions Involved within a Framework of Checks and Balances

6min
pages 45-47

Implementation of Good Governance in the United Kingdom

2min
page 31

2. Good Governance and Law

2min
page 30

5. Structure of the Three Parts of this Book

2min
page 37

3. Specification of the Principles of Good Governance

2min
page 44
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