Good Governance , Concept & Context

Page 86

The Nature of Principles in the Legal Theory

61

Another opinion is that political theory or the theory of the state do not ignore these values and, as a result, this theory has influenced the interpretation of these values positively. Craig elaborates upon several topics which are examples of these values. These are: the nature and object of public law, three theories (red, green, and amber), the nature and object of public law, changing boundaries of state action, central concepts in public law, sovereignty, the rule of law, the separation of powers, doctrinal issues, the vertical dimension, and doctrinal issues with a horizontal dimension. The conclusion is that law is, to a certain extent, dependent on political theory. So public law, political theory, and political science interact, which is actually accepted in the Dworkian theory of adjudication as well as in the positivistic line of, for example, Raz.41 For Raz, legal positivism means that there is no conceptual relationship between law and morality. His theory of norms refers to rules that serve as a guide for human behaviour in a legal system. His focus is on the authority law, as well as people under a particular system and the authority that society should acknowledge as due to the law. These questions are relevant for law and society as they affect the daily lives of individuals.

4. The Nature of Principles in the Legal Theory In the article ‘Good Governance: A Norm for the Administration or a Citizen’s Right?’,42 the question was whether good governance refers to principles, rights, or values in the context of the legal developments at the European level. The article showed that codes of good administration have been developed by both the European Union and the Council of Europe. Several principles of good governance have been codified and these principles are recognized in the case law of both courts. In the Lisbon Charter, good governance was established as a citizen’s right. Recently, the ECtHR reiterated the importance of good governance.43

(a)  Theory of constitutional rights In his book, Theory of Constitutional Rights, Alexy develops a comprehensive conception of constitutional rights.44 His central thesis is that constitutional rights are optimization requirements and therefore need to be balanced. He explains this as follows:45 The definition of principles as optimization requirements leads straightaway to a necessary connection between principles and proportionality. The principle of proportionality (Verhältnismä ßigkeitsgrundsatz), which in the last decades has received ever greater international recognition in the theory and practice of constitutional review, consists of three sub-​principles: the principles of suitability, of necessity, and of proportionality in the narrower sense. All three sub-​principles express the idea of optimization. Principles qua optimization requirements require optimization relative both to what is factually possible and to what is legally possible.

What can his ideas contribute to the concept of good governance? First, many courts are developing an enormous amount of jurisprudence engaging in constitutional rights reasoning and in some theoretical material from legal scholars. Unfortunately, not much has been written on good governance yet, but some liberal 41 43 45

42 Raz 2003; Raz 2009. Addink 2008. ECHR 2 October 2012, 5744/​05 (Czaja v Poland). Alexy 2016, 65.

44

Alexy 2002.


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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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