2. Concept of Good Governance

the norms more accessible to citizens. In addition to GALA, a Code for Good Public Governance has been published by the Netherlands Minister of Interior Affairs. The executive bodies of all public authorities adhere to this Code. The Code prescribes, for instance, how executive bodies and public servants should behave in their dealings with private citizens, businesses, and other public authorities.2 This is important because it increases trust in public authorities among the general public and private institutions, self-awareness and integrity within the authorities themselves, the professionalism and l’esprit de corps within the authorities, and transparency regarding the core duties. But this is not the only Code of Good Governance; each policy (sub) sector in the Netherlands has its own Code, so that today about twenty Codes of Good Governance can be found in the Netherlands. Here we begin to see the problem of the fragmentation of the norms of good governance.

2. Concept of Good Governance

Good governance is not only about the proper use of the government’s powers in a transparent and participative way, it also requires a good and faithful exercise of power. In essence, it concerns the fulfilment of the three elementary tasks of government: to guarantee the security of persons and society; to manage an effective and accountable framework for the public sector; and to promote the economic and social aims of the country in accordance with the wishes of the population. A distinction is drawn between an institutional and a functional approach in the achievement of good governance.

The institutional approach of good governance is related to, for example, a minister or a civil servant, administrative authorities, or the public prosecutor, each competent to fulfil a specific function. In the functional approach, the focus is on the fulfilment of a specific function. These functions depend on the tasks endowed to a specific institution. Within the functional approach, the licensing function and the supervision function are distinct from each other. The licensing function refers to legitimacy ex ante, whereas the supervision function refers to legitimacy ex post.

The functional content can be split into good governance as part of public law and corporate governance as part of private law. Although these are not entirely separate, public law3 and private law have different tasks and functions and also different processes of legitimization. Whereas public competences must have a legal basis in constitutional law and should be legitimately exercised, the legitimacy of private actors’ exercising of authority is still somewhat diffuse. In the literature, attention is paid to the legitimacy of transnational private regulation, in which principles of good governance are recognizable.4 It should also be noted that the public and private use of principles of good governance mutually influence each other, and this contributes to the development of the substance of the principles of good governance.

2 Ministry of the Interior and Kingdom Relations. Department of Public Administration and Democracy, The Netherlands Code for Good Public Governance, July 2009, 20522 | 3273–GMD32, available in English: <https://www.integriteitoverheid.nl/fileadmin/BIOS/data/Internationaal/ Netherlands_Code_for_Good_Public_Governance.pdf>. 3 Elliott and Feldman 2015, ch 1. 4 Curtin and Senden 2011, pp. 163–88; Kingsbury, Krisch, and Stewart 2005, pp. 15–62. In this article, attention is paid to procedural standards like participation and transparency and substantive standards such as proportionality, means-ends rationality, avoidance of unnecessarily restrictive means, and legitimate expectation. (pp. 37–41).

A second point concerns the meaning of the principles of good governance: first, governance: an extensive interpretation of governance may fit the best, since both public and private actors can profit from these norms, albeit in different ways; second, principles: it is with good reason that we refer to these norms as principles. It underlines the fundamental nature of these notions and links these with other existing principles of law. Principles have a legal character so they can be invoked before the competent authority and the judiciary. Inherent to principles is that they are more flexible than regulations. To conclude, the terminology of principles of good governance is already accepted in literature, case law, and in legislation. The question may arise whether principles of good governance are mainly legal principles or policy guidelines. The answer is both: although they can serve as policy guidelines, the legal character of these norms is of striking importance. It makes the principles far less informal and more obligatory.

Some further remarks now follow concerning important terminology in the context of good governance.5 These include governance and administration, good governance and principles of good governance, and principles of good governance and principles of proper administration.

(a) Governance and administration First, we must note that, in some countries, no difference is made between governance and administration. In other countries, governance is related to the three or four powers in a state. Administration refers, then, to one of those powers, based on the separation or balance of powers in the modern state. The word administration has a double meaning: it is not only related to the institution but also to the activities performed by the administration. In the Walker Oxford Companion to Law, the following definition is provided for governance: exercise of authority, control; government, and arrangement. Two other brief descriptions of governance are: the act, process, or power of governing; the state of being governed. Two additional descriptions are: the persons or the institutions who make up a governing body (government) and who administer something; the act of governing, exercising authority (governance).

For administration, the following definitions are provided: the act or process of administering, management of a government, the activity of a government in the exercise of its powers and duties, the executive branch of a government, office of an executive officer or body, law management and disposal of a trust or estate, dispensing, applying, or tendering of something such as an oath. Also, this term is formerly used for the body of persons appointed to carry the government of the country, now usually called the government.6

Different definitions already exist in the field of law and many more exist in other sciences. Different meanings of the word ‘governance’ have been found, especially in political science. The political scientist Robert Rhodes found at least six uses for the term ‘governance’.7 He primarily refers to the methodology of government in the postmodern, minimal state, which is comparable with notions of good governance. The other sets of meanings are concerned with systems analysis, socio-cybernetic systems, and self-organizing networks. Most of these definitions are, not surprisingly, related to the political science approach.

At the same time, both the legal and political scientists agree in essence with the critics of the London School of Economics Study Group on European Administrative

5 Addink 2005. 6 Walker 1980. 7 Rhodes 1996, pp. 652–67.

Law. They encourage the European Commission to clarify in detail the definitions in the White Paper. An institutional and instrumental perspective should be accompanied by a normative approach. In the case law of the Court of Justice of the European Union and the European Ombudsman, we often find mention of the terms ‘maladministration’ or ‘principles of good administration’.

Both governance and administration could be used in accordance with an administrative law perspective. They imply activities promoting the general interest by the fulfilment of a public task. Therefore, here we could have used the terms ‘public governance’ or ‘public administration’ as well. However, the exercise of a public responsibility may not be fulfilled by the traditional administration on a central or decentralized level only. In some countries, several of these responsibilities are entrusted to independent administrative bodies and private institutions which carry out these activities in the general interest and which have no hierarchical relation to the other parts of the government. Norms of good governance are relevant for these institutions too. As stated above, we uphold a broad perspective on governance, although a narrow one can prevail in some countries, at least in the field of public administration.8 This piece does not make a systematical distinction between good administration and good governance because the separation of state powers is not entirely the same in all Western countries. For example, the United States adheres to a strict separation, whereas Australia has a milder separation between the legislature and the executive.

Moreover, similar types of governance norms develop in the private sector, for example the emergence of the principles of corporate governance and the topic of corporate social responsibility in which we also recognize similar private governance norms. Governance in the public administration context refers to the principles of good governance or good administration, which often connote the development of different examples of social networks. Using principles of good governance in the process of developing networks can be seen as the secondary function of these principles. These networks can be seen as new arrangements of governance. One of the crucial features of these developments is that they concern a diversity of sectors.9 Therefore, we have found two different functions for the development of the principles of good governance.

(b) Good governance and principles of good governance The focus here is not on different, individual acts of governance (governance), but rather on the different principles as the overarching steering mechanisms for these activities (the principles of good governance). As we look for parameters of good governance, the focus in the discussion should be on the principles of good governance. In the literature, this is also referred to as governance, including the methodology of government in the post-modern, minimal state, which deals with the concept of good governance (but mainly the efficiency targets of new public management). These norms of effectiveness and efficiency are actually included in the principles of good governance, albeit as part of a broader norm setting. This gives nuance to a mainly economic perspective on governance.10

The term ‘governance’ has a non-normative content and therefore there is a preference to use the term ‘good governance’ in the legal and normative non-legal discussion. In these discussions on good governance, we refer not only to orders and decisions by

8 Chiti 1995, pp. 241–58; Nehl 1999, p. 17. 9 Van Kersbergen and Van Waarden 2004, pp. 143–71. 10 IMF 2018.