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Forum Paper Title: New Governance Fatigue? Administration in the European Union
Description of Forum Paper:
This paper explores a narrative of governance as administration in the EU. The contrapuntal framework for analysis is provided by a widely used paradigm in EU policy analysis: that which is composed by the interrelated notions of ‘new governance’, ‘multilevel governance’, and ‘network governance’. This paper is not a comprehensive study of the approaches just mentioned. A specific question draws the analysis: how to fulfill the two indispensable –yet often conflicting- goals of regulatory efficiency and democratic legitimacy. This leads to focus on two key elements of new governance: the reliance on the principles of flexibility and partnership in the design and implementation of regulatory tools. Flexibility seemingly deals with the efficiency problem, and partnership solves that of legitimacy. Yet, I show in my paper that new governance turns out weakest precisely on these grounds, either by brushing off the democratic implications of the paradigm through some reference to the automatic legitimating value of enhanced participation, by believing in the fulfillment of accountability through process transparency, by being unable to give substance to the admitted need for better accountability mechanisms, or due to the absence of solid empirical backing to the assertion of feasibility of the model(s).
I further argue that some difficulties encountered in this regard by new governance might be related to a certain aversion of these approaches towards the notions of government and administration. Having detected some insufficiencies and obsolescence of certain formulations of the administrative state, new governance seemingly disposes of it in its entirety. The new governance paradigm(s) find themselves not only facing the challenges of proposing a new way of thinking about a problem, but also constrained by that ‘newness’ mode in the strategic choice of regulatory solutions. Thus, new governance suffers from a ‘double blind’: the insufficiencies of a model yet to be perfected, and the unwillingness to resource to elements that can be identified with the ‘old’ paradigms of the regulatory state.
My answer to these dilemmas may be considered a form of return to administration that may facilitate a virtuous cycle of feedback between the two approaches; the purpose is not to side with either form of discourse, but to establish a common code of understanding that may encourage further engagement. A mere return to administration does not solve the question that this paper addresses, since the questions of efficiency and legitimacy are precisely the kernel of administrative law thinking for many a decade. This fact charges us with the heaviness of a problem many times addressed, never fully resolved, but also offer the value of a longstanding intellectual engagement. I argue that it becomes necessary to push administrative law thinking further in the direction of democratic theorizing and, more specifically, to resort to a normative notion of the public in administrative terms, which provides a yardstick to address the hard questions of who is/should be empowered (or left out) by the specific regulatory arrangements under scrutiny. A panoramic view of regulatory power in the EU space coupled with a notion of the public gives us the necessary tools to shed new light on the dilemmas of legitimacy and accountability in the EU administrative arena, refining the models proposed by scholars in some cases, suggesting a different path in certain points.
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