Notes of History of European Public Law (general part), week I
Public Governance and Justice
Late 20th century/early 21 century developments:
If we look at current development. We see that lawyers tend (neiging) to be marginalized in
the political decision-making process (in public governance). Which I mean, when you look
at the stages were major decisions of public governance are made, you can see that more and
more the decision makers will involve people from the social scientist like economists, like
political scientists, and that the reason sort of tendency (tendens) are where lawyers are sort of
not as essential at that stages of the political progress as they used to be.
So, the point is that traditionally professional lawyers played a very central role in public
governance and that central role has been derote in the last few decades. So, social scientists
have an increasing role at the heart of public governance. Social scientists have a different
concept of norms of normativity than lawyers. When lawyers think of normativity, they think
of course of the law. An economist has got other scientific laws in his mind, which are his
normativity’s. And it means that the shift from lawyers to social scientists, is also a shift from
the traditional values and techniques of the lawyer’s normativity to the social scientist
normativity.
When we think of public governance, then we talk about very general terms. Public
governance: we expect it to be efficient and just. So, public governance implies a combination
of efficiency and justice.
- Efficiency is nowadays mostly determined by social sciences So, nowadays it is
more and more sort of seen as the term by the social scientist. When you have for
example a tax policy, you going to ask an economist ‘what’s happens if I change this
tax in such a such a way and what can I expect?’ The lawyers are always cold in,
because the decisions are already made and then we say ‘okay this is our decision, will
you write this down in a Statute?’
- Justice is nowadays a prerogative of the legitimate representatives of the people; So
in other words, if you have a clearly unjust policy you need already a massive police
or military power to keep down those people who will feel the injustice of your policy.
On both counts, efficiency and justice, that used to be preserved of the lawyers. The people
who were rulers or politicians relayed on lawyers to advised them on what would be both
efficiency and just. Lawyers where supposed to be an expertise. But they have lost on both
counts: (1) efficiency like he already said, politicians prefer to rely on the advice of social
scientists and (2) as regard what is a just policy, well in our democratic novel only people
who a democratic mandate (people who are elected) may actually have a legitimate standing
to the side of what is actually just.
What lawyers still have got, and this is one of the unexpected effects of the separation of
power doctrine, is they still have their preserve in the administration of justice, but that is of
course ‘downstream’.
1
,Second Middle Ages
Law faculties usually have two law faculties: you have a Roman law faculty and a canon
law faculty. Roman and canon law was actually the matrix for public governance. Jurists
could make a successful career in public governance, because churches and other public
institutions needed managers who did have expertise.
Early-modern Times
A development that the professor want to highlight is the fact that we have a new concept of
sovereignty. What changes in the early-modern time is that the model of sovereignty changes
from a system of competitive multilayer governance it’s all reduced to a model of exclusive
governance. It means that one person or one institution is going to concentrate.
This phenomena (fenomeen) creates new expertises of public governance which are no longer
monopolized by the established (academic) disciplines. But the classical and Biblical
historical references retain their fundamental place.
Modern times, late 18th century/early 19th century
We see that there is a shift in the system of sovereignty: you’ve got a new model of
sovereignty, going from competitive sovereignty to exclusive sovereignty. What happens in
the political systems is a transfer from the exclusive sovereignty from usually a Monarch or
an institution to the people. The legitimate political order is based on the will of people.
At the same we see an increasing reliance on social sciences for public governance (especially
for ensuring efficiency).
We have since modern times separation of powers, which means that justice in the broad
sense (not just administration justice) that is preserve to the democratically elected
representatives.
Modern Times, 20th century/beginning of the 21th century
Lawyers’ position, well they have usually monopoly in the system of the court, but that is off
course downstream of the political decision-making process.
Human rights in legal practice, progressively a major factor in outlining policies of public
governance. Human rights, you can’t really reduce it to social scientists. So, human rights is
really a field of expertise for lawyers.
Middle Ages & Early-Modern Times
There is a concept of ‘police and justice’.
Police means executive power, and it can also refer to the legislative power. So, everything
which is public governance comes under police and it includes justice. In other words, public
governance includes, what we called, three powers of state but as a united.
Justice has two meanings:
1. Substantial justice, justice as a policy (in government policies and their legislative and
executive implementation);
2. The administration of justice by the courts.
Separation of powers, you also have a separation of these two justice.
2
,Siena, Palazzo pubblico (good public governance)
Siena is a major city state in the middle ages and a powerful city state. They want to show that
Siena is powerful but also good public governance.
What it shows:
- Siena is a town hall where power/public governance has been exercised;
- The picture is showing us what good public governance is;
The actors of good governance are not real persons! They’re stand for symbols, values or
concepts.
1. The major figure, the person who’s dominate the scene of good governance, is the city of
Sienna. The city of Sienna presents itself as a model of good governance (color: green).
2. This major figure is surrounded by three ladies on his left and three ladies of his right and
three kind of angles above him (color: pink). Those nine figures are virtues (deugden), they
are not real persons! It means that in order to be good governance, you’ve got virtues. These
virtues are: peace, fortitude, prudence, faith, charity, hope, marginality, (…) operation and
justice.
3
, 3. If you look to the whole picture and you to the far left, you will see that justice is represent
twice in the painting. It means that allegory of what is good governance is completely framed
by justice: on the left and on the right (color: blue). The whole picture is framed by justice. It
means you cannot talk, you cannot represent public governance at the time, or justice will
play a very essential role.
There are two different types of justice:
- The lady on the right is justice as a virtue justice has a sword (repressive) and a
crown (rewarding).
- The lady on the left is justice as higher principles shows us two forms of justice:
criminal justice (on the left next to the lady) and civil justice (on the right next to the
lady).
The two of them shows us the whole picture of good public governance.
4
