The Concepts and Methods of Reasoning of the New Public Law: A New Legislation?

The Concepts and Methods of Reasoning
of the New Public Law

A New Legislation?

Carol Harlow

Emeritus Professor of Law at the London School of Eco­nomics and Political Science

In the context of rulemaking by transnational bodies, this report explores the con­cept of legitimacy in the literature of law and political science. The European Un­ion, the most institutionally developed form of transnational governance, with law­mak­ing structures in place that can be characterised as ‘legislative’, is through­out taken as paradigm. Section 2 discusses the view that legitimacy is largely a ‘new’ con­cept in public law and that lawyers tend to bypass questions of legitimacy with resort to better-known doctrines of sovereignty, primacy, human rights and the rule of law. Section 3 deals with consent, delegation and the ‘output legitimacy’ of effi­ciency and expertise, as the basis for legitimating the activities of transna­tional in­sti­tutions. Section 4 turns to democracy, representative and popular, ar­guably the most potent legitimating device in modern times. Section 5 treats the case of the ju­diciary, responsible for formulating general principle and human rights standards but increasingly operating in a multiplicity of complex and over­lapping jurisdic­tions. The report concludes that the many challenges for legal theo­rists and practi­tioners stemming from the rapid growth of norm-producing interna­tional bodies are more likely to be resolved by the application of ideas of legal plu­ralism than through the concept of legitimacy, central to political science but likely to remain peripheral to law.