Efficacy, Effectiveness, Efficiency: From Judicial to Managerial Rationality

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Practical legislation and legisprudence strive for reducing the quantity and improving the quality of law. Qualified legislation is legitimized to safeguard public order and to shape the common good. Legitimacy of law flows from four main sources: rationality as a prerequisite of every state action, juridical rationality as conformity with the constitution, economic rationality and review and control of the law. This chapter focusses on economic or managerial rationality: efficacy, effective and efficient legislation. These goals and means of productive state action is, however, embedded in the democratic rule of law state and must obey the directives and limits of the constitution. Finally, it is legal, economic and political rationality which concretizes the common weal. The study comes to the conclusion that constitutional norms, namely their interpretation, as a value order, are important red ropes for targets and instruments of legislation. They are, however, not strictly binding on the legislator in the sense that constitutional judiciary may declare laws as void, if they fail to meet the guidance of rationality, legality, efficacy, effectiveness and efficiency. This finding grants exceptions in case of grossly missing democratic rule-of-law- and human rights-principles and arbitrary regulation. Parliament may and should improve self-control of laws according to these principles. The final “watchdog” is the Constitutional Court. The author observes a juridification of legislation, a sort of a “hybridization” of the representative democratic and juridical rule-of-law-elements of the Constitution. A re-balancing of the first and third power in the constitutional and political arena is needed.