Governing Without Law or Governing Without Government? New‐ish Governance and the Legitimacy of the EU

Abstract

AbstractThe way the EU is governed and the way such governance is perceived contributes centrally to the legitimacy of the European enterprise. This legitimacy underpins both the acceptance and the effects of EU activity. Legitimacy is a product of the way in which decisions are taken, and the nature and quality of such decisions. Pressures created by concerns about both forms of legitimacy affecting EU decision making partially explain the turn in legal scholarship away from the more traditional preoccupation with the analysis of legislative instruments and case‐law, towards a more broadly based conception of governance which involves the examination of a more diverse range of processes and instruments. This article offers an analysis of the parameters of newness in governance. The overall argument is that some of the more innovative governance modes are not so new, whilst more recent and celebrated modes, although displaying elements of newness, are, perhaps, not that innovative. The focus of the new governance in the EU is largely on governing without law, rather than the more radical governing without government; hence the suggestion that we are experiencing only ‘new‐ish governance’. The article asks whether a limited conception of new governance is inevitable given the legitimacy constraints within which the EU operates, or whether the potential for developing a broader conception of governance, through wider participation and involvement of non‐governmental governing capacities, might bolster legitimacy through both better processes and better outcomes.