The Legitimacy of National Legal Systems: Highlighting Challenges, Assessing Solutions

Abstract

The main concern of this paper is with the legitimacy of national legal systems and in particular with the legitimacy of national lawmaking processes, referred to as national legitimacy. This paper shares the widely held opinion that national legitimacy has come under pressure. It sets out to explain why legitimacy is vitiated by paying attention to the context of the welfare state and European integration. The first part is dedicated to a brief analysis of national and European lawmaking processes. The argument is put forward that executive rule-making that has gained in importance in modern legal systems can pose a threat to the legitimacy of national as well as EU laws, especially where distributive or redistributive effects result from these laws. National legitimacy problems, as it is furthermore argued, can only be adequately captured and made intelligible by taking into account the impact of EU legal processes on national legitimacy. As subsequently demonstrated this can be achieved through bringing into play the concept of input and output legitimacy which is considered as especially conducive to shedding light on legitimacy problems at both national and European levels as well as their interrelatedness. Having identified legitimacy problems, the focus of the paper then shifts to searching for solutions. Although the delegation of rulemaking powers is found to weaken democratic lawmaking processes, the delegation of discretionary powers from the EU to national and sub-national levels of government is seen as one viable option to alleviate national legitimacy deficits. However, as demonstrated in the concluding paragraphs, the jury is still out on whether discretion can really be regarded as a valuable tool for enhancing both legitimacy at the input and output side. One major conclusion is that discretion’s effects on national legitimacy have to be analyzed for each EU member state separately.