Document Type

Article

Publication Date

2010

Abstract

Most participants in the Symposium on New Governance and the Transformation of Law found the "new governance" phenomenon attractive and important, but as David and Louise Trubek note, they were not entirely comfortable with it.

One anxiety concerned the difficulty of defining the phenomenon and situating it in the universe of familiar political ideas and institutions. The term gets applied to a variety of institutions. To some people, these institutions do not fit snugly into any familiar political categories. To others, they bear a suspicious resemblance to categories that no longer inspire optimism – for example, Romantic communitarianism, corporatism, or "new public management."

The other prominent anxiety concerned the relation of new governance regimes to liberal values of justice and democracy. To some, new governance seems to depend on deferring or compromising such values and, in doing so, to put vulnerable people at risk.

In order to address these anxieties, we have to decide whether the conditions that give rise to them should be counted as evidence against new governance or as defective implementations of it. Do the criticisms imply rejection of new governance in general, or do they favor an improved version of it?

If our goal is to contribute to improved practice, we should adopt the interpretation that makes new governance as good as it can be. I think the most promising interpretation is the Democratic Experimentalist one inspired by John Dewey. Dewey thought of democracy as a process of collaborative discovery, rather than a process controlled by the determinate will of the citizenry. He thought of the citizenry not as a unitary public, but as multiple publics defined by their relations to different problems and held together by an overlapping consensus. He called for government to treat public policies as "experimental in the sense that they will be entertained subject to constant and well-equipped observation of the consequences they entail when acted upon, and subject to ready and flexible revision in the light of observed consequences." In such a polity, the most salient forms of accountability do not involve showing that official conduct conforms to some previously enacted mandate, but demonstration and transparent explanation and assessment of conduct in the light of general public aims.

Most of the new governance anxieties seem to arise from departures from this Deweyan framework rather than instantiations of it. In support of this claim, I will discuss, first, the background conditions of new governance, and then the relation of new governance to both justice and democracy.

Disciplines

Law

Comments

Copyright 2010 by The Board of Regents of the university of Wisconsin System; Reprinted by permission of the Wisconsin Law Review.

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