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Am I the State ?
The State occupies a central – monopolistic – role in the production of norms of public law. Increasingly, though, a number of non-State actors participate in the making of these norms. This phenomenon is not new in certain areas of public policy. However, its generalisation calls for a detailed analysis. How do the product of this type of participatory norm-making on the one hand, and more classical unilateral norms of public law, on the other, interact? By seeking to facilitate citizens’ participation in public deliberation, does the sovereign State partake in its own demise, to the benefit of other entities, which thus gain legislative and regulatory powers ? The State's monopolistic role in the production of public law is also challenged by the phenomenon of legal pluralism which posits the coexistence of distinct and concurrent legal orders.
The Judiciary vs. the Legislator: Who Governs ?
Since the French Revolution, the principle of the separation of powers has been interpreted so as to grant supremacy to the legislative branch of government, at least in France and in Belgium. This supremacy derives from the legitimacy enjoyed by elected representatives. Today, a crisis in the legitimacy of parliamentary regimes seems to be compensated – or perhaps even generated - by the increased role played by the judiciary. Societies become more “juridicised”: a number of social conflicts are no longer arbitrated by parliaments, but are relegated to the court house. While some disapprove this “government by judges”, others welcome this “proceduralisation” of law. One way or the other, the increased judicial intervention in what are in principle considered to be political matters, raises problems of legitimacy.
Must the State be Efficient ?
Crises of the welfare state have generated a renewed interest in liberal economic theories. In legal studies, this phenomenon has translated into an increased interest in the economic theory of law. From this perspective, the purpose of legal regulation is to facilitate the emergence of a perfect market. The border between private and public spheres becomes thinner. A number of services once considered to be “public” are privatised or “liberalised”. This evolution has consequences for public law. While traditionally, the State was deemed to protect the “general interest” through its unilateral normative power, today legislation is replaced by more amorphous “regulation”. The “general interest” is increasingly considered to be coterminous with the market. Hence our interrogation: is the State the fulcrum of social and economic policy ? Or just another economic actor?