THE EVALUATION OF VALUE PLURAL

IMPLEMENTATION PROCESSES1

MAARTEN VAN DEN EYNDE & PETER BURSENS2

LUXEMBOURG 2010 : PANEL 15 : “HOW DO WE KNOW WHAT‟S WORKING” MARCH 2010

Abstract. A specific challenge of the „What is working‟-question is the implementation of value

plural decisions. Value pluralism can be the result of policy ambiguity or policy conflict, both the

result of issues that remained unresolved during the first part of the policy cycle. Is value pluralism

a dead lock or does it create the flexibility to guarantee sufficient levels of governance elasticity?

Governance elasticity will be presented as a theoretical concept that indicates how social systems

anticipate changes in contexts in order to support the legitimacy of the communal bound. This line

of reasoning is applied on the implementation of new frameworks for good governing behaviour.

The case of the European White Paper is an excellent example to explore this research issue.

However, this type of analysis also requires a new methodological approach, which is essentially

qualitative. Therefore, Personal Path reconstruction will be developed.

1 Introduction .................................................................................................................................... 2

2 Monism versus pluralism: Inspiration for a policy research puzzle .......................................................... 2

3 A typology of governance norms ....................................................................................................... 3

3.1 Three orders of governance (Kooiman) ........................................................................................ 4

3.2 The individual and his institution ................................................................................................. 7

3.3 Legality versus Morality ............................................................................................................. 8

4 The evolution of governance ethics .................................................................................................... 9

4.1 A theory of societal changes ....................................................................................................... 9

4.2 The history of societal changes and governing adequacy .............................................................. 11

4.2.1 Classic Liberal Bureaucracy and Welfare bureaucracy .......................................................... 11

4.2.2 The neo-liberal experiment and its loss .............................................................................. 12

4.2.3 The alternative solution: governance ................................................................................. 13

5 The proces of Meta Governance (TOG) oriented policy making ............................................................ 14

6 “European Governance: A White Paper” as example of case study ....................................................... 18

7 Research design ............................................................................................................................ 21

7.1 Research Strategy ................................................................................................................... 21

7.2 Investigating moral judgements: Personal Path Reconstruction ..................................................... 22

8 Conclusion .................................................................................................................................... 24

9 References ................................................................................................................................... 26

1 This Paper is part of an interdisciplinary PhD research project between the Department of Political science and Department of

European Law of the University of Antwerp. The objective is to contribute to the debate on the democratic legitimacy of

supranational governance structures. the European case of the White Paper on European governance will serve as case. The

content of this paper will be transformed into a theoretical and a methodological chapter. 2 Respectively PhD candidate and Professor at the Political Science Department of the University of Antwerp, Belgium

2

1 INTRODUCTION

In an effort to decrease the overload of independent variables that characterised the

implementation literature in the 80ties and 90ties, Matland (1995) suggested a comprehensive

scheme that reduced the variable variation to two dimensions: the degree of policy conflict, and

the degree of policy ambiguity. Both contain competing values which remained unresolved prior to

implementation. Competing values are the object of moral philosophy. This paper aims at

introducing useful concepts of ethics into empirical social research. Using the case of the European

White Paper on Governance, this paper presents the research approach to investigate the

implementation of value plural decisions, and more precisely, how administrators judge morally

between competing values.

This paper starts by introducing useful concepts from ethics. The distinction „monism versus

pluralism‟ will be used to build the research question. Then, a typology of governance norms is

developed. Such a typology is a necessary tool to interpret empirical observations of moral

deliberations. The typology is inspired by Kooiman‟s theory of governance orders, the position of

the individual in his institution and the difference between morality and legality. The fourth

paragraph presents a theory of societal changes. In order to preserve the communal bound,

changing societal conditions leads to modified governance norms. When this theory is applied to

the recent history of governing in Western societies, we see that governance is essentially an

attempt to create a more flexible governing environment than government used to be. This

flexibility easily leads to new pluralistic governance norms. These new norms are developed via a

policy process, an idea that is defended in the fifth paragraph. The sixth paragraph brings these

theoretical ideas into the empirical setting of European governance programmes. In the last

paragraph, we present a specific methodological approach, Personal Path Reconstruction, which

gives access to the empirical field of moral deliberation.

2 MONISM VERSUS PLURALISM: INSPIRATION FOR A POLICY RESEARCH PUZZLE

Our puzzle and approach are indubitably inspired by the study of governance ethics, a particular

branch of moral philosophy. One of the most fundamental distinctions in ethics is that between

ethical systems that are monistic versus ethical systems that are value pluralistic. This issue is

closely linked to the practical applicability of ethics, and more precisely the act of moral judgement.

This paragraph will conclude that moral judgement in a monistic setting differs fundamentantally

from moral judgement in plural contexts.

Ethical monism is characterised by one norm which acts as ultimate reference. This does not

preclude ethical dilemmas. Monistic theorists argue that in case of dilemma, the different options

are commensurable or comparable because all options share a common standard. Some

philosophers, like Socrates, draw the conclusion that real moral conflicts are impossible in monistic

settings. The semblance of value conflict is attributable to a lack of knowledge to make good

decisions. Examples are utilitarianism (with utility as highest norm) (Kymlicka, 2002),3 Aristotelian

3 Monism applies on the original versions of utilitarianism from Bentham (welfare hedonism). Other forms, like „informed

preference utilitarianism‟ are examples of value pluralism, because there are many kind of informed preferences, with no

obvious way to aggregate them. These preferences are also „incommensurable‟ (Kymlicka, 2002, pp. 13-17).

3

ethics (Eudemonia), and Kantian ethics (obligation) (Raymaekers, 2007). Given this definition,

value pluralists argue for a plurality of norms that are not commensurable, thus there is missing a

common standard to conclude on moral issues. Value pluralism distinguishes oneself by taking

feelings as remorse, guilty conscience and shame (Nieuwenburg, 2001).

Moral judgement is the mental act of validating or invalidating given or proposed moral rules and

those decisions made on the basis of them (Rawls, 1951). Moral psychologists discovered that

moral judgement consists of moral deliberation and moral intuition, although discussion is ongoing

how these types of mental activity can be ascribed to particular neural zones in the brains

(Harenski, Antonenko, Shane, & Kiehl, 2010). A value monistic policy environment reduces value

conflict to a matter of sufficient information and intelligence (Nieuwenburg, 2001), two necessary

conditions for proper judgement in order to comply with the overpowering value. A value pluralistic

environment increases political involvement of those who have to apply these norms (thus, those

who are responsible for the implementation of this group of incommensurable values). To be more

concrete, let‟s apply this briefly to Western public administration.4 Administration used to be

politically steered through democratic institutions, which functioned in such a manner so as to

make the questioning of the relationship between ethics and administration unnecessary (Larsen,

2000). Thus, Weberian administrators were not required to judge morally. This changed

dramatically with the shift to governance. Administrators are today effectively taking political

decision in a larger political framework that is shaped by their political superiors (Van den Eynde &

Goorden, 2006).

A set of principles, be it in a monistic or pluralistic context, is called a normative referential

framework (NRF). In a monistic setting, NRF is hierarchical, with one norm that delivers the

currency to measure the virtue of norms in case of conflict. In a pluralistic setting, the NRF is

essentially heterarchical, understood as a polycentric set of values with different currencies.5 The

referential element indicates that the framework is used as beaken for normative reflection, i.e.

answering the question: “What is the right thing to do?”

3 A TYPOLOGY OF GOVERNANCE NORMS

The distinction between monistic and pluralistic normative referential framework does not inform us

on the nature of the values that constitute such framework. Applying it to policy and politics, it

becomes obvious that the one value is not similar to the other. For instance, financial integrity for

an individual administrator plays at a different level than a norm that stipulates all governmental

information that is not related to security issues should be disclosed to the public. Once we are

observing moral judgements in empirical research, we need an analytical framework for

governance norms. In this paragraph, I introduce a typology of public governance norms. A proper

starting point for such a frame work is Kooiman‟s governance theory. Thereafter, I add additional

differentiations draw from the literature. Such a typology offers a crucial vocabulary and a set of

concepts necessary if one wishes to investigate moral deliberation on governance norms.

4 This line of reasoning will be elaborated in paragraph 5. 5 Taking the metaphor to a next level, moral deliberation would be equal to the currency markets, although here the

comparison loses its preciseness.

4

3.1 THREE ORDERS OF GOVERNANCE (KOOIMAN)

In his theoretical work on governance, Kooiman (2003) distinguishes between three orders of

governance (or socio-political interaction): First Order Governance (FOG), Second Order

Governance (SOG) and Third Order Governance or Meta Governance (TOG).

FOG The fundamental raison d‟être of governance is dealing with problems and creating new

opportunities. In Western societies, the intention of social-political interactions is to increase

welfare, guarantee happiness or organise a fair distribution of wealth. The proportion of these

intentions differs according to political ideology. Derived from this, governance systems are entitled

to deal with problems that endanger welfare, happiness or the fair distribution of these assets.

They are also entitled to create new opportunities –say, to trigger the process of the creation of

welfare, happiness and fair distribution. Activities in the public sphere to anticipate on detected

problems (solutions) or on useful opportunities (strategies) (p. 154) fall under the concept of “First

Order Governance” (FOG).

SOG First Order Governance interactions are embedded in institutional settings. Second Order

Governance (SOG) is the care for and maintenance of these institutions. Attention is focussed on

the structural aspects of governing interactions. SOG is focussed on systems of interactions, and

not single social-political interactions as FOG is. SOG is the balancing act of governance needs and

governance capacities by creating a structure that accommodates FOG. Kooiman refuses to adopt

one definition from the four strands of literature on institutions. He argues that “It would be hard

to imagine that one institutional theory would suffice for understanding of or coping with such a

broad scale of institutionalising governing interactions. (…) The variety of institutional theories is

rather an asset than a hindrance to the understanding of governance institutions in a diverse,

complex and dynamic world to be governed (p. 156).” Kooiman describes institutions as thickened

forms of human behaviour. SOG in a complex, diverse and dynamic environment means the use of

mixes of interactions (interventions, interplays, and interferences).

TOG Third Order Governance is the meta-perspective on FOG and SOG, and is also called Meta

Governance. The starting point is the imaginary meta-governor wanting to formulate a set of

norms or criteria to judge governance with. Human beings constantly modify the societal context

they are living in. Thus, “human systems are ultimately self designing” (ibid. p. 171). The essence

of TOG is to govern this change and to design processes from a normative point of view. From this

point, my conception of TOG differs from that of Kooiman. Kooiman shifts suddenly from a

descriptive and analytical register to a normative one. He places FOG under meta scrutiny of

rationality,6 and SOG under meta scrutiny of responsiveness.7 Meta governance itself will be

reviewed by performance.8 In fact, he develops of normative frame work to evaluate the three

orders of governance. But this is useless for me. My aim is to investigate the normative frame work

of governors, thus to investigate the Meta governance (TOG) in empirical settings. What I need is a

typology of Meta governance norms. I will soon come back to this when I present FOG-oriented

Meta governance norms and SOG-oriented Meta governance norms.

6 “Governing elements can normatively best be evaluated by principles of rationality: how rational they are, how rational they

can be, what their contributions to governing should be (p.174)” 7 “Now a criteria must be developed with which these three modes [MVDE: self-, co- and hierarchical governance] can be

evaluated each of them apart and as a cluster. (…) Governing elements can normatively best be evaluated by principles of

responsiveness: how responsive they can be, and what their contribution to governing should be (p. 177).” 8 “Governance orders can normatively best be evaluated by performance principles: how they perform, how they might perform

and what their contributions to governing should be (p. 183).”

5

Besides their definition, it is important to know how these orders of governance relate to each

other. If SOG or FOG are impossible without the existence of TOG, than empirical work should not

exclude TOG from its observations. The existence of the former is the evidence for the existence of

the latter. Kooiman says about their relationship:

“However, there is also a binding element between them: together they form the core of what

governance is about, and they can‟t function without each other. Concrete problems cannot be solved

if institutions lack the capacity to generalise them into governance needs. And second order

governance cannot play its linking pin role, if normative principles detailing the balance between

governing needs and capacities are not made explicit (…) (p.182).

I only partly agree with this. It is not because A is a necessary condition for B that B is as a

consequence a necessary condition for A.9 This is the case with the three governance orders. I

define their relationship as hierarchical. The ground of all governance activities is a set of

normative rules that are oriented to the intention of the act (FOG) and to the structure of the act

(SOG). This set of normative rules is the normative referential framework. TOG is a necessary

condition for FOG and SOG since morality is an intrinsic part of communal life (Gert, 1998).10 The

initiative to governance (be it FOG or SOG) contains already a moral layer because every decision

to act is a choice, based on norms, either implicit or explicit. This normative layer projects

individual expectations in the public sphere of socio-political interactions. Meta-Governance norms

are the foundation for problem solving, opportunity generation and institutional organisation. I

distinguish between two types: Meta-governance norms that are directed to FOG (intentions), and

Meta-governance norms that are directed to SOG (structures).

Figure 1. Hierarchical relations between Governance Orders

FOG-oriented Meta-governance norms FOG-oriented Meta-governance norms guide choices

with regard to intentional problem-solving or opportunity taking. A policy maker (embedded in

social institutions, which is why FOG is above SOG) detects a problem, for instance a major bank

that encounters solvability problems. The policy maker has to take a decision, and the direction of

this decision is guided by FOG-oriented Meta-governance norms. The nature of this direction is the

9 As Kooiman suggests with “(…) they can‟t function without each other.” 10 “[M]orality is best conceived as a guide to behavior that rational persons put forward to govern the behaviour of others,

whether or not they plan to follow that guide themselves.” And : “Hobbes is one of the few philosophers who realized that the

moral virtues are praised because of the calamities everyone avoids if people act morally.” (Gert, p.1)

FOG

SOG

-FOG-ORIENTED META-GOVERNANCE/TOG -SOG-ORIENTED META-GOVERNANCE/TOG

6

subject of ongoing debates in political philosophy, with the core question: what is a virtuous

state/polity (Haworth, 2004)?

By acknowledging the fact that many different life plans exist it addresses the vital issue of how people

should live together in a respectful way. The most important question is how to organize a just state

that promotes the well-being or human flourishing of its citizens. But how can a state promote many

diverse life plans without, at the same time, discriminating between these plans? (Gordon & Kohnen,

2009, p. 1)

The answer to this question is the subject of ongoing debates in political philosophy. Utilitarianism

presents the experience of pleasure11 as the chief human good (Bentham). Theories of liberal

equality try to define a theory of fair shares prior to the calculation of utility. For Rawls (1971, p.

303), a general conception of justice defines that all social primary goods are to be distributed

equally unless an unequal distribution of any or all these goods is to the advantage of the least

favored. He treats people as equal not by removing all equalities, but only those which

disadvantage someone (Kymlicka, 2002, p. 55). The first virtue of social institutions is justice

(Rawls, 1971, p. 3) Libertarian believe that the free market is inherently just since unrestricted

capitalism increases productivity and thus social wealth. Nozick (1974) argues that if we assume

that everyone is entitled to the goods they currently posses, then a just distribution is whatever

distribution results from people‟s free exchanges. Contemporary Marxism has become a normative

political theory rejects or questions the very idea of justice (Cohen, 1988). Communitarianism

argues that liberalism misportrays the relationship between individual and community in certain

crucial respects (Haworth, 2004, p. 261).12 Taking the financial crisis as an example, the FOG-

choices made by governors are choices based on their explicit or implicit political philosophy. The

reaction of Western governments was to protect the „small‟ savers, but also for the protection of

the small chair holders, by spending capital of the tax revenue in supporting the Banks, without

ensuring proper bank behaviour after the crisis. The normative discussion arises at this point, with

arguments that the capitalist system is loosing its credentials by these governance choices

(Degrauwe, 2010). FOG decision making is inspired by political values (Hood, 1991).

SOG-oriented Meta-governance norms SOG-oriented Meta-governance norms are the focal

point of my research. The decision how to organise decision making has also a long history of

discussion in many disciplines, like political theory as one of the oldest. The history of political

philosophy shows a long list of thinkers proposing their ideal types of governing13 resulting in the

contemporary dominant ideal of the representative liberal democracy. Given the changes in

modern liberal democratic nation states, discussions on SOG becomes sensitive issues14, with

questions like how should post-modernistic societies be organised in order to meet the FOG-

objectives? Does indirect representation remain effective? There is for instance a strong tendency

towards more public participation in policy making. The Flemish program on Better Governance

Policy (Beter Bestuurlijk beleid,) stipulates as one of its principles the use of participatory policy

11 Later modified in theories of preference satisfaction, non-hedonistic mental-state utility and informed preferences (Kymlicka,

2002). 12 I have not the ambition to investigate FOG oriented Meta-governance norms in this dissertation although its reasoning will

come across from time to time. 13 This are not Weberian Ideal-types, which does not have a normative program 14 At the international level with regard to jurisdiction of international courts, like the ICJ, the Jerodia Case; the extending

jurisdiction and its implications for democratic legitimacy of regional courts, like the European Courts of Justice, and in line with

this argument, the role of supranational institutions; at the national level the federalization of nations, like the Belgian state

reforms.

7

approaches.15 Hood (1991) called this administrative values. These meta-governance norms are

the focal point of our research.

In a nutshell: FOG is the objective of communal life, where SOG and TOG are the means to this

end. But FOG cannot exist isolated from SOG and TOG since men behave inherently morally (by

choosing possibility A from B) and social interactions occur always through some kind of

institutions, and thus structures. The same reasoning applies to SOG in relation to TOG. What

remains unresolved hitherto is the question whether TOG can exist without FOG or SOG? I think it

can, and I take my argument from simple observations in real life policy environments where

intentions for good behaviour are formulated without taking these ethical standards into practice.

This idea contains the difference between output and outcome in policy sciences (Van Dooren,

2006).

This hierarchical conceptualisation of governance modes reveals the idea of the travelling of norms

along a policy process, an idea to which I return in paragraph five.

3.2 THE INDIVIDUAL AND HIS INSTITUTION

This far, I distinguished between two types of governance norms: governance norms guiding

intentional behaviour (FOG), and governance norms guiding structural behaviour (SOG). I will

further differentiate these categories.

A first distinction draws on the twin themes of organizational setting and individual administrator

(Denhardt, 1988). This conceptualisation is also in line with Wieland (2001, p. 73) who

distinguishes between “moral values of an individual person (value ethics), the values of an

individual person in a given function or role (management ethics), and the moral values of an

organization (governance ethics).” However, this typology remains imprecise. Therefore, I present

an alternative.

I consider this as the difference between the individual opposed to the institution versus the

individual as part of the institution. The individual in this research is a civil servant. The civil

servant opposed to the institution is forced to weigh a dilemma between personal interest and

institutional loyalty. As scheduled in the table below, this type of dilemma can enter both the FOG-

sphere and the SOG-sphere. Personal moral conflicts on the FOG-level are induced by ideological

differences. E.g. a civil servant in the asylum service might have problems with political choices of

his/her superior. Personal moral conflicts on the SOG-level are induced by opportunities to abuse

procedures to benefit oneself. This is about deontology understood as good personal behaviour

within the institution.16 This kind of normative evaluation is the subject of integrity research

(Anechiarico & Jacobs, 1996; Dobel, 1999; Head & Brown, 2008; Huberts & Maesschalck, 2008;

Menzel, 2007). Examples of norms are: Civil servants shall not print private documents at work;

Civil servants shall not give preferential treatment to relatives; Civil servants shall obey the rule of

law17; …

15 http://www2.vlaanderen.be/bbb/krachtlijnen/index.htm See below “Het brede veranderingerstraject Beter Bestuurlijk beleid” 16 Deontology in this context should not be confused with the notion of deontology in ethics, with teleologic as its counterpart.

In this stage, deontology is used as a code of conduct. However, it is clear that this practical application is rooted in the original

Greec meaning of the word. 17 This is what Larsen (2000) misjudges when he sketches the dilemma of a Danish civil servant caught between loyalty

towards his superior versus obedience of the law. Larsen qualifies this as a moral dilemma of deontology. If it‟s a dilemma of

deontology, it entails an appraisal of a self interest (keeping the job by remain loyal) versus obedience to the law. My argument

8

Secondly, the civil servant as part of the institution behaves in a proper way if he/she acts in the

FOG-sphere according to the strategic choices of problem solving and creation of new

opportunities. The administrator is part of the whole and is obliged to meet the strategic goals of

the institution. The civil servant as part of the institution in the SOG-sphere behaves properly if the

procedures are respected. This category of norms is the object of this research project.18

This differentiation leads to a 2x2 matrix that serves as the analytical framework throughout this

project in order to appreciate formulated norms and object of moral justification19 of interviewees.

GOOD INDIVIDUAL

BEHAVIOUR GOOD INSTITUTIONAL

BEHAVIOUR

FOG-ORIENTED TOG (INTENTION)

IDEOLOGICAL CONSEQUENT

BEHAVIOUR

STRATEGIC CONSEQUENT

BEHAVIOUR

SOG-ORIENTED TOG (STRUCTURE)

DEONTOLOGICAL BEHAVIOUR GOOD GOVERNANCE

BEHAVIOUR

Figure 2. Categories of governance norms

3.3 LEGALITY VERSUS MORALITY

Kant starts his ethical theory by assuming that only is good will is absolutely virtuous. A virtuous

life cannot be found on the level of the functional (technical, strategically, pragmatically)

usefulness of acting, neither at the level of agreement and compliance with tradition or legal

norms. In all these cases is the good determined by preconditions or circumstances. Ethics should

therefore concentrate on the intentions of the subject (and not the objects), i.e. the analysis the

intention of the absolute value of the good will. A good will acts from a kind of plight. Kant

differentiated between plight as „Pflichtmassig‟ and plight as „nicht aus Neigung, sondern aus

Pflicht‟. This generates the distinction between morality and legality. Acting on the basis of the law

is acting from an obligation outside the will. This is legality. Acting morally is acting from an

obligation inherent to the will (Raymaekers, 2007).

An alternative conception that suggests a difference between law and morality is based on the

conceptualisation of „informal public systems‟ as morality. Gert (1998, p. 11) uses public systems

to refer to „a guide to conduct that has the following features (…)[:] that is, (1) everyone who is

subject to moral judgement must know what kind of behaviour morality prohibits, requires,

discourages, encourages, and allows, and (2) it is not irrational for any of them to use morality as

a guide for their own conduct.‟ Then he distinguishes between formal and informal public systems:

Formal public systems are those in which there is a decision procedure, usually involving authorities

such as judges, umpires, or referees, that resolves all questions of interpretation of the rules of the

system as well as all the disagreements between those to whom the system applies. Informal public

systems presuppose overwhelming agreement about their interpretation and cannot function unless

is that it should not be appraised as a moral dilemma since loyalty to the principle of the rule of law is a condition for all derived

relationships in public life. 18 It is remarkable to compare the proposed core administrative values of the White Paper on Governance with the initial

legitimization of the Prodi‟s initiative to improve the functioning of European institutions (see above). Besides the problems with

popular support (the democratic deficit and the lack of legitimacy), the dossier of corruption that hit the Santer Commission

was another major reason. The 5 + 2 principles do not contain any reference to the value category of deontology as presented

here. 19 By „objects of justification‟ is meant the reference that provides legitimacy to an act of moral deliberation. Civil servant John

chooses option A from B given the supreme value of a moral reference X (application of Raymaekers, 2007 who explains Kants

moral philosophy)

9

disagreements are relatively rare. When it becomes important that all disagreements be settled, public

systems tend to become formalised. (Gert, 1998, p. 11)

This difference is important for the discussion on the role of legal principles that are linked with

moral principles. In the White Paper on European Governance, the Commission adds two principles

to five clear-cut Good Governance Behaviour-principles, i.e. the principle of subsidiarity and the

principle of proportionality (Art. 5 TEU). This gives the impression that both principles have the

same nature as the five governance norms, but this is not the case. The subsidiarity principle is at

the core of the legal structure of the TEU. The essence of the principle is the allocation of powers.

An inter-institutional agreement on the application of article 5 was formalised in a protocol

attached to the TEU in 1992. As a result, the Protocol conferred binding character on both

principles (Kaczorowska, 2009, p. 97). As a result, the Commission has to justify the proposed

legislation in the light of the subsidiarity principle in the preamble to any legislation where the

Commission does not have exclusive competence. Legal disputes can arise before the ECJ in two

types of actions.20 As a result, a Commissioner who is responsible for developing a directive in

policy field Y, is not expected to violate this legal principle in favour of a moral principle without the

legal power of legal principles. It is crucial to take this distinction into account while analysing the

justification of moral decisions.

4 THE EVOLUTION OF GOVERNANCE ETHICS

Hitherto, we introduced the concepts of monism and pluralism in governance ethics (paragraph 2)

and we introduced an analytical framework useful for a viable classification of governance norms

(paragraph 3). A nest step is to present a theory of societal changes that affects governance

settings, and thus governance norms. Part of this theory is our innovative concept of governance

elasticity. This theory is applied to the recent history of public administration. As we will show,21

this history is framed throughout our analysis as a shift from monistic towards pluralistic normative

referential framework for governance.

4.1 A THEORY OF SOCIETAL CHANGES

Starting point is a given societal context. It entails both material (e.g. natural resources,

geography) and immaterial (traditions, anthropological characteristics) elements. Human beings

are generally social beings, so they align into communities. Living together in the public sphere is

organised by political institutions. We assume that the communal bound preserves its vitality as

long as it establishes communal legitimacy (CL). Communal legitimacy is funded on the agreement

of a social belonging. It is more than the social contract, which is limited to the structural

dimensions. A political revolution is a disruption of structure (shift from dictatorship to popular

democracy) or intention (the shift from left wing politics to right wing politics) in order to prevail

the legitimacy of the community. Intention and structure constitute the political institutions

(Kooiman, 2003). Intension refers to elements as regard to content.22 Structure refers to the

means necessary to realise intentions.23 The choices are guided by prevailing norms, values and

ideologies coming together in a Normative Referential Framework. This theoretical reasoning is

20 Article 234 EC and Article 230 EC 21 and already mentioned shortly in paragraph 2 22 E.G.: Shall we send more soldiers to Afghanistan? 23 See the fourth paragraph for the detailed argument.

10

reproduced graphically in figure 1 and 2. Figure 1 shows a static version in t0 instead of figure 2

which take time (thus evolution) into consideration by adding a t1-perspective.24

When societal context modifies, governing institutions need to be adapted in order to secure the

legitimacy of the community. If governing institutions remain static (in t0) it is expected that the

shared sense of belonging erodes. An example from the social welfare state, on the structural level,

GDP rises by exploitation of new natural resources. This inspires workers to ask to change the

proportional tax system in a progressive one. If this request is strong and governors reject it,

communal legitimacy decreases since the normative behaviour of the state (as structured public

community) violates a new norm which is experienced as fundamental to the redefined community.

As a consequence of this reasoning, efforts to reform governance institutions in order to comply

with societal changes need normative steering. Thus normative referential frameworks also need to

be rethought. Thus, assuming the preference of stable communal legitimacy (CL), changes in

societal context (SC) must be attended by changes in governing institutions (GI). New governance

norms are the tools to guide the modifications of GI.

Δ (CL) = 0 Δ (SC) = Δ (GI)

The covariation between Δ (GI) and Δ (SC) is governance elasticity. This concept is inspired by

micro-economics and the concept of price elasticity. Price elasticity informs markets on the relation

between a change in quantity (supply or demand) and the corresponding change in price. Neither

of them is the independent variable of the other. They only covariate. Price elasticity is a useful

concept in micro economics since it informs the seller whether it is fruitful to modify prices. A

decrease of prices is profitable only if demand increases at least proportional. An increase of prices

is profitable if demand of prices does not fall back too much (Berlage & Decoster, 2000, pp. 76-

24 Because of the practical limitation of data gathering, I only can assume that a similar process occurred in the transition from

medieval society to modern society. Such an argument shows that normative and especially public organization adjustements

takes time. The fact that Belgian women, to give only one example, only received voting rights in 1948, is indicative.

SOCIETAL CONTEXT

(SC)

GOVERNING INSTITUTIONS (GI)

-INTENTIONS -STRUCTURE

COMMUNAL LEGITIMACY (CL)

NORMATIVE REFERENTIAL FRAMEWORK (NRF)

-NORMS

-VALUES -IDEOLOGY

TIME OBJECT OF STEERING SUBJECT OF STEERING

EMPIRICAL SPHERE NORMATIVE SPHERE

T0 SOCIETAL CONTEXT => GOVERNING INSTITUTIONS <= NORMATIVE REFERENTIAL FRAMEWORK 1

GOVERNMENT -> COMMUNAL LEGITIMACY ↓ ↓ ↓

T1 SOCIETAL CONTEXT => GOVERNING INSTITUTIONS <= NORMATIVE REFERENTIAL FRAMEWORK 2 CHANGED GOVERNANCE -> COMMUNCAL LEGITIMACY

Figure 3. Static model of Societal Change Theory

Figure 4. Dynamic model of Societal Change Theory (Time factor included)

11

79). The same applies to changes in societal context and governance institutions. Governance

elasticity is a measure of the flexibility of governance systems to adapt to societal changes.25

Starting from an historical point of view, this theorem will help to understand the actual status of

post-modernistic governance. The following paragraphs apply these notions to the historical

evolution of administrative governing.

4.2 THE HISTORY OF SOCIETAL CHANGES AND GOVERNING RESPONSIVENESS

An historical analysis of changes in societal context and governance institutions reveals four ideal-

typical modes of governing. They are the outcome of the combination of two dimensions. The

former holds the strength of the state,26 the latter holds the capacity to be effective. Easton

described this as:

Every political system must have some finite capacity with respect to the number of demands it can

accept for processing into decisions or consider as possible basis of choice. It will only have some finite

amount of time available to devote to settling differences politically […] what me may designate as

demand input overload could be said to describe a system if, within a specified time interval, the

number of demands exceeded an empirically determinable limit (Easton, 1965).

These ideal-types cover roughly the last 200 years of public administration history. Choosing the

term „post-modernistic‟ might knit one‟s brows since „post-moder(…)‟ is the subject of unresolved

intellectual debates. However, my starting point is the era of modernism as the age of rationality,

individuality, self-determination, etc. A system (administration) based on this principles is modern-

like or modernistic. Its opposite is the system after this era, thus post-modernistic. I agree that

this is not the perfect term. It is similar to defining war as the absence of peace. Some authors use

for this era the term „post-industrial‟. But this choice is worse. The qualities of post-modernistic

administration also apply to societies which are not yet entered the industrial era. Countries

receiving funding from the World Bank are (more or less) subjected to a set of governance norms27

but are in no way industrialised. Post-modernistic administration is not the perfect term, but it is

the best at the moment available.

CAPACITY

CAPABLE (MODERNISTIC ADMINISTRATION) INCAPABLE (POST-MODERNISTIC ADMINISTRATION)

NATURE WEAK STATE CLASSIC LIBERAL ADMINISTRATION NEO-LIBERALISM (REAGONOMICS, THATCHERISM)

STRONG STATE WELFARE BUREAUCRACY (WEBER) GOVERNANCE

Figure 5. Typology of history of Western public administration

4.2.1 CLASSIC LIBERAL BUREAUCRACY AND WELFARE BUREAUCRACY

Modernity ended the acquisition of legitimacy from a divine source. Rationality en Enlightenment

inspired communities to exploit the natural environment to develop human capabilities

(industrialisation). The Treaty of West-Phalia created the nation state in an international

environment (Van Middelaar, 2009). Governing turned into centralistic model of government with a

top down approach. It had a profound influence on public administration ideology for a long time.

The initial ego-oriented interpretation of liberalism evolved slowly to social liberalism, which was

already formulated by Mills (Schumaker, 2008, pp. 61-62).28 Indirect representation of all citizens

25 See Van den Eynde (2010) for a more detailed explanation of this theoretical concept. 26 Strength of the state is defined as the relative share of the state in public life 27 See below for more details 28 Mills suggested in Principles of Political Economy that goods should be produced and exchanged according to capitalist

principles, but that governments could play a role in (re)distributing these goods in a more equal manner. Schumaker

(Schumaker, 2008, p. 57) argues that “(…) it was not until the twentieth century, however, that reform liberalism emerged as a

coherent public philosophy.”

12

increased its democratic potential (Raymaekers, 2007). Classic liberal administration was modest

compared with the bureaucracy as we know it today and is not of considerable importance now. In

line with democratisation, demand for and supply of public services increased, resulting in the

establishment of bureaucracies. The „Old Time Religion‟ of traditional public administration is

summarized by Peters (1996) by six „old chestnut‟ that guided our thinking about the public

services. These principles are an apolitical civil service; Hierarchical organisation with a clear rule

structure (Weberian); permanence and stability; an institutionalized civil service; internal

regulation; equality. Classic liberal bureaucracy differs from modern bureaucracy with regard the

vision on the nature of the state. The difference was augmented by the switch from classic laissez-

faire, laissez passer to the demand-oriented economic politics of Keynesianism. This increased the

influence of public administration. In modern welfare societies, nearly all social life passes through

public administration (Larsen, 2000). This modern system of administration “persisted for decades

and on the whole was extremely successful. It fought several world wars, produced and

administered a massive expansion of social programs, instituted large-scale economic management

for the public sector, and initiated a host of remarquable policies (G. B. Peters, 1996).”

4.2.2 THE NEO-LIBERAL EXPERIMENT AND ITS LOSS

But then, Western societies entered an era of profound changes, summarised by Kooiman (2003)

as increased complexity, diversity and dynamics. The scale of industrialisation, for instance, with

its outputs29 and externalities30, demographic changes, the financial crisis and the already

established success of the social welfare state put the modernistic governing system (government)

under pressure. In order to preserve communal legitimacy, the demand for new modes of

government rose. Societies have become increasingly diverse, complex and dynamic (Kooiman,

2003). Diversity is defined as “Qualitative differences of interacting societal entities (ibid. p.232).”

And he argues: “The more diverse the qualities to be governed, the more diverse the necessary

governing measures, and the more diverse the relation between the two (p.194)” This diversity

triggers alternative forms of governance, other than modern government. Governance means,

according to Kooiman, “making systematic use of the richness of societal diversity, (re)order it, and

define its boundaries in iterative governing interactions (p.196).” Government as in the modern era

was unable to value this diversity. Complexity is defined as “multitude of often overlapping

interactions (ibid. p.232).” And: “The basic notion is about manifold interactions of many parts

within a system (…) (p.197).” Kooiman links societal preference for specialisation and

differentiation to the great progress in knowledge of parts. The historical evolution from modern to

post-industrial societies falsifies partial knowledge as sufficient condition for adequate policy

making. Post-industrial complexity requires holistic knowledge. This consciousness urged post-

industrial societies, for instance, to involve new actors with additional knowledge in the process

and to install new procedures in which a variety of viewpoint can be consulted. Dynamics is defined

as “tensions within and between interactions (ibid. p.232).” I interpret this as velocity of societal

interactions. Post-industrial societies are much more dynamic, so, the degree to which these

societies are able to adequately govern issues [both problems as opportunity structures (Kooiman,

2000)] defines the relation between dynamics and governability. This reasoning is elaborated to

the two preceding elements, complexity and diversity by asking in what way we might expect

aspects of governance to cope with governance issues, and by doing so enhance governability

(Kooiman, 2003, p.203).

29 Improvement of communication technology, the improvement of traveling conditions. 30 The effect of industrial environmental pollution on health (e.g. asbestos)

13

The increased complexity, diversity and dynamics demanded a specially adapted way of steering.

The monopoly of the central state proved to be impotent to govern effectively. Two strands of

reaction arose. The first is the neo-liberal experiment, the second the governance experiment. The

former says that the role and nature of the state should be reduced. This led to a shift from a

hierarchical bureaucracy towards a greater use of markets, quasi-markets and networks (Bevir,

2009). These reforms developed first along the weak/strong state dichotomy. Neo-liberals

defended a weak state ideal. Steering, defined as the activity of making policy decisions, was

opposed to rowing, which was defined as delivering public services. According to neo-liberals,

government activity should be restricted to steering (Kooiman, 1993). Together with this „strong-

to-weak-state‟-shift, the political sphere became increasingly impotent to anticipate increased

complexity, diversity and dynamics. From this, neo-liberals concluded the bankrupt of top-down

bureaucracy as a monopolistic tool for rowing and proposed the replacement of bureaucracy with

an entrepreneurial government (Osborn & Gaebler, 1992) with an increased importance for market

mechanisms. This ideology was brought in practice, for instance in the USA (Reagonomics) and the

UK (Thatcherism) (G. Peters & Pierre, 2006, p. 35). This Neoliberalism entered the public

administration through the New Public Management (NPM). NPM was provoked by the oil crisis in

the seventies and the subsequent economic recession which made a cut in public expenditure

indispensible in order to remain economically competitive in an emerging global economy (Savoie,

1995). Neo-liberal Public Choice Theory argued in line with NPM that the economic problems of the

seventies were caused by advocacy groups whose objective was to maximise their own profits from

redistributive policies (Van Der Wee & Houtman-Desmedt, 1992). Therefore the influence and role

of these civil society groups should be reduced whether through marketization (privatization and

contracting out) or corporate management (Bevir, 2009).

4.2.3 THE ALTERNATIVE SOLUTION: GOVERNANCE

The second strand of reaction against the monopoly of central state decision making was also a

reaction against Neo-liberal ideology and praxis. Neo-liberal reforms fragmented service delivery

and weakened central control without establishing real markets. Hence, the reforms had led to a

proliferation of policy networks (Bevir, 2009) in stead of diminishing them (G. Peters, 2000). Neo-

liberalism failed to solve problems involved with post-modernistic communities. The „overload

literature‟ described how:

“(…) government became unable to respond to all demands and expectations placed on it by the

public, organized interests, or other actors in the external environment of the state. Such an „overload‟

of functions undermines the legitimacy of the government since government fails to respond to

demands placed upon it. “(…) „overloaded government‟ is the result of societal demands exceeding the

problem-solving capacity of government.”(G. Peters & Pierre, 2006)

The solution to this problem was to turn the role of demanders in suppliers. The power of the

steering capacity over public life was enforced, but spread over multiple actors, both governmental

as non-governmental, and in varying constellations. This resulted in a broad range of governing

modes.31 The distribution of power occurred along a vertical and a horizontal axis. Power became

distributed in multiple processes after World War II. International cooperation, e.g. on trade (GATT

and WTO), criminal prosecution (International Court of Justice), sustainable development

(Partnership-arrangements after United Nations WSSD-summit) eroded the self-determination of

nation states. Especially the process of European Integration was a challenge to the central nation

31 Piattoni (2009): “[T]he essence of MLG reflection necessarily pointed in the direction of a confusion (con-fusion) of

established processes and hierarchies and the mergence of new configurations of powers and competencies.” (p.167)

14

state, although the debate remains unsettled (Follesdal & Hix, 2006; Hix, Noury, & Roland, 2006;

Moravcsik, 2002). The concept of Multi-Level Governance was initially developed by Marks (1992).

He argued against contentions of liberal inter-governmentalism that the state could keep the

centre-periphery gates and keep the state-society gates (Piattoni, 2009). The centre-periphery

contention was countered by arguments from the literature on regional mobilisation and sub-state

nationalism. This line of reasoning was produced by the „hollowing out‟ or „unravelling of the state‟

(Hooghe & Marks, 2003)-literature and reflects the vertical stratification of power. The state-

society contention was criticized with arguments from the network literature (Kohler-Koch &

Rittberger, 2006; Rhodes, 1996). The newly created relations between public and private actors

located at different governmental levels took different forms in different national contexts. This is

the horizontal stratification of power.32

Besides the vertical and horizontal dimensions of governance, Kooiman (Kooiman, 2000, 2003,

1993) distinguishes between three qualities of interactions: self-governance (interplays), co-

governance (interferences) and hierarchical governance (interventions). Although his work is

rooted in (national) public administration research, this qualities returns more or less in the work of

European Integration scholars, like Wallace (2003),33 (Bekkers & Edwards, 2007),34 (Benz &

Papadopoulos, 2006)35 and Stoker (1998).36 The system of European governance was a reaction on

a changed societal context of the post-war trauma and the will to prevent the continent of any

devastating armed conflict. It eroded the monopoly of power of its member states vertically and

later on also horizontally by increasing the role of non-state actors.

Governance in general terms was a reinforcement of socio-political steering, although the former

power monopoly of the nation state was replaced by a dynamic system with often a poly-centric

nature (Schmitter, 2006). The dynamism of the governance system accommodated (and still do)

well with the changing societal context. This is exactly what our concept of governance elasticity

comprises.

5 THE PROCES OF META GOVERNANCE (TOG) ORIENTED POLICY MAKING

Normative referential frameworks of meta-governance norms are not given by natural law but are

the fruit of societal interactions to anticipate on systemic changes. As I argued above, the

legitimacy of Western liberal-democratic nation states was triggered by profound changes. This

urged these societies to adapt their institutional organisation. The guiding principles for public

behaviour were also revised resulting in new normative referential frameworks: principles of good

32 Rosenau argued that: “(…) my qualification of the concept of multi-level governance is to regard it as referring exclusively to

governmental levels. Such a conception precludes treating multi-level governance as a form or precursor of transnational civil

society” (Rosenau, 2004). This might coincide with the vertical proliferation of power. The horizontal proliferation would be:

“Horizontal forms of interactions between independent but interdependent actors who regularly arrive at mutually satisfactory

and binding decisions by negotiating with each other and cooperating in the implementation of these decisions.” (Benz &

Papadopoulos, 2006; Rhodes, 1996) 33 “Governance as an antipode to traditional studies of government, a term which implies a tidier and more ordered hierarchy of

authority and more concentrated focus on politics than we find in many contemporary studies.” 34 “A key element in the concept (…) is the ability of organizations to self-organize and self-regulate along with other

organizations, sectors and levels of government, out of which new forms of coordinated or collective action may arise.” 35 “Governance can encompass a mixture of different modes of control and coordination. Unilateral decisions/ mutual

adjustment through negotiation, accomodative orientation/ inclination to compromise /willingness to learn from each other. (…)

act also by competition and cooperation, (…) [=] antagonistic cooperation.” 36 “Refers to the development of governing styles in which boundaries between and within public and private sectors have

become blurred. The essence of governance is its focus on governing mechanisms which do not rest on recourse to the

authority and sanctions of government”

15

governance. The revision of these principles occurred according to a process that is similar to

classic policy making, i.e. FOG-problem solving. I will apply the theoretical framework of Howlett

and Ramesh (1995) to describe how governance norms are revised. They present the policy

process as a cycle consisting of five phases: agenda setting, policy formulation, decision making,

implementation and evaluation. I argue that the formulation of TOG-norms is also subjected to

similar cyclical system. Norms need to be set on the agenda, followed by discussion and

comparison leading to formal decision making. However, no governance norm would render effect

without application in the field. Norms are finally subjected to evaluation, which is the impuls for

the initiation of new reform processes.

The first three phases of the development of new governance norms occurs in the sphere of Meta

governance. Fresh ideas on how to govern are brought on the public agenda, be it in the media or

more private epistemic communities. When decision makers37 judge that modification of the TOG-

system is required to guarantee the legitimacy of the system, these new norms enter the second

phase and become subject of debate about their pros and cons. Then, a decision will be taken

about which of the proposed new norms are accepted and rejected. After decision making,

implementation must follow to transform output in outcomes (Pollit & Bouckaert, 2004; Van

Dooren, 2006). This is where TOG-policy theory starts diverging from FOG-policy theory, since for

its implementation, the former is makes a shift from TOG-sphere to the FOG and SOG-sphere.

Indeed, for the implementation of TOG-norms, one must study FOG-issues, like health,

environment, security or foreign policy. Figure shows this graphically.

37 The division of labour depends from the type of governance, be it self-governance, co-governance or hierarchical governance.

16

Figure 6. The policy making of governance norms

It is worth mentioning at this stage that the empirical observations of the implementation of the

White Paper on European Governance will stop when implementation starts in FOG and SOG-

sphere. From that point on, the member states (and their civil servants) become the unit of

analysis. By separating this issue from my research, I clearly make the choice to avoid compliance

research (Falkner & Treib, 2008; Tallberg, 2002).

Imagine a polity that is confronted with decreasing popular support of environmental regulations

by which the implementation becomes difficult and a politically risk. The established governance

value of central top down steering is criticised and members of the polity asks for more

participatory techniques in policy making. After some discussion a new SOG-oriented Meta

Governance norm is developed which stipulates that stakeholders should be involved in an early

stage of environmental policy processes.38 This is a Meta Governance policy process, not yet

implemented in FOG or SOG. However, this norm is not legally binding (see the distinction between

legality and morality, above) and its success depends from a variety of factors in the SOG and

FOG-sphere. A first condition is that the participatory norm must be set on the agenda during

concrete policy processes. The expansion of an airport, for instance, might have profound impacts

on health and natural heritage. The responsible civil servants choose to consult stakeholders

hoping to increase public support and invite representatives of a local natural heritage association

38 Real life example in this is the Aarhus Convention on the right to access to information, public participation, and the right to

access to justice, ratified in the EU and by its member states.

META GOVERNANCE SPHERE (EUROPEAN COMMISSION)

EVALUATION

POLICY FORMULATION

IMPLEMENTATION

DECISION MAKING

AGENDA SETTING

FOG- AND SOG-SPHERE

(EUROPEAN COMMISSION)

MEMBER STATES

EVALUATION

POLICY FORMULATION

IMPLEMENTATION

DECISION MAKING

AGENDA SETTING

17

to participate in the development of the plans. However, at a certain point, issues of airport

security are raised, and the security officer wants all stakeholders who have not a particular say in

the security issue to leave the consultation table. So, the output of the TOG-process was a new

normative referential framework. This was implemented, resulting in an outcome of mixed

participatory effects, because other governance values (like security) conflicted with the

participatory norm.

The aim of this paper is on the one hand to investigate how administrators deliberate morally on

governance norms (especially in value pluralistic settings) and on the other hand what the proper

research approach for this question is. So I need to define implementation and links it conceptually

to evaluation. My definition of implementation contains five elements:

1) Implementation suggests a process, a succession of advancing occurrences with

contingency (the freedom of the moment) and path dependency (the restriction of

the past) as continuous opponents.

2) Implementation does not arise from nothing. The semantics of the word suggests

that „something‟ is brought into „something‟. What is brought into is the antecedent

of the implementation process. It is the decision that governs the range of

possibilities of implementation. This „antecedenting‟ decision can be singular or

aggregative. A singular decision is unambiguous as it contains just one element. An

aggregative decision is ambiguous as it contains a body of subdecisions that needs

to be executed at the same time. The execution of each subdecision must be

pareto-efficient or as close as possible to pareto-efficiency. Only major advantage

in subdecision A can legitimate a minor disadvantage in subdecision B

3) The antecedent of the implementation contains a content component and a process

component. The strength of these varies from case to case. The former coincides

with FOG. The latter with SOG. The legitimacy of the content component varies

from strong to weak (e.g. strong when decisions are backed by convincing scientific

evidence).39 The content component can be focused or vague. This parameter

varies according to the degree of ideological conflict.40 The process component

contains guidelines for the way how the implementation process should be

organised. Explicit legal qualifications limits the degree of freedoms in formal policy

making Informal policy making guarantees more degrees of freedom to choose

from the wide array of SOG-possibilities.

4) The construction of the antecedent is a political process. It is a decision that

incorporates an intention which results from a political choice because it decides the

future path of the polity. The intention of the antecedent offers a perspective on

possible solutions for the societal problem at stake. The process of implementation

operates in relation to the societal problem that was the origin for political decision

making.

5) Implementation has an end. The process component ends with the output. The

content component goes further in the process where the intention touches upon

the determined problem in the public sphere. The output interacts with the real

world, and creates the outcome.41 The content component of implementation ends

at the point that this interaction stagnates.

39 The precautionary principle is a moral principle that increases legitimacy of decisions in case of scientific uncertainty

suspicion of damage (Freestone & Hey, 1996; O'Riordan & Cameron, 1994; Van den Eynde, 2004) 40 This point is inspired by the conflict-ambiguity model of Matland (1995). 41 Implementation literature is marked by a fierce discussion about the point were implementation comes to an end. Top-down

models defines this point as were the output is measurable. Bottum-up models defines the point as were the outcome comes to

an end (Matland, 1995). Outcomes are gauged were policy measures affect the societal context in contrast to outputs which are

gauged on the basis of their formal status (O'Faircheallaigh, 2002).

18

Matland (2005) argued that the list of independent variables (related to the dependent variable

„successful implementation‟) in the implementation literature has become to extensive, and he

proposes an all embracing model based on two dichotomic variables: policy conflict (low – high)

and policy ambiguity (low – high). The model delivers four ideal types of implementation with

corresponding crucial factors that guarantees successful implementation (see below). Matland goes

on by arguing that:

“Some policies are inevitably controversial and it is not possible to adjust them to avoid conflict. Often

a conflict is based on a incompatibility of values and it is not possible to placate the involved parties by

providing resources or other side payments (Matland, 1995, p. 157).”

My argument is that not only political values (in my terminology FOG-oriented TOG-norms) create

severe conflict, but also administrative values (SOG-oriented TOG-norms).42 This paper focuses

(again) on the latter category.

POLICY CONFLICT

LOW HIGH

AMBIGUITY

LOW ADMINISTRATIVE

IMPLEMENTATION

RESOURCES

POLITICAL

IMPLEMENTATION

POWER

HIGH EXPERIMENTAL

IMPLEMENTATION

CONTEXTUAL CONDOTIONS

SYMBOLIC

IMPLEMENTATION

COALITION STRENGTH

Figure 7. Matlands (1995) 'Ambiguity-Conflict' model

This paper focuses on the investigation of the moral deliberation schemes of civil servants who

implements SOG-oriented TOG-norms. I am interested in the outcome of the process of TOG-policy

formation. This is the point were civil servants applies SOG-oriented TOG-norms in concrete policy

issues.43 This is the point where they ask themselves: “How do they involve stakeholders while

drafting policy proposals according to the Community Method?” I am interested in the justification

of decisions in these matters. By this, I hope to find the answer on the question whether

contemporary SOG is subjected to various and occasionally conflicting Meta governance norms, or

whether contemporary SOG is guided by one overpowering Meta governance norm. This is the

difference between monistic and pluralistic value systems.

6 “EUROPEAN GOVERNANCE: A WHITE PAPER” AS EXAMPLE OF CASE STUDY

It is impossible to apply in full detail the conceptual universe of the preceding paragraphs. Yet it

seems important to us to show to a limited extent how our ideas can be applied to real world

settings.44 The most ideal case study should full fill three criteria: (1) high degree of governance

elasticity; (2) societal context prone to intense changes; (3) explicit normative referential

framework for governance available. The European Commission published in 2001 a document,

“European Governance: A White Paper.”45 It was part of a larger programme to reform the Union

(Georgakakis, 2007). The occasion of this paper was (1) the painful abdication of the Santer-

Commission with Edith Cresson accused of corruption (Gillingham, 2003) and (2) ongoing lack of

42 See Hood (1991) and above (paragraph on Orders of Governance) for a more precise explication of administrative and

political values. 43 I do not focus on output, since this approach would only comprise the study of documents, and not how the content of these

document is converted into praxis. 44 The full application will be performed in the PhD project that is hiding behind this singular paper. 45 COM(2001) 428 final. Throughout the text, we use the name “White Paper on European Governance” (WPEG)

19

democratic legitimacy of the EU (Armstrong, 2002). From four priorities presented by the new

Commission President Prodi in February 2000,46 a policy towards better governance in the

European institutions would be one (Georgakakis, 2007). Perceiving the European project as a

more-than-governmental way of governance47 the initiative of Prodi was a reaction against the

shadow of a potential democratic deficit (Hix, 2008; Kohler-Koch & Rittberger, 2007; Schmitter,

2000) of this new multi-level mode of governance (Börzel & Risse, 2000; Piattoni, 2009). The

European experiment that anticipated the impotence of the centralistic nation state needed

corrections itself. This was done by the creation of a new moral framework of good governance

behaviour. Prodi legitimised this strategic action of the Commission48 by arguing before the

European Parliament49 that the nature of European integration was changed profoundly by the

broadening of the competences in Maastricht and by the enlargement.50

Considering the implementation of governance norms and consequently possible moral

deliberation, it is important to asses the legal status of White Papers correctly. It is likely that the

presence of hard low norms will have a different influence on moral deliberation than soft law

norms would have. I define White Papers as soft law, thus as source of law, since

“all instruments and standards that prescribe how to to act or behave, that establish goals and means

of administrative action and that dertemine the judicial outcome of conflicts, regardless of their

outward appearance.” (Ossenbül, 1998, p. 130)

Article 249 TEC suggests an exhaustive list of sources of European law.51 Koopmans (1995, p. 692)

judges the ostensible simplicity of this article as misleading. There are two reasons:

“This is the case because firstly the EC Treaty itself establishes more covertly the existence of other

lawmaking instruments and recognizes the existence of (unwritten) sources of law. In various Treaty

provisions one comes across other Community instruments, such as programmes and international

agreements, and also the commitment to (unwritten) general principles of law. Secondly, the system

as established by the Treaty soon proved to be insufficient in practice. It has therefore been

supplemented by means of the inventiveness not only of the EC institutions involved in the lawmaking

process, but also of the Court of Justice. The former have taken recourse to a whole range of

instruments not provided for by the Treaty, such as resolutions, communications, guidelines, etc.”

(Senden, 2004, pp. 33-34)

The reconciliation of these alternative sources of law is established by the distinction between

primary, secondary and tertiary sources of law. White Papers are part of the latter category, and

thus soft law, and thus does not contain (inherent) legal capacities by which it cannot enforce its

norms. They provide a standard for interpretation (ibid. p. 52).

46 COM (2000) 154 final: “The Commission wants to find a new synergy between all the European Union‟s democratic bodies, as

part of a broader improvement of European Governance. We want to strike a new balance between action by the Commission,

the other institutions, the Member States and civil society. Our aim is to bring Europe much closer to the people.” 47 And by doing this, rejecting the postulations of Moravscik (Moravcsik, 2002) and agreeing with the argument of Europe as a

new mode of governance (Follesdal & Hix, 2006; Heritier, 2003; Kohler-Koch & Rittberger, 2006) 48 According to various observers, Prodi tried to re-politise the European Union again after the low profile era of Santer, and

referring nostalgic to the Delors era. 49 (Georgakakis, 2007) 50 White Paper on European Governance: “The Union is changing as well. Its agenda extends to foreign policy and defence,

migration and the fight against crime. It is expanding to include new members. It will no longer be judged solely by its ability to

remove barriers to trade or to complete the internal market; its legitimacy today depends on involvement and participation.

This means that the linear model of dispensing policies from above must be replaced by a virtuous circle, based on feedback,

networks and involvement from policy creation to implementation at all levels.” (p. 11) 51 Regulations, directives, decisions, recommendations and opinions

20

So, which standard of interpretation did the White Paper on European Governance (WPEG) deliver?

It took almost two years of negotiations inside the European Commission to conclude on the final

text. This outcome was a relative short text, based on 5 + 2 principles. The five guiding

governance principles are participation, transparency, accountability, effectiveness, coherence.

They are attended by two extra principles: the respect for the subsidiarity principle and

proportionality principle.52 The White paper also listed action points to improve the functioning of

the European Union. Finally, the Commission published a list of follow up Communications.53

The question we have to ask for the objective of this paper is whether this new normative

referential framework establishes a monistic or a pluralistic moral environment. Policy ambiguity

(cfr. Matland, 1995) immediately arises as a simple text analysis of the WPEG‟s principles (p.10-

11) shows. I present a limited selection of relevant fragments and my interpretative comments.

FRAGMENT COMMENT

1 Five principles underpin good governance and the changes proposed in this White Paper

No information on hierarchy

2 Each principle is important for establishing more democratic governance

Each: no hierarchy; each principle should be applied in each case

3 They underpin democracy and the rule of law All governance actions should obey the legal principle of the rule of law. Hierarchy between a legal norm

4 Each principle is important by itself No hierarchy

5 The application of these five principles reinforces those of proportionality and subsidiarity

Five principles cannot violate principle of proportionality and subsidiarity

But later on in the follow up process, subtle changes appear.

FRAGMENT COMMENT

6 The response confirms that more openness and better consultation are in both the immediate and the long term interest of the EU, not only for providing better policies but also for more efficient implementation. [Report from the Commission on European Governance (2003), p.8]

„Openness‟ and „better consultation‟ (the latter understood as the operationalisation of the participation principle) are brought under the umbrella of the „efficiency‟ norm. Efficiency as governance is not mentioned in the White Paper. It seems to reinstall old Weberian reflexes of administrators.

With regard to the relation between legal norms and moral norms followed the WPEG the logic of a

polity which is fundamentally based on the rule of law. In this sense, the principle of the rule of law

might be determined as the value that offers the currency to make plural norms commensurable.

But often, after this first deliberation, moral issues would remain unresolved. The moral dilemma

remains. The WPEG present itself as a pluralistic environment with five governance principles that

should be applied together (fragment 2 and 4). The WPEG does not mention the principle of

efficiency. Efficiency is a norm that forms dominant factor in technocratic administrative systems

(G. B. Peters, 1996). Therefore, it is reasonable to argue that it is part of the former and well

established administrative culture of the European Commission. In its later communication, the

Communication re-introduces the efficiency principle in the normative referential framework and in

such a way that it seems to take a dominant position. Given this few fragments, we could conclude

that the Commission tried to create a pluralistic environment of governance ethics in order to deal

with changing societal conditions, but that its old habits are still alive.

A next step –and the most interesting one- is the analysis of individual moral deliberation. As

mentioned in paragraph 5, each new normative referential governance framework needs to be

applied in reality. FOG-spheres are the place where this has to happen. In our empirical work, we

52 TEU, Article 5. 53 See [link website]

21

are selecting civil servants of DG Environment of the European Commission who have been

involved in policy activities between 2003 and now. We want to know how they deal with the

various governance norms, and whether they judge in a pluralistic or monistic ethical environment.

Therefore, we need an special methodological approach that is presented in the last paragraph.

7 RESEARCH DESIGN

7.1 RESEARCH STRATEGY

The preceding paragraphs have introduced the conceptual universe in which to analyse moral

deliberation of administrators in matters of the implementation of normative referential frameworks

for governance. Which governance norm is prioritised and how do administrators justify this choice.

The relevance of these questions lies within the efforts to increase governance elasticity as an

attempt to reassert the legitimacy of the communal bound of Western polities. As a consequence,

administrators are increasingly confronted with new sets of normative governance principles meant

to guide second order governance normatively. The increased governance flexibility seems to imply

a kind of moral pluralism or at least seems to urge the designers of these new norms to promote a

kind of value pluralism.54 This compels administrators to balance various governance norms on the

basis of a commensurable benchmark. It remains unclear whether this is possible, and if they

make a choice, whether a particular governance value appears as dominant.

The empirical environment I am confronted with is complex since the process of moral judgement

is essentially a psychological process combining automatic intuitions and deliberative reasoning

(Harenski, Antonenko, Shane, & Kiehl, 2010). It is more than classic opinion research which is

accessible through surveys and quantitative data analysis (Billiet & Waege, 2001). Of course, the

opinion of the respondent matters at the end, but I am particularly interested in how this opinion

has been formed. Then, would the social psychologist argue, you should use an experimental

design. Put some respondents into an artificial and controlled environment, confront them with a

short list of governance norms and observe how they react morally. Post-experiment interview will

add additional data for proper interpretation (Nuttin, 1999). But I oppose the usefulness of moral

judgement in an experimental environment. I need the respondents in their real life working

context, with personal decisions that will generate real life outcomes. Then the anthropologist asks

why I would not choose for participant observation.55 It brings me right into the action, makes it

possible to detect the moments of moral judgement, allows me collect data, any kind of data you

want, narratives or numbers (Bernard, 2006). And:

Participant observation involves immersing yourself in a culture and learning to remove yourself every

day from that immersion so you can intellectualize what you‟ve seen and heard, put it into perspective,

and write about it convincingly. When it‟s done right, participant observation turns fieldworkers into

instruments of data collection and data analysis. (ibid. p. 344)

Although the arguments in favour of participant observations are quite convincing, this strategy is

not appropriate as I need to step into a policy process that will be finished when this project comes

to an end. Given the case study context of the European Commission, there is no guarantee that

any process that is enrolling at this moment, will come to an end before summer 2011. What I

need is the in-depth quality of data derived from participant observation but collected in a limited

54 See below for the argument in the case of the White Paper on European Governance. 55 With which I am familiar with, see (Van den Eynde & Goorden, 2006)

22

time span. Applied ethnographic researchers would argue for Participatory Rapid Assessment (PRA)

a technique which means going in and getting on with the job of collecting data without spending

months developing report. This means going into a field situation armed with a list of questions

that you want to answer and perhaps a checklist of data that you need to collect (Ibid. p. 352).

This approach comes close tour technique, Personal Path Reconstruction (PPR). PPR should be

preceded by preparatory research of the normative referential framework. The output is an

analytical framework of the various governance that are presented therein. An historical analysis of

the policy process of developing the new normative referential framework is also important. Once

these conditions are fulfilled, the proper fieldwork can be started.

7.2 INVESTIGATING MORAL JUDGEMENTS: PERSONAL PATH RECONSTRUCTION

My methodological approach bears close resemblance to the above mentioned technique of PRA. I

need to collect in a relatively short time span my empirical data. However these are data from a

process, so I need (1) an access to this process and (2) condensate it in a shorter review period

than traditional participatory observation (where tdata is equal to tprocess). The notion of tprocess refers

to a longitudinal element in the design. Bryman (2004) says:

A researcher is often a participant of an organization or member of a community for many months of

years [MVDE: participant observation according to Bernard, 2006] Alternatively, he or she may

conduct interviews with individuals over a lengthy period. Moreover, the researcher may be able to

inject an additional longitudinal element by analysing archival information and by retrospective

interviewing (p. 52)..

This notion of retrospective interviewing corresponds with my approach. The time span wherein I

conduct interviews is shorter than the time span that covers the empirical process as object of my

research. Interviews are retrospective for they refer to moments of moral judgements in the past.

Interviews are pure PRA when they are conducting right on time. This distinction is expressed in

the notion of a condensed time span.

The process-element (and thus element of time) is pivotal. I investigate psychological processes

behind a policy process, although I am not interested in the matters that concerns moral

psychologists.56 To be precise, and as mentioned already in chapter 1, I am interested in the

social-political effects of their moral choices. From a historical point of view,57 a policy process in

the Commission, be it under article 250 TEC58 or article 202/211 TEC59, consists of on the one hand

Points of Moral Consideration (as judgement) (PMC) on SOG issues and on the other hand

transition periods where moral judgement is visible in its consequence and not as activity. The data

I need are situated at these crucial (PMC), although information on the transition periods are useful

to interpret correctly moral judgement.

The historical point of view can be perceived in an objective and a subjective manner. The former

is looking at factual outcomes, sometimes a result of individual decision making, sometimes the

result of power interactions. The latter is looking at the outcome of moral deliberation at the level

56 These are for instance debating whether the neural activity of moral intuition as part of moral judgment is situated in the

medial prefrontal cortex or not (Harenski, Antonenko, Shane, & Kiehl, 2010; Young & Saxe, 2008). 57 I take here deliberately a different perspective from the cyclical model of policy sciences, although the pattern of the policy

cycle as presented in chapter 1 can be detected and will be useful tool for later analysis. The historical perspective mainly has a

methodological utility. 58 “Where, in pursuance of this Treaty, the Council acts on a proposal from the Commission, (…)” 59 The Comotology procedure, which enables the Commission to implement provisions from the Council

23

of the individual. It is not because A chooses morally for option α that the outcome of the

subsequent social process excludes option β. The set of possible objective outcomes consists of the

sum of subjective outcomes. Factors exogenous to the individual as moral agent become relevant,

like power, pressures, experience in social interaction, and the like. I try to validate both objective

and subjective outcomes, although the focal point remains the subjective act of moral judgement

and more precisely whether the administrator applies a value pluralistic or monistic governance

ethic.

What I seek to do is to reconstruct the personal history, i.e. the perception of administrators, and

how they behaved morally throughout the process. This is why I call the method Personal Path

Reconstruction (PPR). A practical example might help to understand the initial approach. My

respondents are actors (in this case administrators) who are involved in policy making, but in such

a way that they bear the responsibility to take decisions with regard to SOG-dilemma‟s. Given a

policy field Y, an administrator John of DG Y of the European Commission becomes responsible to

implement a decision of the Council under articles 202/211TEC. John is aware of the new

governance values of the European Commission as communicated via the White Paper and its

subsequent communications. Especially Communication COM(2002) 704 final60

on public

participation and the WPEG-norm of policy coherence becomes important managing the

Commitology process. At a certain point, stakeholders formulate a proposal that infringes on earlier

policies, endangering policy coherence of the EU. After explaining the incongruence to the

stakeholders, they stick to their proposals formulated during official consultation procedures. This

is where the moral dilemma arises; this is a Point of Moral Consideration (PMC). PPR is a method to

reconstruct the transition period and to analyse carefully how John deals with the dilemma.

Figure 8. Personal Path Reconstruction

A crucial element of this method is that the test of various values is not biased. While asking the

respondents, the interviewer has to control for all the mentioned values in an equal way. There is

an interviewer-bias and a respondent bias. With regard the former, I have for instance a strong

background in participatory governance, so I must avoid spending disproportional attention to this

60 “Towards a reinforced culture of consultation dialogue – General principles and minimum standards for consultation of

interested parties by the Commission

OBJECTIVE

OUTCOME Α OBJECTIVE

OUTCOME B OBJECTIVE

OUTCOME C OBJECTIVE

OUTCOME N

TRANSITION

PERIOD Α TRANSITION

PERIOD B TRANSITION

PERIOD C TRANSITION

PERIOD N

SUBJECTIVE

OUTCOME Α’

SUBJECTIVE

OUTCOME Α’’

SUBJECTIVE

OUTCOME ΑN

OBJECTIVE PERCEPTION OF HISOTRY

SUBJECTIVE PERCEPTION OF HISOTRY

SUBJECTIVE

OUTCOME Α’

SUBJECTIVE

OUTCOME B’’

SUBJECTIVE

OUTCOME BN

SUBJECTIVE

OUTCOME C’

SUBJECTIVE

OUTCOME C’’

SUBJECTIVE

OUTCOME CN

SUBJECTIVE

OUTCOME N’

SUBJECTIVE

OUTCOME N’’

SUBJECTIVE

OUTCOME N N

PMC A PMC B PMC C PMC A

24

one governance value. Respondent bias could occur because part of the research will be

retrospective. The respondent knows at the moment of the interview the objective outcome of the

PMC. It is reasonable to assume that in given circumstances, a respondent will be inclined towards

reasserting his own original subjective outcome of preference. To avoid such a bias, PPR contains

an iterative strategy meaning that for each value the whole history under investigation is run

through using the other values of analytical reference. Applied on the WPEG, our approach implies

following steps:

STEP 1. ANALYSIS OF GOVERNANCE VALUES (inventory and definition) => Analytical Framework

Participation

Coherence

Effectiveness

Transparency

Accountability

STEP 2. LOOP 1: reconstruction of subjective history given the presence of value „Participation‟. After

a transition period A, you arrived at PMC B, have you taken the value of participation into account?

Was it conflicting with one of the other values? Which one was given prevalence? Why? This is

repeated for every PMC until the end of the research time span.

STEP 3. LOOP 2 – 5: The same work must be done for every value.

STEP 4. DETERMINING the moments were values did conflict and where they didn‟t

It is possible –but research praxis will prove it- that step 3 must not be carried out explicitly during

the interview. This would be annoying for the respondent. However, the research must be able to

run the various loops. This approach guarantees data completeness of moral judgement. Moreover,

it clarifies why on a given PMR moral priority was given to value α above β and why it was the other way

around in B. The iterative character guarantees mutual comparison through interpretation. A

second major advantage

Last but not least, special attention must be paid to legal elements that might influence the

outcome of moral judgements. I am curious how administrators deal with dilemma‟s between legal

norms and the appeal of moral norms. In some cases, when decisions can be brought before Court,

there is no moral dilemma. However, I observed in earlier participatory research a grey zone in

which administrators are operating because they know that certain decisions which are

theoretically inconsistent with a legal norm wouldn‟t be pursued. This kind of data might reveal

interesting data how administrators behave in legalistic environment like the European Union. Is

there a grey zone and how large is it?

8 CONCLUSION

The original inspiration for this paper was Matlands (2005) „Ambiguity-conflict‟ model which

mentioned the idea of value pluralism as obstacle for easy implementation of policies. The concept

of value pluralism is rooted in ethics where it opposes to monism. We wondered whether this

general idea about implementation also applies on the implementation of good governance norms

(Figure 6). We knew from the literature that Western governing history has gone through several

phases, each with specific characteristics. We described these characteristics, using four ideal-

typical representations of administrative systems (Figure 5). Before engaging in empirical research,

we built an analytical framework of governing norms (Figure 2). Once this was done, we sketched

briefly how this long chain of theoretical ideas could be applied to of a normative referential

25

framework, the White Paper on European Governance. In a final contribution we presented a new

methodology, inspired by qualitative anthropology and labelled as Personal Path Reconstruction.

The added value of this approach is filling an important gap in political science, i.e. the gap

between moral philosophy and actor-oriented research, and the effect of behaviour on social power

relations. There is already some attention in literature for the link between the social sciences and

the study of morality, but merely on the level of the individual (cfr. integrity research). My

contribution is to analyse actors who have the responsibility to take value driven decisions with

regard to questions that matters to the organisation of a polity.

Further research and subsequent publications will elaborate (1) the concept of governance

elasticity and (2) the empirical research of a European policy setting in DG environment. The

former issue is about its inherent paradox. In order to preserve existing communal bounds, one is

inclined to increase governance elasticity by formulating normative referential governance

frameworks in a pluralistic style. However, it will be argued that this evolution contains a

fundamental paradox.61 The latter issue is about in-depth interviews with a relative little amount of

civil servants of DG environment (10-15) aiming at reconstructing their moral deliberations at

Points of Moral Consideration.

61 For preliminary research on this issue, see (Van den Eynde & Goorden, 2006). For a more detailed and better argued

statement, see (Van den Eynde, 2010, forthcoming)

26

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