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Michael Klos and Annemarie Drahmann via LELG@law.leidenuniv.nl

Life in our modern society – liberal democracy – is more than ever controlled by law. Relationships between parties in markets and society are determined by law to a major extent; our government applies law as a steering instrument on an unprecedented scale. To solve various problems, we increasingly resort to legal arrangements. Consequently, we become more dependent on it. To have an anchor at our disposal in turbulent times, to be able to live together peacefully with those unfamiliar to us, to be able to trade on a global scale, and in particular to be able to live according to our own choices and preferences: pursuing happiness on our own terms.

This increased inclination towards law coincides with developments in which the rule of law and the formation of law no longer generally only occur within the nation-state. These days we live in multilevel jurisdictions. Much of our law is established by institutions of the European Union and the Council of Europe. Law also increasingly stems from treaties.

These developments are all the result of deliberate and justifiable steps taken on a case-by-case basis. However, the end result of this increasing dependence on law in combination with an increase in laws, law formation, and governance from non-national sources is causing tension and giving rise to fundamental questions. What about the democratic legitimacy of this law? What say did those subject to the law have in that? How do we ensure that this supranational law is implemented and complied with? What happens if parts of this supranational law are not (or cannot be) implemented or complied with?

Classical legitimacy concepts for accepting governance through law, such as the principle of state sovereignty, the rule of law, and democracy, no longer seem to provide an obvious basis. Yet, support is crucial for the realization of law: too little support leads to non-compliance, and non-compliance further erodes support. And law that is not complied with ceases to be law. These are the core questions about the legitimacy and effectiveness of law, law-making, governance, and administration through law in the dynamic world of multilayered legal orders of the 21st century that are central to this program.

The program ‘The Legitimacy and Effectiveness of Law & Governance in a World of Multilevel Jurisdictions’ examines the effectiveness and legitimacy of the law we increasingly depend on. We explore the fundamental question of whether the law has the problem-solving capacity we attribute to it for the major issues of our time. Secondly, and perhaps more importantly, we look at the acceptability of governing society through law in this manner and with this intensity in multilayered legal orders. The legitimacy of law and the governance based on it is under scrutiny at both international and national levels. This is evident from the recurring discussion about the democratic deficit in the EU, the question of what the EU should and should not govern, the scope of national sovereignty, the acceptability of international treaties (e.g. climate, trade, environment, aviation, security, and defense), the (new) inclination towards referenda on EU issues and so forth.

The LELG research program has two central, interrelated questions:

a) Is there a decline in the legitimacy of law and governance in a multilayered legal order?

b) What is the significance of (declining) legitimacy for the effectiveness of the law? How can the legitimacy and effectiveness of the law be increased, particularly in the cooperation and law-making of international organizations, including the EU?

These kind of questions about the legitimacy of the supranational formation of law, its application, and the policy and governance based on it, are surfacing more than ever at this point in time and are the focus of this research programme.

• echr

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