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Taking Kjaer‘s definition of governance as the setting, application and enforcement of the rules of the game raises issues of accountability of those governance structures and the legitimacy by which the rules can be made and promulgated, underlining different perceptions of what ‗good‘ policy might look like. Scharpf (1997) proposes researchers should differentiate between criteria of ―good‖ policy on the one hand and legitimacy of the policymaking system on the other. Criteria for ‗good policy‘ are often generally recognised for uncontroversial issues, and Habermasian deliberative discourse may surface common ‗good‘ definitions for controversial policy problem definitions and solutions. Government uses the coercive power of the state to coordinate collective action and social activity to achieve societal rather than individual goals. Legitimacy only becomes problematic where in the interests of some are made to suffer or they are forced to act against their own preferences in order to achieve the ‗common good‘. The challenge is to justify the role and level of intervention of government, and is inherently normative. Scharpf (1997: 15) suggests justification is controversial unless welfare production and distribution are simultaneously addressed. From an institutional legitimacy, of concern then is the capacity of policy systems to reach good choices, rather than the rightness of the individual policy choices.

The European literature has been motivated by the real and immediate challenge of seeking the legitimacy of supra-national government, specifically the European Union, and how in the first instance it relates to national governments, and how it can be integrated within a democratic government framework. Legitimacy concerns have developed within a wider context of multi-level governance and the appropriate hierarchical locus of power. A focus has been the so-called ‗democratic deficit‘, though concern about performance ‗implementation deficit‘ by the European Commission is also a driver (Brown, 2001; Glachant, 2000; Börzel, 2003).

Scharpf (1997: 153-155) has proposed a model of institutional legitimacy that has been widely taken up within the discipline. Scharpf distinguishes between input-legitimacy, where institutional legitimacy is derived from citizen input and direction, and output- legitimacy that derives from the institution‘s effectiveness. Input legitimacy concerns democratic decision-making through citizen and interest group participation, ensuring different values are recognised in the decision-making process. Output legitimacy concerns general efficiency and effectiveness in dealing with problems, a technocratic source of legitimacy, though both are needed to obtain legitimacy (Scharpf, 1999: 268). Input legitimacy is ultimately derived from agreement of those who are asked to comply, while output legitimacy refers to effective policies that serve the common good and conform to criteria of distributive justice

Haus, Heinelt and Stewart (2004) propose an intermediate legitimising step, process- legitimacy, to Scharpf‘s framework (Table 2-4). Process-legitimacy requires the decision- making process itself to be transparent and accountable. It also recognises the importance of institutions in determining who can participate and the quality of that participation.

Table 2-4: Different forms of democratic legitimation

legitimation principle criteria phenomena of crisis

Input legitimation participation consent decrease of voter turnout etc. Throughput

legitimation transparency accountability opaque institutions etc. Output legitimation effectiveness problem-solving policy failure etc. Source: Haus, Heinelt and Stewart, 2004 s2.

Output legitimacy is always required, but several authors suggest that input legitimacy is not always necessary for democratically legitimate institutions (Scharpf, 1997; Majone, 1989; Sbragia, 2000). Sbragia (2000: 299) suggests that in particular situations, primarily where there is technical complexity, and an ultimate oversight institution that is publicly accountable, and low public concern, output-legitimacy is a more appropriate means for gaining legitimacy. She cites the European Central Bank and the United States Supreme Courts as examples of institutions that draw their legitimacy from their outputs rather than democratic inputs.

These address the challenges presented by technically challenging issues. How institutions address technically complex matters is a challenge for modern democratic processes. Democratically elected representatives are typically drawn from the wider community and can be expected to have only a lay-understanding of technical matters. At the same time, they are being called on to make legislation to address a range of technically complex issues. This creates a dialectic between citizen participation and system effectiveness; the ability for pluralist values to be recognised within the policy formulation process, while also ensuring interventions adequately address technical issues.

This has particular relevance to the European Union which is seen to face increasingly this dilemma between democracy and technocracy. Historically, it has been seen to lack democratic legitimacy, in favour of a technocratic bureaucracy. The European Parliament, as the EU‘s only directly legitimated body, is considered to play an increasingly important role in bridging this gap. However many public policy issues are becoming more technical and complex, making decision-makers more reliant on technical knowledge of specialist experts. Bouwen (2002) suggests such information asymmetries create opportunity for access by lobbyists and thus risk of sector capture where a market for information will cleared when specificity of information provided meets decision-makers‘ needs to address technical, member country and European impacts.

The environment policy arena is challenging to democratic institutions and the public: cause and effect are not immediately or easily observable; nor are second order effects of interventions readily apparent (Lafferty and Meadowcroft, 1996: 4-7). This privileges technocratic solutions provided by the few experts who understand the complexity, while reducing ability for wider participation. Majone (1989) suggests therefore that policy areas differ in their need for [input] legitimation. He considers a non-democratic legitimacy exists where a normative consensus exists on outcomes, combined with a low political salience in technically dominated arenas such as the environment. It also presupposes the existence of professional standards and professional systems of discourse by which it is possible to judge the interpretation and application of such norms, and the technical means employed for the attainment of consensual goals.

Boedeltje and Cornips (2004) examine citizen participation for democratic legitimacy. They argue that input and output legitimacy pose different demands on citizen involvement.

They suggest two criteria for legitimacy; input-oriented legitimacy derives from the extent to which the participative process meets the criterion of fairness, whereas a high level of competence is needed to achieve legitimacy on the output side. The question is to what extent these two criteria of fairness and competence can be realised simultaneously. It is argued that both criteria are conflicting, as a high level of fairness can only be achieved at the expense of the level of competence. Therefore citizen participation should primarily focus on the criterion of competence, contributing to output legitimacy.

However, process legitimacy is only part of the overall legitimacy. Memon and Perkins (2000) and May et al. (1996), examining the efficacy of New Zealand‘s environmental management legislation passed in 1991, predicate their analysis on the basis that good process will result in good outcomes. This approach is possibly optimistic, though understandable; given the short time after the passing of the legislation had been passed when there was still a paucity of evidence of the impacts on the environment. The focus on process also underpins both the RMA and LGA 2002 in planning where in each case the government mandated a process but only provided a general statement on outcomes. While these authors may overly rely on good process to derive good outcomes, good process in the absence of clear leadership or direction does not guarantee the desired outcome. They nevertheless reinforce the notion that institutional process is important as well as outcomes, especially where democratic input may be attenuated. Thus McNeill (2005) examining the European Parliament‘s decision-making for regulations to control fluorinated gas emissions from motor vehicles, suggested procedural matters of accountability and transparency are important to ensure confidence when institutions are required to make complex technical decisions that are often poorly understood by both public and many of the decision-makers. McNeill suggests that process legitimacy is important where institutions, such as the European Parliament have an intermediate role and their performance cannot easily be ascertained due to the mediating effects of other parts of the institution (in this case the European Commission that proposes and implements directives, and the European Council that adopts and transposes them).

From this literature a legitimacy triangle can be formulated of input, output and process legitimacy. The model suggests the three modes of legitimacy contribute to an institution‘s overall legitimacy independently of each other. Accordingly, to consider government failure means that (‗good‘) policies are measured or judged according to whether political decisions and their implementation achieve the effects or objectives that are intended, and whether they are accepted and supported by the social environment of the political system and are not repulsed, thus eventually losing their status of having binding force; and whether political decisions make the best use of or are able to mobilise further resources (time, funding, etc.) (Haus, Heinelt and Stewart, 2004: s2.1).