Epilogue: Accountability without Sovereignty

There is substantial agreement among contributors to this volume that the body of rights and rules that goes generally by the name of law is changing. Municipal law is becoming more responsive to changes in the supranational setting. Think, for example, of the influence of international human rights law and environmental conventions, or the effect of EU law on member states of the Union. It is also becoming more sensitive to the particularities of local contexts within nation states. At the same this body of rules and rights is reaching into new realms and striving to take account of the effects of intervention in one realm on the others. Think of the regulation of social responses to disability or the requirement to regulation of water quality. There is further agreement that the effort to make rights and rules more responsive while increasing their reach and integration increasingly takes the form of frameworks subject to revision in the light of the experience of implementing initial conceptions. Doubts emerge, however, as to whether law can be made an instrument of these changes and still be law in the sense of holding officials accountable for their acts and assuring that citizens are otherwise secure in the enjoyment of their rights. In their introduction to this volume Grainne De Burca and Joanne Scott formulate these doubts as a chain of successively less forbidding theses regarding the (in)compatibility of the ensemble of innovations just invoked, or “new governance,” with traditional law. According to the "gap thesis", the most daunting of all, there may be a fundamental incompatibility between law and new governance. According to some versions of the "hybridity thesis", new governance can be a (complementary) part of law, but only by relying on and leaving unaltered elements, substantive as well as procedural, of tradition. According to the transformation thesis, new governance can combine with traditional law so as to transform the latter. But even in this last case, there is a concern that the transformational law may need to rely on the elements of a traditional, separation of powers constitution.