Transforming into What? New Governance in the EU and the 'Managerial Sensibility' in Modern Law

As part of his account of "fragmentation" in international law, Martti Koskenniemi has described the advance of a "managerial sensibility" in modern law. This sensibility incorporates two claims first, the increasing differentiation of international rules& and second, a tendency to see law not as an end in itself, but as a managerial technique. It is not difficult to apply both tenets of managerialism to the practice of "new governance." On the one hand, methods like the Open Method of Coordination (OMC) attest to a feeling that law is too distanced a register to capture the kinds of detailed intervention that EU regulation requires, leading to differentiation between policy fields. On the other hand, this has been carried out in order to "specialize," allowing overall targets to be reached through narrow administrative elites. Managerialism is present in processes like the OMC both as a differentiation of legal procedures, and as a view of rules as "flexible" in service of the evolving goals and self-image of a particular policy community.While this managerial ethos would seem suitable for a particular vision of the EU polity the depoliticized regulatory state it is increasingly problematic. As the principle vehicle for the delivery of the Lisbon strategy, determining the indicators and objectives of the OMC is a far from technical task. What appears and has been marketed as a "micro-politics" of expert based benchmarking has the potential to invoke larger strategic questions for the EU while simultaneously placing them out of public view. In response, new avenues for politicizing new governance or for opening its principle procedures and indicators up to critical evaluation and scrutiny (including to a non-expert public) may be needed. While this is no easy task, this Article will explore two modest proposals first, the scrutiny role of the European Parliament, and second, the development of the European Ombudsman as an avenue to provide non-judicial means for addressing problems of intransparency and accountability in EU governance. In both cases, while a full politicization of the method may be difficult, a partial strategy may be an important first step in reconciling new governance procedures with the democratic values upon which the Treaties of the EU claim to be based.