The observation that the notion of instrumental law focuses on the steering content of legislation, together with the general recognition that the classical principles are in serious danger of being irreparably undermined in the welfare state, puts the question of the legitimacy of instrumental law on the agenda. In the light of this problem, it is finally examined whether the communication theory of Witteveen can serve as a new theory of legitimacy. It seems to give enacted legislation a broader basis. The conclusion is that this alternative formulation of the democracy principle relates legal validity to the effectiveness of law. It can provide a solution to the problem of legitimacy as well as the problem of effectiveness of modern law in the welfare state.
Legal rules acquire their ultimate meanings in a continuous process of interpretation.
In this process of legal transformation by interpretation, legislation can be harmonized with prevalent ideas in the community. This serves to increase the effectiveness of legislation. In addition to this, dialogical legitimation must be able to offer legal safeguards fit to reinforce the safeguards of traditional democratic legitimacy.