Academic journal article Law and Contemporary Problems

Divergent Legal Conceptions of the State: Implications for Global Administrative Law

Academic journal article Law and Contemporary Problems

Divergent Legal Conceptions of the State: Implications for Global Administrative Law

Article excerpt



Different areas of law appear to conceive of the state in fundamentally different ways. In particular, public international law, in its twentieth century guise, has tended to conceive of the state as a unified legal person, a perpetual entity able to bind itself into the future. Domestic administrative and constitutional law in the common law tradition, by contrast, does not conceive of the state at all, but rather views the government apparatus as a series of disaggregated entities often competing with each other for power, subject to checks and balances, and enjoying a temporally contingent mandate. Indeed, in many constitutional democracies, often it is the constitution itself that comes closest to a domestic embodiment of statehood.

A central premise of this paper is that the success of the various strategies for the development of transnational systems of governance will depend on how well they integrate or assimilate these differing domestic and international legal archetypes of the state. The paper begins by suggesting different ways in which the competing conceptions have been, and can be, integrated and assimilated. British colonial law's successful integration of the international and domestic law sovereign in the office of the Crown at the point of acquiring new territory is an important historical example and is considered first. The prevalence of colonial law at earlier times of transnational government also has tended to obscure the significance of the fundamental differences between domestic and international legal conceptions as they sometimes present themselves today. A contemporary technique that has further masked these differences is dualism. The limitations of this technique, given the expansion of international rulemaking, are briefly considered.

The paper proceeds from the premise that the different techniques by which spaces for global governance can be and have been created are important for, but distinct from, an evaluation of the capacity for a global administrative law to operate within those spaces so created. The sites of global governance are not necessarily the sites of global administrative law. Yet how the global space is created may have an impact on which of the techniques and functions of administrative law are likely to be effective.

Domestic administrative law in the British Commonwealth tradition tends to focus on judge-made, ex post supervision of administration. (1) Information disclosure regimes, access to information, ombudsmen complaint procedures, and the analysis of institutional design have only relatively recently attracted general attention among common law administrative lawyers outside of the United States. For the most part, the ex ante notice and comment rulemaking procedures that characterize U.S. administrative law have not been embraced in other common law jurisdictions, except in a piecemeal statute-specific way, and are commonly perceived as overly legalistic. (2) These different techniques of domestic administrative law, then, fulfill different functions and promote different and sometimes conflicting values. Ex post judicial supervision of decisionmaking, for example, may variously fulfill the functions of centralizing control, legitimating both the decisionmaker and the decision (without necessarily imposing constraints or control), interpolating values into the decisionmaking process, enhancing rationality, or enforcing participation. Information and notice-and-comment regimes have participation as their core concerns. Not all of these techniques or functions of domestic administrative law are equally effective on their own terms, nor are they equally readily translatable to the different sites of global governance.

This paper goes on to identify how two different kinds of global space are created and to evaluate the prospects for certain functions of administrative law, as we understand it domestically, to be effective within those spaces. …

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