Ersatz Normativity or Public Law in Global Governance: The Hard Case of International Prescriptions for National Infrastructure Regulation

By Donaldson, Megan; Kingsbury, Benedict | Chicago Journal of International Law, Summer 2013 | Go to article overview

Ersatz Normativity or Public Law in Global Governance: The Hard Case of International Prescriptions for National Infrastructure Regulation


Donaldson, Megan, Kingsbury, Benedict, Chicago Journal of International Law


Abstract

Taking global prescriptions for national infrastructure regulation as a case study, this Article examines the nature and implications of the mingling of law, governance, and economics that is increasingly prevalent in global regulatory governance. It focuses on three sets offormally non-binding but influential instruments issued in the 2000s by the World Bank, the OECD, and UNCITRAL, each of which promotes far-reaching reforms to existing national public law and institutions. The Article excavates these instruments' unarticulated theories of the state and its roles, and their visions of the nature and preferred features of law. It explores the use by these instruments of law-like hierarchies of norms and their deployment of legal concepts within a hybrid vocabulary of law, economics, and policy disciplines. This may amount merely to ersatz normativity. But this Article posits that, by bringing discourses of public law and regulatory governance into relation, instruments of this kind could open possibilities for renovation of traditional public law within the state through the opening to an incipient global public law. The production and use of these instruments largely escapes the reach of orthodox public and private international law, and of national constitutional or administrative law. Conceivably, global public law could transform the ways in which such prescriptions are developed, and their invocation in particular cases, and might eventually contribute to the reimagination or reinvigoration of public law as a distinct mode of ordering. To assess whether these are possibilities, we take the infrastructure provisions as a "hard case" against which to analyse two approaches to global public law: "international public authority" and "global administrative law." The infrastructure case illustrates significant limits in the current doctrinal framings and institutional specificities of these approaches, and indicates the importance of future struggles among multiple differentpolitical and legalprojeds concerning the roles of law in global regulatory governance.

Table of Contents

I. Introduction .......... 3

II. Global Engagement with National Infrastructure Policy and Regulation .......... 8

A. The World Bank's Handbook for Evaluating Infrastrudure Regulatory Systems .... 9

B. UNClTRAL's legislative Guide and Model Legislative Provisions on Privately Financed Infrastructure Projects .......... 12

C. OECD Advisory Material on Investment, Regulatory Policy, and Infrastructure .......... 14

D. The Role of Transnational Instruments in National Policymaking. .......... 17

III. Infrastructure, the State, and Public Law .......... 21

A. Theories of the State and Its Role .......... 22

B. Interventions in, and Visions of, Law .......... 28

IV. Forms and Vocabularies of Law .......... 33

A. Hierarchical Structures .......... 33

B. Vocabularies of Law, Governance, Economy .......... 36

V. Global Public Law as an Avenue for the Renewal of Public Law .......... 39

A. Transnational Governance and Global Public Law .......... 40

1. International Public Authority .......... 41

2. Global Administrative Law .......... 44

B. Public Law as Mindset and Method .......... 48

I. Introduction

Global prescriptions for the reform of national law and institutions increasingly blend managerial governance, often inspired by economics, with the language and techniques of law. This blending is denounced by many public international lawyers and scholars of transnational constitutional and administrative law as amounting merely to an "ersatz normativity"1 or as corrosive of orthodox commitments to legality and values immanent in public law.2 This Article begins by examining global prescriptions for national infrastructure regulation as an example of this blending or hybridization of law, governance, and economics. We trace the theories of the state and the attitudes to law that these instruments encode, and the way in which they interweave terms familiar from public law with languages and ideas rooted in economics and policy disciplines. …

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