5 - Global administrative law: foundations

Summary

1 Introduction

The discussion thus far has focused primarily on national and EU administrative law, although the challenges posed by global administrative law have been raised in the earlier analysis. This chapter and that which follows focus directly on global administrative law. The field has developed very considerably in the new millennium, and there is much valuable scholarship. Neil Walker has astutely observed that to subscribe to phrases such as ‘postnational constitutionalism’ and ‘postnational public law’ is itself to take a normative position in relation to postnational sceptics, who deny that conceptions of constitutionalism or public law can flourish beyond the traditional Westphalian state. The literature on global administrative law is predicated on the assumption that discourse concerning the application of public law principles beyond the nation state is meaningful, an assumption that I share.

This chapter begins with an overview of the regulatory foundations of global administrative law that maps the landscape, followed by an explanation of the rise in global governance and increased regulatory activity at the global level. This is complemented by consideration of the judicial foundations of global administrative law. The material is rich, complex and diverse, and thus consideration of these foundational issues is essential for understanding the subsequent discussion in this chapter and the chapter that follows. The focus then shifts to legal issues that are central to the foundations of global administrative law, which are contestable and still contested. Four such issues are discussed in the course of the chapter.

The first concerns the very way in which we conceptualize legal involvement in this area. The dominant view, as reflected in the title to this chapter, is to think of it in terms of global administrative law. This view has not, however, gone unchallenged. It has been argued that to conceptualize legal intervention in these terms is problematic in various respects, and that it is preferable to think in terms of the control of international public authority based on international institutional law. The focus then shifts to the second foundational issue, which concerns the very claim that global administrative law is ‘law’, and the sense of law that is being deployed for these purposes. This raises interesting and difficult points concerning the extent to which global administrative law can be conceptualized in traditional positivist terms, and the extent to which it is expressive of a non-positivist conception of law.