The Concept of ‘Law’ in Global Administrative Law

Posted: 21 Apr 2009

Date Written: February 2009

Abstract

What constitutes ‘law’ in the efflorescent field of ‘global administrative law’? This article argues for a ‘social fact’ conception of law, emphasizing sources and recognition criteria, but it extends this Hartian positivism to incorporate requirements of ‘publicness’ in law. ‘Publicness’ is immanent in public law in national democratic jurisprudence, and increasingly in global governance, where it applies to public entities rather than to identifiable global publics. Principles relevant to publicness include the entity's adherence to legality, rationality, proportionality, rule of law, and some human rights. This article traces the growing use of publicness criteria in practices of judicial-type review of the acts of global governance entities, in requirements of reason-giving, and in practices concerning publicity and transparency. Adherence to requirements of publicness becomes greater, the less the entity is able to rely on firmly established sources of law and legal recognition. ‘Private ordering’ comes within this concept of law only through engagement with public institutions. While there is no single unifying rule of recognition covering all of GAL, there is a workable concept of law in GAL.

Suggested Citation

Kingsbury, Benedict, The Concept of ‘Law’ in Global Administrative Law (February 2009). European Journal of International Law, Vol. 20, Issue 1, pp. 23-57, 2009. Available at SSRN: https://ssrn.com/abstract=1389127 or http://dx.doi.org/10.1093/ejil/chp005

Benedict Kingsbury (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6278 (Phone)

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