The Concept of 'Law' in Global Administrative Law

IILJ Working Paper 2009/1 (Global Administrative Law Series)

NYU School of Law, Public Law Research Paper No. 09-29

47 Pages Posted: 13 May 2009 Last revised: 20 May 2009

Date Written: February 25, 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 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.

Keywords: Global Administrative Law, national jurisprudence, rule of law, global governance, public institutions, publicness

Suggested Citation

Kingsbury, Benedict, The Concept of 'Law' in Global Administrative Law (February 25, 2009). IILJ Working Paper 2009/1 (Global Administrative Law Series); NYU School of Law, Public Law Research Paper No. 09-29. Available at SSRN: https://ssrn.com/abstract=1397308 or http://dx.doi.org/10.2139/ssrn.1397308

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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