The Concept of ‘Law’ in Global Administrative Law: A Reply to Benedict Kingsbury
European Journal of International Law, Vol. 20, No. 4, pp. 997-1004, 2009
10 Pages Posted: 25 Oct 2009 Last revised: 19 Sep 2010
Departing from the Westphalian tradition, global administrative law is seen as arising from the pragmatic needs of transboundary regulation underpinned by a normative aspiration to rule of law beyond national boundaries. Unhinged from state consent, however, it faces a twofold challenge: legality and legitimacy. The former centers on the distinction between law and non-law; the latter is concerned with the legitimacy of global administrative law. Benedict Kingsbury’s "The Concept of ‘Law’ in Global Administrative Law" (20 EJIL 23 (2009)) attempts to answer this twofold challenge by centering the new paradigm of international law, as epitomized by global administrative law, on the notion of publicness. First, he pins its solution on the substantive concept of publicness. Second, he portrays global administrative law as an inter-public law, governing the relationship among regulatory regimes in accordance with the value of publicness. This Reply argues that Kingsbury’s publicness-centered conception of international law does not resolve the challenges facing global administrative law. Rather, his version of global administrative law does not so much correspond to an inter-public law as points to a post-public conception of legitimacy, reflecting the trend of addressing the issue of fragmentation by tacitly adopting the strategy of privatization in global administrative law scholarship.
Keywords: Benedict Kingsbury, global administrative law, concept of law, publicness, inter-public legality, post-public legitimacy, jurisgenerative public
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