On the Constitutional Question in Global Governance: Global Administrative Law and the Conflicts-Law Approach in Comparison
Global Constitutionalism (Forthcoming)
47 Pages Posted: 1 Feb 2013 Last revised: 5 Feb 2013
Date Written: 2013
The question of constitutionalization cuts through the heart of theoretical debate on the fragmentation of global governance. This paper aims to contribute to this debate through a comparison of global administrative law (GAL) and the conflicts-law approach. While the conflicts-law approach espouses the move towards global constitutionalism, GAL disavows constitutional ambition. I make a twofold argument. First, the differing diagnoses these two approaches make of global governance lead to their distinct proposed solutions. GAL identifies the lack of accountability as the underlying concern of global governance and responds to fragmented global governance through balancing-centered legal management. The conflicts-law approach instead attributes the challenges facing global governance to the ill-designed democratic institutions in nation-states and turns to ‘democratic juridification’ as the solution. Second, GAL and the conflicts-law approach reflect two distinct images of constitutionalism. GAL’s ‘constitutional deficit’ suggests its implicit embrace of a version of constitutionalism rooted in the tradition of populist democracy. The conflicts-law approach situates transnational democracy in the conflicts-law process in which inter-regime conflicts are resolved, suggesting a prototype of constitutionalized global governance underpinned by an epistemic understanding of democracy. Despite distancing itself from its private international law predecessors, the conflicts-law approach’s epistemic view of democratic constitutionalism echoes the central role of the community of academic lawyers that Friedrich Carl von Savigny espoused in the nineteenth-century liberal reform in international law.
Keywords: global constitutionalism, global governance, the conflicts-law approach, global administrative law, populist and epistemic constitutionalism, academic lawyers, Friedrich Carl von Savigny
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