The Administrative State Goes Global
Forthcoming in Michael A. Helfand ed. ‘Negotiating State and Non-state Law: The Challenges of Global and Local Legal Pluralism’ (Cambridge University Press, 2015)
57 Pages Posted: 20 Feb 2015
Date Written: February 20, 2015
The emergence of global norms of administrative law reshapes the administrative state. The integration with the global arena requires the state to forgo some of its regulatory powers. The article maps the various mechanisms through which transnational regulatory processes intervene in the local realm, reshaping the contours of domestic administrative law (part I). To analyze these processes we develop an analytical schema that captures the distinct impacts of global administrative law on the domestic level. This schema distinguishes between three forms of influence: the substitution of domestic administrative discretion by global standards, the emergence of universal standards of administrative due process, and the globally inspired transference of enforcement responsibilities. We focus in particular on the emergence of universal standards of the administrative process. Here, we address the fact that beyond the particular norms generated by global bodies, transnational norm-production processes also establish basic standards of procedural and institutional integrity, which together form an emerging body of universal administrative law. By standards of procedural and institutional integrity we refer to those rules that regulate the procedure and structure through which decisions are being made. These include both due-process rules, which focus on the fairness of the administrative process, and perfecting rules, which seek to improve the decision outcome in terms of some overarching principle. We adopt a pluralistic approach by highlighting the diverse sources and paths through which global law influences the domestic realm. In part II of the article we proceed to examine the normative challenges posed by these processes of transnational rule making. We criticize the hidden ideological agenda of this transnational legal body, highlighting especially its propensity to neo-liberal, capitalist ideas. This bias undermines any attempt to ground the legitimacy of global administrative law on some universal rationality. Next we discuss the problematic posed by the fragmented accountability regimes that characterize today’s global legal system. This fragmentation calls into question the legitimacy of global administrative law by exposing the lack of efficient control mechanisms on both the domestic level and the global level. Finally, we examine the democratic challenge posed by the expanding influence of universal administrative law norms. These reflections question the legitimacy of the new body of globalized administrative law and point to the need to adapt our democratic practices to this new reality. In this context our analysis departs from the global constitutionalism literature by focusing on the potential of administrative law for democratic innovativeness.
Keywords: global administrative law, transnational regulation, WTO
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