The concept of 'law' in global administrative law: A reply to Benedict Kingsbury

European Journal of International Law

Volumn 20, Issue 4, 2009, Pages 985-995

  Somek, Alexander ^a  

^a UNIVERSITY OF IOWA   (United States)

Author keywords

[No Author keywords available]

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EID: 77952579046     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp091     Document Type: Article

References (53)

1. See, generally, Weiler, 'The Geology of International Law - Governance, Democracy and Legitimacy', 64 Heidelberg Journal of International Law (ZaöRV) (2004) 547.
2. See Krisch and Kingsburg, 'Introduction: Global Governance and Global Administrative Law in the International Legal Order', 17 EJIL (2006) 1
3. For a similar observation see Harlow, 'Global Administrative Law: The Quest for Principles and Values', 17 EJIL (2006) 187, at 209
4. Krisch, 'Global Administrative Law and The Constitutional Ambition', in M. Loughlin (ed.), The Twilight of Constitutional Law (forthcoming, 2010).
5. This is not always the case. The declaration of refugee status by the UNHCR is an individual administrative act.
6. See Kingsbury, Krisch, and Stewart, 'The Emergence of Global Administrative Law', 68 L and Contemp Probs (2005) 15, at 16
7. On the pedigree of 'governance' from the pluralistic transformation of American administrative law into an instrument of participation and agreed-upon rule-making see the highly perceptive comments by Shapiro, 'Administrative Law Unbounded: Reflections on Government and Governance', 8 Indiana J Global Legal Stud (2001) 369, at 376
8. See Alvarez, 'Hegemonic International Law Revisited', 97 AJIL (2003) 873
9. Scheppele, 'Law in a Time of Emergency: States of Emergency and the Temptations of 9/11', 6 U Pennsylvania J Constitutional L (2004) 1001
10. See G. Deleuze and F. Guattari, A Thousand Plateaus: Capitalism and Schizophrenia (trans. B. Massumi, 1987), at 3-26.
11. For apt remarks as regards this more limited agenda see Marks, 'Naming Global Administrative Law', 37 Int'l L and Politics (2005) 995
12. goes to great pains to distinguish rule of law principles, such as legality and limited powers, from good governance values, such as transparency and participation. She sees the latter as originating from World Bank and International Monetary Fund policies and denies them the stature of genuine administrative law principles. I can imagine that American scholars would have a different take on this.
13. For self-conscious modesty see Krisch, 'Postnational Constitutionalism?' (manuscript 2008)
14. See, e.g., on the Poverty Reduction Strategy of the International Financial Institutions de Búrca, 'Developing Democracy beyond the State', 46 Columbia J Transnat'l L (2008) 221, at 264-266.
15. For a discussion of this problem see Kelsen, 'Die Lehre von den drei Gewalten oder Funktionen des Staates', 17 Archiv für Rechts- und Wirtschaftsphilosophie (1923-24) 374
16. My bet is that Krisch would raise this objection
17. On accounting standard-setting see S. Cassese et al. (eds), Global Administrative Law: Cases, Materials, Issues (2nd edn, 2008), at 9-13.
18. See Klabbers, 'The Redundancy of Soft Law', 65 Nordic J Int'l L (1996) 167
19. A similar challenge was formulated by Dyzenhaus, 'Accountability and the Concept of (Global) Administrative Law', IILJ Working Paper 2008/7
20. See Kingsbury, 'The Concept of "Law" in Global Administrative Law', 20 EJIL (2009) 23
21. For a very helpful introduction see Himma, 'Inclusive Legal Positivism', in J. Coleman and S. Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (2002), at 125-165
22. see also Coleman and Leiter, 'Legal Positivism', in D. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (1996) 241, at 251- 252.
23. See H.L.A. Hart, The Concept of Law (2nd edn, 1994), at 94-95
24. P. Winch, The Idea of a Social Science (4th edn, 1965), ch 2.
25. It should be borne in mind that, according to legal positivists, sources of law cannot be tantamount to sources of confusion
26. In other words, a legal system based upon the second-order rule that 'all good laws are valid laws' would be too indeterminate to constitute a relevant social fact, unless of course the meaning of this rule were further specified by conventions
27. Readers need not be reminded of the fact that 'publicness' is a part of the long-established inventory of liberal legal theory
28. see R. M. Unger, Knowledge and Politics (1975), at 73-74.
29. More cautiously, the principle of publicness has been recently explained by Waldron. He believes it to refer to the 'fact' that law represents 'a set of norms made publicly and issued in the name of the public, norms which ordinary people can in some sense appropriate as their own, qua members of the public'
30. see Waldron, 'Can There Be a Democratic Jurisprudence', 08-35 NYU Public Law & Legal Theory Research Paper Series (2008), available at: http://ssrn.com/abstract=1280923, at 14.
31. See I. Kant, The Metaphysics of Morals (trans. M. Gregor, 1996), at 91.
32. Hence, e.g., the 'legal positivism' advocated by Waldron, supra note 27, is not the type of legal positivism which tries to offer an alternative to normative political philosophy. Rather, in this case certain commendable features of legal positivism are made subservient to a certain vision of how law is supposed to work in a good society. This is reminiscent of the legal positivism of the Republic of Weimar, where it was also understood to be the attitude of those supporting democracy
33. see I. Maus, Zur Aufklärung der Demokratietheorie (1994).
34. Kingsbury, speaks of 'specific rules of recognition in particular governance regimes'
35. Natural law is that part of law for which reason understands the necessity of its existence
36. see S. Pufendorf, On the Duty of Man and Citizen According to Natural Law (trans. M. Silverthorne, ed. J. Tully, 1991), at 8.
37. See H. Lauterpacht, 'The Grotian Tradition in International Law', 23 British Yrbk Int'l L (1946) 1.
38. For a similar observation that Kingsbury supports a morally more ambitious conception of international law than he is ready to concede see Scheuerman, '"The Centre Cannot Hold": A Response to Benedict Kingsbury', in H.S. Richardson and M.S. Williams (eds), Moral Universalism and Pluralism (2009) 205, at 214.
39. See H. Lauterpacht, The Development of Law by the International Court (1958), at 396-397.
40. Kingsbury explains his preference for legal positivism quite straightforwardly as following from the need to 'provide a baseline acceptability in the absence of agreement on content-based (or truth-based) criteria for determining what law is'
41. This is paradoxical, for it is they who are supposed to apply the law. How can they cash in on their promise to say what the law is if they are not concerned about what it is they call 'law'?
42. This explains why, contrary to the expressed confidence of those calling themselves legal pragmatists, there can be no 'legal pragmatism', that is, a jurisprudence which does not address what type of justification there might be for having recourse to law without sources. The usual suspects are natural law theory, romantic historicism, and evolution of rationality. The first has much currency, but remains notoriously intuitionistic; the second is intellectually fascinating, but dead; and defending the third would require very detailed study of the development of legal institutions.
43. On pragmatism see Dworkin, 'Pragmatism, Rights Answers, and True Banality', in M. Brint and W. Weaver (eds), Pragmatism in Law and Society (1991) 359.
44. It is quite telling that the most useful and brilliant B.H. Bix, Dictionary of Legal Theory (2004) does not have an entry for 'sanctions'. When it comes to 'coercion' the reader is referred to 'duress'. It is amazing to see this happening in a legal culture where the criminal justice system is a far cry from being lenient or mild. It reveals something about the mentality of the discipline.
45. It is, of course, not the case that the element is not paid attention to by some working in the Anglo-American tradition: see, e.g., L. Fuller, The Principles of Social Order: Selected Essays (ed. K. I. Winston, 1981), at 234
46. M. Oakshott, On Human Conduct (1975), at 121.
47. See D. Grimm, Recht und Staat der bürgerlichen Gesellschaft (1987), at 302-303.
48. See G. Jellinek, System der subjektiven öffentlichen Rechte (2nd edn, 1905), at 42.
49. For a similar intervention see von Bogdandy, Dann, and Goldmann, 'Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities', 9 German LJ (2008), available at: www.germanlawjournal.com/pdf/Vol09No11/PDF_Vol_09_No_11_1375-1400_Articles_von%20Bogdandy_Dann_Goldmann.pdf.
50. I understand that this statement would require further qualification as regards so-called 'privileges'
51. In his work Jellinek famously distinguished several such status: along with the status libertatis created by negative rights also the status activus of citizens and the status positivus of those having positive rights against the state
52. stating that GAL does not take domestic administrative law as its norm, but merely as inspiration and contrast
53. See Weil, 'Towards Relative Normativity in International Law?', 77 AJIL (1983) 413