Sunday, April 12, 2009

New article: The Concept of "Law" in GAL, by Benedict Kingsbury

Many apologies for the lack of action on here of late - time flies when you are moving house for the third time in a month. This week will be much more lively, as I try to catch up with all of the important developments that have happened in the last fortnight or so. To get the ball rolling, I wanted to flag a new article just published in the European Journal of International Law by Benedict Kingsbury: "The Concept of 'Law' in Global Administrative Law":

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 the 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.

The field of global administrative law has, since its inception, faced three recurring challenges of central importance: "Global"? "Administrative"? and, predictably enough, "Law?". Each of these terms is hugely important, and heavily rhetorically charged - and yet none of them have been the subject of much in the way of sustained exposition within the Project to date. It is for this reason that this article is so important: here we have the first sustained attempt - by one of the "founding fathers" of GAL, no less - to account for why the signifier "law" is justified in relation to the Project. I will post some more reflections on this piece later in the week, when i have had a chance to read the final draft; on the basis of the earlier version presented at an NYU colloqiuim earlier this year, however, I can already say that it's well worth a read...

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