Some thought on E-GAL, Edinburgh 2009

Next things next, a brief account and a few reflections on the E-GAL event in Edinburgh on Tuesday the 17th of June. It was, as I suspected it would be, a huge pleasure to be involved in this event, not least of all because it was the first time since I returned to Edinburgh University in an official(ish) capacity since graduating almost ten years ago. More importantly, I think I am correct in saying that this is the first global administrative law event in whose organization neither NYU nor the IRPA in Rome played any role whatsoever. GAL has, of course, had to date some fairly serious institutional backing from some fairly serious institutions, and there can be no doubt that this has played a major role in its increasing prominence; however, if it is really to establish itself as a genuine field of research and study, the ideas and framework it proposes must stand or fall on their own, entirely independently of its initial institutional backers. Events such as these are a crucial next step in testing whether this is in fact possible.

And if this event is anything to go by, it is indeed possible. The organizers (Kasez Lowe, Pierre Harcourt and Danielle Rached) did a first class job of selecting the abstracts for presentation, and of inviting a good mix of those with some experience of the GAL field on one hand and those largely new to it on the other. Amongst the presentations, for example, were (excellent) contributions by Matthias Goldmann and Tiago Fidalgo de Freitas, both of whom have been involved in the GAL project for longer than I have; and, amongst professorial contributors, having the continued, challenging input of Neil Walker (who, incidentally, has a provocative new paper on postnational constitutionalism up on SSRN) was, as always, a real plus; unfortunately, Professor Janet MacLean from Dundee – another who was contributing to the GAL literature prior to my own involvement – had to pull out at the last minute due to illness. Hope she got well soon.

Many of the contributors, however, had no prior knowledge of the GAL project, and were weighing its usefulness as a frame of analysis within their own fields. It is here that GAL – if it is to flourish – must provide real traction. The various contributions provided, in my view at least, real grounds for optimism in this regard. It was also of real interest to have the input of Professor Alan Miller, Chair of the Scottish Commission for Human Rights; he sounded both interested in and cautious about the potential for GAL to drive progressive developments in his own field.

The abstracts of all of the papers are available here; for ease of reference, here is a list of the titles of presentations given:

Unpacking the "Concept" of "Global Administrative Law": Some Reflections on Form, Substance and Pedigree by Nuhaila Carmouche, European University Institute.

The Challenge of Global Governance to the Concept of International Law: Refurbishing Legal Positivism by Matthias Goldmann, Max Planck Institute.

The Added Value of Global Administrative Law by Tiago Fidalgo de Freitas, European University Institute.

The Dilemma of the People and Pluralist Approach in the Global Perspective by Younsik Kim, University of Edinburgh.

GAL, Investment Law and Equality by Jarrod Hepburn, Oxford University.

The Protection of Cultural Heritage: Between the European Legal Order and the Global One by Carmen Vitale, University of Bologna.

Good Governance and Electric Sector Reform in Nigeria: A Critique from a Human Rights Perspective by Oche Onazi, University of Edinburgh.

Weak Judicial Review: Lessons for Global Administrative Law? by Aruna Sathanapally, Oxford University.

If I was to make one minor critical comment about the event, it was that these abstracts, and not fully fledged papers, were all that was circulated in advance; I always find it difficult, under these circumstances, to engage fully and in detail with the arguments being made – particularly when they are as advanced and as complex as they were here – and that the actual “conferring” suffers as a result. In the event, the quality of the papers and the presentations went some considerable distance to offsetting this problem; however, there is to my mind ultimately no substitute for the possibility to read the substance of the arguments to be made in detail in advance.

A quick recap of what seemed to me some of the major points, in conclusion. Professor Alan Boyle (who I think could fairly be described as a traditional-European-international-lawyer-and-GAL-sceptic) raised the issue of what he called GAL’s “lack of focus”, and suggested that this was one of the major obstacles to it achieving more widespread adherence. By this, I think he intended the fact – to which I alluded in my previous post on Viterbo – that GAL can sometimes appear (indeed, be presented) as all things to all people; as a simple catch-all under which all global governance can be subsumed, and which consequently lacks in analytical clarity and bite. There is something of a fine line that must be tread in this regard; one one hand, I can but agree: those writing in the field of GAL must have a clear idea of what the “added value” of this framework is, and not allow it simply to become a placeholder for “global governance” (Tiago’s paper did examine precisely this issue of added value, but did so with reference to the global constitutionalist and international public authority projects; it did not discuss the other side / the added value of GAL as opposed to simply “governance”). On the other hand, there has been a real effort within the GAL project – and rightly so in my view – not to be too proprietorial about the definitions of the field, in order that it might be informed by as many different perspectives as there are national administrative laws. This balance has not yet been ideally struck.

Another theme that emerged from discussions, related to the above, was the difference between the “US” and the “European” conceptions of global administrative law (as an aside, an interesting point about the sociology of GAL: the project seems to be mostly popular with international lawyers in the US, and with administrative lawyers in Europe, where most international lawyers remain skeptical. This can be seen even in the two major institutional backers of the GAL project: the Institute for International Law and Justice at NYU and the Institute for Research on Public Administration in Rome). A useful distinction was introduced in a working paper by David Dyzenhaus to encapsulate this: administrative law can, he argued, be either “constitutive” (i.e. the actual rules establishing administrative bodies, delineating powers within them, etc.), “procedural” (i.e. the rules by which these bodies operate) or “substantive” (i.e. the norms, regulations and decisions that they actually produce). The US vision of GAL is limited fairly strictly to the second, procedural form (mirroring largely the limitations on the discipline of administrative law within the US academy); the European version, on the other hand, explicitly includes at least the first two elements, and often also the third (in Sabino Cassese’s work, for example, there is often a degree of slippage between the terms “global administrative law” and simply “global law” – indeed, I on occasion have the impression that for him these two terms are largely interchangeable). The extent to which these need to be reconciled before GAL can become a discrete “field” of study is, of course, an open question.

A third theme, and one that I addressed in my own paper, and was picked up by Tiago and Neil Walker, was that of the relationship between GAL and “global” constitutionalism. Neil insisted – I think probably correctly – that a legitimate GAL can ultimately not afford to ignore the issue of the “constitutive moment” of the bodies that it seeks to regulate; and – again, probably correctly – that there is no need to think of GAL and constitutionalism as in competition (I would agree entirely on this point, despite the manner in which I sometimes present the issues: I would, however, insist that GAL and global constitutionalism are different and not necessarily complementary projects, and that the image of community ultimately implied in the latter need not inform the former). A general level of agreement was, I think, reached on the idea that while any future global constitutionalism would need a global administrative law, the inverse did not hold; and that there was no need to view GAL as in any way opposed to the deployment of constitutional discourse in particular postnational regimes.

Other key themes touched upon in the presentations and in the discussion was that of the concept of “law” that informs GAL (Nuhaile Carmouche did a good job of critically mapping the various contenders, while Matthias made a strong argument in favour of using a “refurbished” notion of legal positivism); the various ways in which GAL might – and might not – contribute to the increasing legitimacy of global regulatory governance; and of the need for GAL to actually result in tangible improvements in concrete cases if practitioners are going to take it at all seriously (Alan Miller’s contribution was particularly illuminating on this point).

Unfortunately, memory dictates that I will have to stop at that point, which even I find entirely unsatisfactory given the amount of rich discussion that this brief recollection has omitted – particularly in terms of the more concrete papers (relating to investment arbitration, cultural heritage, etc; Jared Hepburn, for example, made an intriguing argument as to the interaction between the global and domestic levels in the interpretation of “fair and equitable treatment” in investment disputes). In any event, congratulations to the organisers on putting together a first-rate symposium; and I very much hope to get a chance to read the assorted presentations in more detail in the not-too-distant future. Again, if anyone present wants to add to or correct this account, please do leave a comment below!

Krisch: GAL and the Constitutional Ambition

Nico Krisch, formerly of LSE and now at the Hertie School of Governance in Berlin, and one of the co-authors of the paper that launched the entire GAL project, has a new paper up at SSRN: "Global Administrative Law and the Constitutional Ambition" (a subject that I am hoping to publish something on myself relatively soon). Here's the abstract:

The emergence of global governance has called into question many of the tools and concepts by which the traditionally dichotomous spaces of national and international politics and law were ordered, and various structuring proposals are competing to take their place. In this paper I examine two such proposals - global constitutionalism and global administrative law. Both represent distinct visions of how to approach the challenge, their key difference lying in their respective ambitions: constitutionalist visions set out to describe and develop a fully justified global order, while global administrative law is more limited in scope, focusing on particular elements of global governance and confining itself to the analysis and realisation of narrower political ideals, especially accountability. Such a limited approach raises serious problems, most prominently difficulties in separating 'administrative' from 'constitutional' issues and the risk of legitimising illegitimate institutions. But it also bears significant promise as it allows to focus on, and begin to answer, crucial questions of global governance without leaping to grand designs borrowed from dissimilar contexts and likely at odds with the fluid and diverse character of the postnational polity.

It's an extremely interesting paper for those interested in what we might mean when we talk about the emergence of GAL in a general sense, and how this might differ from the emergence of a global constitution (I have discussed one passage from it already, in an earlier post). Well worth a read.

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...

Kevin Davis on "Can Lawyers Change the World?"

A fortnight ago, on Tuesday 3rd February to be precise, Professor Kevin Davis of NYU gave his inaugural lecture as Beller Family Professor of Business Law, entitled “Law, Lawyers, and Global Development: Can Lawyers Change the World?”. The lecture is of real interest from a global administrative law perspective, for two important reasons. Firstly, Professor Davis himself is a central (if sometimes skeptical) figure within the project, a regular participant in the many workshops that NYU has sponsored in various parts of the world, and he will be leading a major research project within the IILJ on “Financing Development”, which will contain a significant GAL component. Secondly, and of more immediate importance to this particular post, the content of this fascinating lecture can be read as posing some key challenges to the desirability of the GAL project as a whole. A video of the lecture is now available here.

In this post, then, I want to begin by outlining the substance of Professor Davis’ talk, before going on to offer some critical reflections from a GAL perspective. The very first thing I want to do, however, is to extend my warmest congratulations to Professor Davis on his inauguration as Beller Family Professor of Business Law: I’m very much looking forward to his contributions – to the global administrative law project in particular – over the coming months and years, in the field of development finance and beyond; they will, I have no doubt, be of the very highest – and constructively provocative – quality.

Law and lawyers: good or bad for development?
Davis set the scene with a few observations about the desirability of lawyers for economic development, noting that some economists have, in the past, even argued that there is a negative correlation between the number of lawyers in a country and its level of development. In opposition to this, he sketched what is by now by far the majority view – that legal institutions, and the lawyers that man them, can and do make a positive difference in encouraging economic development. He was also keen to stress, however, that there are two different arguments concerning the positive difference that lawyers can make: one at the “retail” level, in which lawyers assist on a case-by-case, client-by-client basis; and the other at the “wholesale” level, in which lawyers can bring about broader, systemic change in legal orders in an effort to secure the conditions necessary for economic development and growth. This second argument he traces back to the Nobel prize-winning economist Douglass North for his work on linking the rise of Western Europe to the institution of effective regimes of property rights and contract enforcement. (We could perhaps go back even further, however; claims of this sort seem central to Marxist thought, and something very similar to this argument – albeit, perhaps, expressed in a different vocabulary – had already been worked through in 1924 by the Soviet legal theorist Evgeny Pashukanis, in his book on The General Theory of Law and Marxism). These different levels of optimism about the potential role of lawyers assumes some significance later on.

Davis accepted the basic thrust of this position – that law and lawyers can have a positive impact upon development – but immediately looked to problematise a claim that, to him, many accept far too easily as a corollary: the idea that there is thus a universal, “one size fits all” template for the “effective” legal/judicial system, and that this simply needs to be transplanted into whichever country in the world is experiencing developmental difficulties for these to vanish. The bulk of the rest of the lecture was devoted to criticizing three different “universalist approaches” – in terms, however, that were clearly intended to move beyond the examples he gave and apply to all “one size fits all” legal reform projects. One point that did link each of the approaches that Davis discussed here, however, is that they all rely, to some degree, on empirical, social scientific data collection and “measurement” in making their claim to be desirable templates for universal law reform; the extent to which this might impact upon his conclusions is something to which I will return briefly below.

Davis suggested three main obstacles or objections to any universalist approach to global legal reform. The first is the normative claim that different people, different societies have radically divergent values, and that the law can be calibrated in different ways in order to further different goals. The first objection, then, is that universalist endeavours simply ignore value pluralism. Secondly, Davis pointed to the importance of local substitutes for what are (perceived to be) important legal reforms, meaning that scarce resources might be better applied elsewhere. Lastly, he also signaled the crucial role that certain complements can play – elements that may, if not present in the target society, actually function to undermine the goals that the reforms in question were intended to further.

Three universalist approaches
Davis then went on to outline, and critique, three different “universalist’ law reform positions that have been suggested recently. The first, and least sophisticated, of these was what he referred to as the “common law” approach: the claim, based upon “the work of a very prominent group of economists at a number of Ivy League schools who have written a very influential, widely-cited set of papers that they summarized in a recent survey article this year”, that countries that adopt a common law system score better on many of the key indices of development (such as levels of investor protection, lower government regulation, less corruption, better labour markets and judicial systems, etc.) than did their civil law counterparts. This is then used in support of proposals for pretty wholesale systemic reforms.

To this, Davis opposed his three-pronged critical apparatus. The normative problem is that this approach is massively reductive in terms of radical differences over what societies want, and what developmental ends a legal system should further (he also pointed out, interestingly, that despite these intermediate findings, the works that he outlined previously had been unable to find evidence of a causal connection between the common law and levels of economic development itself). More fundamentally, he also noted that there may be some “intrinsic” ends that societies feel a civil law system furthers that are external – and superior – to its ability to promote development or otherwise. As an example of this, he discussed recent movements in the Caribbean to renounce the jurisdiction of the UK Privy Council, and instead to establish some form of Caribbean Court of Justice for hearing final appeals from courts in the region – despite the fact that the Privy Council brings with it all of the experience and expertise of one of the oldest common law jurisdictions in the world. This was summed up in the view of one commentator in terms of “self government being better than good government”. (Davis suggested that this is “paradoxical”, although I’m not entirely sure I see why. Certainly, if we accept the plausible proposition that self government and good government are two independent but valid normative goals, then any apparent paradox disappears – it is simply a statement of relative weighting).

The common law-fits-all approach also fails in terms of substitutes and complements. On the former, Davis notes simply that, even if there is a causal link between development and the common law, then many developed civil law countries have clearly found more than adequate causal substitutes. As to complements, Davis simply points out that, given the crucial role of judges in the common law system, transplanting it to any country that does not have the key complement of an independent and effective judiciary is likely to be profoundly counter-productive.

The second of the universalist approaches that Davis discussed was that offered by the World Bank’s Doing Business project (which made explicit use of the “one-size-fits-all” claim). That project involved an extremely broad data collection exercise in which the ease with which certain key economic transactions (property transfers, debt collection, etc.) could be conducted. Countries were then ranked along these lines, and encouraged to improve their positions in the relevant rankings. These rankings could then play a role in funding decisions of the Bank and other organizations, and as such can have a real impact.

Despite taking a more sophisticated, “functional” approach, Davis argued that this also fell foul of his three objections. Firstly, it is quite clear that (very) reasonable people might disagree with many of the Banks assertions as to what is desirable in a legal system (Davis took, as one example among many, the Bank’s belief that secured creditors should be able to enforce their rights as easily as possible, and take precedence over all others). As to substitutes, Davis told the story of a Ugandan lawyer’s reaction to the Bank’s finding that it took 30 days to set up a business in her country. This was certainly true in terms of formal rules; however, the informal network of lawyers was dense enough that, in almost all cases, it was unlikely to take more than 2-3 days wherever a local lawyer was involved. This, he argued, meant that there was a workable, informal solution that meant that scarce development resources would be better targeted elsewhere. Lastly, on the issue of necessary complements, Davis talked of the US in Afghanistan, and their “success” in reducing the time needed to start a business to 9 days. However, to actually become operational, it still took over a year, as all of the corruption had simply been shifted to the licensing phase. Thus, without the complement of an effective licensing system, the initial reform was effectively empty.

Lastly, Davis turned to what he termed a “procedural” universalist approach, although this was more based on a particular social science methodology than what we normally think of as proceduralism from a legal perspective (again, a point to which I will return below). This is the argument that no legal reform should be implemented without a fully controlled and randomised trial, of the same sort used for drugs (this is the example in which the social science slant of Davis’ choices, although present in all three, is most readily prominent). So, for any proposed reform in any given society, a controlled experiment should be run on a proportion of the relevant actors in that society before it can be legitimately extended to the society as a whole, and the results measured and evaluated in an objective manner.

Leaving aside the technical issues involved (e.g. is it even possible to “control” an experiment of this sort to the degree necessary?), Davis argued that this approach again fails to overcome his three hurdles. Firstly, although it doesn’t predetermine any substantive outcome, but rather a procedure to be followed, there are still normative concerns. For example, what are the ethics of using those in the treatment group as guinea pigs, particularly if those guinea pigs fear it may harm them? In terms of the other two obstacles, Davis argued that there may be more cost-effective ways of testing the proposed reform than through experiments of this type; particularly as, given the difficulties involved in designing, running and interpreting the results of such experiments, a crucial complement is to have a community of experts capable of doing so.

On the basis of the foregoing, Davis drew two conclusions – one pessimistic, and the other more optimistic (if fairly heavily circumscribed). The former is that “one-size-fits-all” approaches to law reform have to be abandoned; the universalist approaches simply cannot respond adequately to the three contextualist objections that he raised. Rather, solutions to problems have to be tailored to the context in which they are to be applied, meaning that, in his own words, “most of us in this room have relatively little to offer, at least in our capacity as lawyers, to the poor countries of the world because we know our own system”. So what, if anything, can lawyers do? In essence, what Davis is (relatively) optimistic about is their capacity to assist in a support role: helping to ensure that those with knowledge of the local conditions have the expertise (e.g. through information sharing) and the voice to bring about the required changes and to ensure those in power act in good faith. Lastly, he recalled the importance of working simply one case at a time, one client at a time – even if this only means encouraging clients to take contextual issues into consideration.

Some critical reflections
One of the questions posed to Professor Davis at the end of his lecture concerned just how far he intended his “contextualist” argument to apply: whether it was limited to the three – fairly controversial – examples of “one-size-fits-all” global norm generation that he had directly addressed, or whether instead it was a more general argument, applicable with equal force to, for example, the normative activity of the UN (be it in terms of treaties, standards, model laws, etc.). Davis’ response surprised me, at least:

I think I’m actually a pretty radical contextualist, so I would intend to cover those dimensions... Logicially, the argument would extend to any effort to have the same laws – and especially the same words – applied to every country; and so, if the claim is that that’s the best you can do for those countries, then I think that... that can’t be right. Now, if you’re saying as a pragmatic matter that this is the only way to achieve any sort of reform, that might be a different story... But if you want to argue that that’s going to generate good law, then I think that’s going to be a difficult argument to sustain. There’s also going to be a question of the legitimacy of these global actors, and the legitimacy of the products of their activities, when typically developing countries have a lot of trouble participating in those fora, having their voices heard. There aren’t many fora that matter, I don’t think, in which developing countries are happy with the amount of voice that they have... so I’m not particularly comfortable with the one-size-fits-all solutions that emanate from bodies other than the World Bank [either].

It is in many ways difficult to imagine a broader attack on the normative bases of the global administrative law project than that offered in this short passage. Crucially, it casts doubt on both “coordinates” of the project (which – in my view – are interacting dialectically in order to produce the whole). To recap this argument very briefly, we have seen empirical GAL scholarship split along two lines: those that examine the administrative law of global administrative bodies (the extranational coordinate, focusing on global subjects); and those that study the existence of global administrative law norms for national administrative actors (the domestic coordinate, focusing on global sources). In his response to the questioner, Davis effectively called into question both of these.

Firstly, his response to this particular question means that the entire lecture can be read as an attack on the desirability of global administrative law’s domestic coordinate (or, in the terms suggested in the original framing paper, on the element of “distributed administration” in global administrative law), which is largely about the development and implementation of a one-size-fits all set of administrative law rules that can be applied from sector to sector. The clearest example of this is perhaps the Aarhus Convention on environmental decision-making; however, it is in many ways the driving logic behind this entire section of the field, and can be witnessed in some of the administrative law provisions of the WTO agreements, in some of the pronouncements of the WTO’s Appellate Body, and also in much of the administrative law-type normative output of global administrative bodies themselves.

This tripartite distinction between the different global sources of GAL – treaties, judicial decisions and global administrative norm generation – is also important in the light of the second claim that Davis made pertaining to the legitimacy of the global processes that generate the one-size-fits-all proposals that he criticizes. The key question is, to what extent can increasing the legitimacy of the global source serve to overcome Davis’ contextualist objections? Might it be argued, for example, that treaties remain legitimate global sources of domestic administrative law given the required state mediation by an act of national ratification? Or that a legitimate global court might legitimately develop standards in this field? Is the function of Davis second point above – concerning the participation of developing countries in global administrative bodies – to undermine the power of the first, “radically contextualist” one? If so, we might suggest that the extranational coordinate of GAL – which aims precisely to increase voice and decrease disregard of marginalized interests in such bodies – could function to rescue the legitimacy of the domestic coordinate in a pleasingly circular fashion. All we need to do is increase accountability of and participation in these bodies and their one-size-fits-all approach to domestic administrative law reforms becomes legitimate.

Pleasing though this is, and plausible to an extent, I suspect that Professor Davis would find it a far from satisfying conclusion, for a number of different reasons. Firstly, it would only even purport to overcome the “normative” element of his objections; those relating to substitutes and complements would still remain. Secondly, there would be (very) plausible grounds to argue that often the acts of governments do not approximate particularly well to the collective will or values of those they purport to represent. The playing field of international politics cannot be levelled simply by a requirement of national ratification, or by the introduction of a formal right of participation or two; and this doesn’t even speak to the important issues of corruption or capture by vested interests. Thirdly, to accept this point would be to undermine what I took to be the central argument that Davis was making: that good solutions (in both normative and effectiveness terms) to concrete governance problems must of necessity reflect the particular circumstances and context in which they have arisen.

What hope for justifying global administrative law in this context? Here, I want to make a single tentative suggestion: that it is when faced with Davis three sets of contextualist objections – relating to the importance of values, substitutes and complements – that global administrative law distinguishes itself from all other “global law” projects. I can’t develop this in any real detail here, but I would go about forming a GAL-defence to Davis’ concerns along the following lines:

1) GAL (much like Davis’ “experimental” variant of universalism) does not seek to predetermine substantive outcomes, but focuses rather on the procedures by which such outcomes are obtained. Unlike that experimentalism, however, GAL is not limited to a particular type of scientific procedure (although, as I have argued elsewhere, there is no reason why it cannot be calibrated also to that end); to the contrary, it can be used to secure the conditions in which marginalized voices can be heard, and genuine local will-formation, genuinely reflecting local values, becomes possible.

2) This means, in turn, that we may be able to defend GAL (in the abstract at least – I’m talking here of potential, how this will cash out in any given context is of course a matter of real concern, to be contested anew in each new situation) as representing a universal (or at least universalisable) set of substitutes and complements; or, at least, in the case of the former, providing the conditions within which we can be relatively sure that the local substitutes that exist do not degenerate from informal workaround into institutionalised corruption

I suspect that my second claim here might benefit from a little further clarification and elaboration. Put simply, I am (tentatively) suggesting that, at its best, GAL in the domestic coordinate (that is, “one-size-fits-all” rules on accountability, transparency and participation for particular sectors of domestic administrative activity) can help to create the conditions in which 1) local, contextual will formation, that reflects more than simply the interests of the dominant local players, might be possible; 2) effective local particularities can be supported largely as is, while ate the same time reducing the possibility that they themselves will simply reflect, or come to reflect, local power relations; and 3) we can begin to reconcile a genuine concern for radically divergent values with the ever-present risk of mistaking local domination for local culture. To take some of the examples relied upon by Davis himself: an effective set of administrative law complements relating to transparency and accountability would have overcome the difficulty faced in Afghanistan, in which a successful reform simply relocated corruption to a different stage in the process of starting up a business; and – as one questioner suggested at the end of the lecture – a set of procedural guarantees would also ensure that access to the informal network of lawyers in Uganda that represented the local substitute there would be available to all on equal terms, and would be less open to other forms of patronage or abuse.

I want to conclude, however, with two more general – if related – reflections on Professor Davis’ lecture. The first relates to his choice of the three “universalist” approaches for discussion. As I noted above, all three are striking for their “scientific” bias – the idea that the governance of human affairs is something that can be properly universalized not because we all share the same values, but because “good governance” is in some sense objectively verifiable and quantifiable. While Davis presents these as “influential”, however (and they undoubtedly are so from an economics perspective), within the discipline of international law they appear, to me at least, to be fairly marginal positions (the exception here may be the World Bank’s “doing business” index, which has some real governance bite, but even that does not reflect the mainstream of international legal scholarship). The reason for this, I suspect, is that all three approaches are premised upon two basic assumptions that have few adherents amongst international lawyers: firstly, that they most important elements of human governance are in principle quantifiable (although this is a proposition that may be gaining some ground); and secondly, that “good governance” (of the particular type they identify) is in some sense objective – that is, it stands beyond local values as a universal good. In this sense, it is not surprising that Davis is able to level persuasive contextual normative concerns at each, as they are premised upon a theory that simply (and to my mind unpersuasively) rejects the relevance of values to their own approach. In this regard, his normative concerns, to some degree at least, risk talking past, rather than speaking to, the fundamentals of each approach.

Related to this, and on a more philosophical note, is my second concern. By attacking only these – what we might term “objective universalist” – one-size-fits-all approaches, there is a sense in which Davis makes his own task a little easier than it might otherwise have been. For while his contextualist (relativist) concerns seem to undermine the whole approach of each of his three examples (largely because they are based upon a different set of theoretical premises), their effect is much less radically destructive to some other global law approaches – as I think he implicitly recognized by including his second set of considerations, relating to the legitimacy of global bodies as currently constituted, in his response to the question on the broader applicability of his critique to, say, UN lawmaking. The implication being that, as suggested above, a more legitimate global body would make more legitimate – universal – laws.

When we move to these less extreme examples of global norms to be universally applied within domestic settings (less extreme in that they are not premised upon the neutrality, apoliticality or objectivity of their own claims), we begin to see that the debate is not properly one of universality versus contextualism, but rather – as always – of where to draw the line in any particular case. Only the crudest of normative relativists even attempt to claim that all localism everywhere must be respected in their entirety (and in my view lapse into philosophical incoherence in the attempt to do so); and very few today subscribe to the (in some ways) opposite position – that there is one normatively correct way of doing things, and that we know what it is. I suspect that Professor Davis, despite his claims of radical contextualism, would not fall into the former category: that is, I suspect that he would not argue that every and any local custom must be accepted (and indeed implicitly encouraged) by local law reforms. It is interesting to note in this regard Davis’ response to the question regarding the risk that informal workarounds become simple opportunities for corruption and abuse: he argued that it is for local communities to decide how much corruption in public authorities is tolerable. Quite apart from the practical difficulties of operationalising such a claim (how can the feedback mechanisms of a deeply corrupt political system be trusted to give an accurate account of local feeling?), I wonder just how far he would be prepared to push this: should a donor country or institution really – for normative reasons – have no say whatsoever in whether money goes to corrupt officials or not?

All of this speaks, to my mind, of the rhetorical (broadly conceived) limitations of framing an issue as complex as this in terms of a debate between universalism v. contextualism, or even generalism v. particularism. In practice, particularly since the advent of human rights, (almost) everybody accepts that there is the need for both universal and contextual norms, for the general and the particular: the debate is only really ever over the best balance of these things in any given context; and the criticism is not that something is “universal” per se, but rather that it is not contextual enough. Answering these questions, however, requires a set of argumentative resources that simply are not provided – at all – by the rhetorical framework of the universal/ contextual dichotomy. In this sense, the arguments offered by Davis cannot serve, beyond the three examples he uses (and others, if similarly-premised), to debunk all attempts at “one-size-fits-all” lawmaking. Rather, they provide us with one – extremely useful – half of a way of articulating the problems faced by attempts to formulate legitimate “global” law of this sort; problems that the global administrative law project itself – perhaps uniquely – provides significant resources for addressing.

***UPDATE***
Professor Davis was kind enough to clarify for me his point about the phrase "self-government is better than good government" being paradoxical:

...it has taken me a while to realize why I might have been the only person in the room who found the statement 'self government is better than good government' so intriguing. It is basically because I have an idiosyncratic interpretation of the term 'good government.' It stems from the fact that in Canadian constitutional parlance 'peace, order and good government' is often characterized more like an ideal than as a merely 'good' form of government. [Here is a Wikipedia entry that may give you a sense of what I had in mind] Consequently, I read the statement to mean something like 'self government is better than ideal government.' This may not quite qualify as a paradox, but it is a bit more interesting than the assertion that 'self government is better than ok government.' I should add, however, that upon reflection I am unsure whether even the author of the statement shared my understanding of the term "good government."

Easterly on What the Poor Would Say...

I was lucky enough to be able to attend the conference held last Friday by NYU's Development Research Institute entitled "What Would The Poor Say: Debates In Aid Evaluation". I had one or two grumbles about the format - as so often happens at these things, the way in which the presentations were structured meant that there was relatively little actual "conferring" - just a set of fairly heavily truncated Q&A sessions that were too short to develop into exchanges of real interest. This notwithstanding, I found the event - as a series of extremely interesting lectures - to be very worthwhile; perhaps particularly so from the perspective of those who, like me, were not overly familiar with the issues involved from an economics/social science perspective.

In this post, I wanted to discuss Professor Easterly's talk, "The Big Picture on Aid Accountability", and in particular to frame it within a global administrative law perspective (not a particularly difficult task). In it, he confronted squarely the question posed in the title of the conference, although was at pains to stress at the outset that he was in no position to offer a substantive response to "What the Poor Would Say". Rather, he was interested in how the institutional mechanisms of development aid could be recalibrated in order to ensure that this question was both regularly asked and effectively answered; insisting that the question itself was the "basic question" upon which aid should be judged.

Easterly argued that there were three basic components of any effective mechanism of this sort: transparency, feedback (or "voice") and accountability (see, I wasn't lying when I said that it wouldn't take much work to frame this from a GAL perspective...). The basic evidence for his claim was offered in the form of a series of structural analogues drawn from other (relatively) effective institutional frameworks for regulating and directing human endeavour: the provision of private goods (the market); the provision of public goods (democratic governance); and the production of knowledge (the scientific method and community).

Easterly's fundamental argument was that the success of each of these governance frameworks was dependent upon its being able to furnish an answer to the question of "What would people say"? - which in turn is clearly related to the issue of accountability, which he styled as the most important of the three components outlined above. (It should be noted that Easterly is using a farily broad understanding of "accountability" - many examples of such mechanisms that he cites have been rejected by those who have sought to take a more systematic approach to the concept - see e.g. here for Richard Stewart's approach, and here for Grant and Keohane). he then proceeded to give an outline of how each of the components cashes out in the effective frameworks, and contrasted each of these to the world of development aid.

In private markets, for example, Easterly argued that "transparency" was ensured by the fact that businesses advertise what they are selling, and so customers know what their buying options are. Feedback is ensured, inter alia, by the copious amounts of market research that companies do, by consumer choices themselves, and by the emergence of a decentralised form of review through customer opinion pages on a vast range of websites. Accountability is ensured by the fact businesses go bust if they fail to be sufficiently transparent, or to respond to consumer voice. According to Easterly, however, aid agencies have none of these characteristics: there is very scant information on what services are being provided by whom to whom; feedback is limited as target audiences rarely if ever get to choose with what they will be aided or how they are to be developed, and there are no equivalents of the decentralised "customer satusfaction" reports that we find on the internet; and the big aid agencies are never threatened with extinction.

It is worth pausing at this point to head off one potentially important objection that could be made (and I'm grateful to my colleague at the IILJ, Sarah Dadush, for making it). It is of course true that businesses are rarely if ever as transparent as consumers would want them to be; certainly, it is in their interest to advertise their own products, but it may well be equally so to suppress other relevant information. Very frequently, indeed, product advertisements contain entirely misleading claims, to say nothing of the potential presence of unethical business practices, etc. Moreover, do we really want to transfer the logic of the market to the provision of aid? Two quick points to make in this regard, on my own reading at least: firstly, Easterly was not seeking to suggest that the market was in any sense perfect, but rather that it was relatively effective at delivering private goods for consumption, and the existence of transparency, feedback and accountability mechanisms were vital to that. Secondly, and perhaps more importantly, his point was not to argue that market logics of transparency, feedback and accountability should rule supreme in the global governance of aid; but rather that these constitute basic principles of effectiveness that find expression in structurally analogous but substantively different ways within different governance frameworks. While market logics may well have an important role to play, these will have to be sometimes complemented, sometimes contradicted, by other competing logics. It is also worth noting in this regard that his basic contention - that "the poor" and their wants/needs are the relevant constituency for feedback and accountability - is a judgement that will have to be made and defended prior to discussions about institutional developments.

The point about structural analogues was confirmed by the fact that Easterly made a similar comparative analysis for the other two relatively effective governance frameworks that he discussed - for the provision of public goods, and the production of knowlegde. In terms of the former, he focused on democracy, arguing that transparency was provided by laws such as the US Freedom of Information Act; that feedback comes from many sources, such as elections, polls, an independent media, and opposition politicians; and that accountability is ensured by the prospect that unpopular politicians will be removed from power. Again, he argued that the governance of aid was lacking many of the mechanisms that render democracy an effective provider of public goods: indeed, he went so far as to argue that the "Aid State" was effectively totalitarian in nature, never sharing its operational documents with interested parties, and sticking rigidly to a dogmatic consensus that is extremely resistant to conflict and change (thus lacking "opposition politicians"). I have not the experience to know whether this is an accurate reflection of how these agencies operate, but it's a powerful metaphor - and one that cries out for a GAL perspective.

Lastly, Easterly also argued that structural analogues of these successful transparency, feedback and accountability mechanisms are to be found in the production of knowledge. Transparency is ensured through the "centralised" promulgation of regular textbooks, and through the "decentralised" existence of many independent journals. Feedback is ensured through fostering debate on published works, through the mechanism of peer review, and through the fact that anyone - regardless of qualification - can disprove orthodoxy by following the established (scientific) method. Accountability is largely reputational in form; yet not unimportant for that. Again, Easterly found aid agencies wanting in terms of the basic elements of good governance that enable knowledge to be effectively produced: there are only centralised and very partial databases of statistics in aid; there is a lack of scientific freedom of research within aid agencies, and little if any peer review; and there appear to be no penalties for refusal to provide data or other accoutnability mechanisms (including an interesting story about USAID, which I will blog on shortly).

I should note that I have altered the ordering of Easterly's talk a little here in seeking to frame these issues from within a global administrative law perspective. The GAL-relevance of the first two governance frameworks should be clear: GAL rules are very often enforced to ensure that the market is allowed to operate free from governmental distortions: very many administrative law provisions of the WTO agreements - and the TRIPS agreement in particular - are, indeed, explicitly aimed at this objective. Nor is it news that administrative law can be used to entrench democratic protections - or at least "surrogates" - for those individuals upon whose interests the activities of administrative bodies impact. Indeed, these in some ways map fairly neatly onto the different ("efficiency" and "justice") governance logics that I outlined here (although it is worth noting in this regard that Easterly's take on "democratic" governance was itself here largely framed in terms of its "efficiency" in the provision of public goods. While there may well be something to this, my own view is that reliance on this alone can only provide a distinctly impoverished, and deeply inadequate, account of what democracy brings to the legitimacy table).

As I suggested in an earlier post, however, there may be another logic that is based neither upon markets or morals (to use Benedict Kingsbury's formulation), but rather on the technocratic production of knowledge - a "global administrative law of science". This would seek to regulate not any particular substantive outcome, but would rather ensure the the basic elements of the scientific method - its own transparency, feedback and accountability mechanisms included - are enforceable by law. As science becomes increasingly important to policy decisions, and to global administrative action more generally, it seems reasonable to suggest that it to should be subject to some of the "requirements of publicness" (to steal from Kingsbury again) to which we routinely subject our administrative agencies.

As I noted in a previous post, this is one type of reading that can be made of the - hugely controversial - Wegman Report that was critical of some of the science used in one of the IPCC's reports on climate change; and it is a claim that has been made repeatedly by the - equally controversial - critic of much of the "hockey stick" climate science, Steve McIntyre, over on his Climate Audit blog. Indeed, McIntyre was kind enough to link to my previous post, including some thoughtful reflections of his own on the possibility and desirability of applying GAL to the works of global bodies such as the IPCC. Whatever the truth behind the science here(and, like all good lawyers - if not good scientists - I rely exclusively on the "argument from authority" here, placing me firmly behind the weight of scientific opinion that global warming is both real and terrifying), I'd reckon that it must be difficult for lawyers in general, and administrative lawyers in particular, not to feel sympathetic towards McIntyre's "due diligence" arguments relating to full transparency on data and code used in climate reconstructions. Clearly, however, the role of science in global administration - and hence the potential need for a global administrative law of science - goes far beyond the realm of climate change: it is implicated in a great many WTO controversies, for example (see e.g. Chapter 6.3 of the GAL casebook, for example, or the more recent EC-Hormones decision of the Appellate Body); and lies behind some recent concerns over CERN's activities with the LHC.

My key point here is that, although it exhausts none of them, GAL cuts across all three of the relatively effective governance frameworks identified by Easterly, serving to entrench many of the requirements of transparency, feedback and accountability not merely as governance desiderata but as legal obligation. In a field such as the provision of aid - which, in ideal form at least, provides a public good through the provision of private goods based upon robust knowledge of what works and what doesn't - it is clear that different measures of each is required, calibrated differently to each concrete context in which they are to be applied. Global administrative law thus provides an extremely useful framework and vocabulary for discussing the ways in which the law can be implicated, and can assist, in the good global governance of the provision of aid. One way of capturing this may be to acknowledge a third, "technocratic" governance logic to sit alongside the "efficacy" and "justice" logics that I outlined previously.

Easterly's point can thus, I think, be framed in this way, at a very general level: for any governance activity, first decide upon who the relevant "publics" or "constituencies" are, and then determine and apply the appropriate mixture of different transparency, feedback and accountability mechanisms - drawn from the structural analogues to be found in relatively successful public, private and technocratic governance logics - to ensure the effectiveness of the governance in question. Clearly, this does not provide us with a solution to any concrete governance problem; it may well, however, provide us with the outlines of a framework within which effective solutions can be conceived, developed and implemented. And, as I hope this post has shown, GAL can and should play an absolutely central role in this process.

A little more on networks...

Following up on my earlier post below, I wanted to flag quickly an interesting contribution by Kenneth Anderson over at Opinio Juris on "The On-Going Debate Over Transnational Governmental Regulatory Networks, Global Governance, and Legitimacy". He makes a number of important points, prime among which, for me, is the following:

...accountability and democratic legitimacy have become somewhat confused in the literature on networks, governmental and NGO advocacy networks. They are, after all, separate things and separate political/moral values. You can have democratic legitimacy and yet have very poor accountability mechanisms. And you can have excellent accountability mechanisms, yet not through democratic mechanisms, but instead through legally enforceable governance standards, courts of law, efficient bureaucratic oversight, etc. So saying that intergovernmental regulatory networks of the kind praised in A New World Order often lack transparency or accountability is important, but it is not always, and not always most importantly, because of a lack of democratic legitimacy. The question of democratic legitimacy is there independently. So is the question of accountability.

The rest of Anderson's post is essentially an argument in favour of restricting the functions of transnational networks of government networks to that of "coordination" between States (presumably excluding, then, the type of normative production that characterises the activity of, say, the Basel Committee), on the grounds that it is only in doing so that the members of such networks can remain sufficiently tied to the (national) democratic legitimacy that alone can justify their exercise of public power. What I think this argument - important though it undeniably is - misses is that, when we make the necessary distinction between accountability and democratic legitimacy, we are also, to my mind at least, opening up space for at least the possibility that there may be valid forms of legitimacy that are not democratic in nature, and that may be able to justify a more extended role for networks beyond that which democratic considerations alone could do.

The existence of these different forms of legitimacy is perhaps most important within the sphere of global governance; indeed, for some time now I have been convinced that notions of democracy can only at present (and for the foreseeable future) play a fairly limited role in justfying the adoption of global administrative law rules, and that appeal thereto should consequently be limited. Amongst other things, it is far too simple to criticise, and basing the entire project thereon makes its normative basis appear far more vulnerable than it actually is.

The key reason for this is that there exists no global (or, indeed, regional, with the possible exception of the European Union) demos to which "democratic legitimacy" can refer. All attempts to decrease the democracy deficit in global governance, then, must do so by reference back to national, or perhaps local, constituencies, by strengthening the "delegation" between them and the global governance bodies in question. That this is extremely difficult - even in the context of highly formalised international organisations - is by now almost universally agreed; however, there is significantly less agreement on the proposition that no administrative activity can be undertaken by IOs that is not justified by a strong chain of democratic delegation or representation (which strikes me as the logical consequence of Anderson's position). On the contrary - and this is one of the central insights of the GAL project to date - legitimacy can be improved by increasing the responsiveness of global governance bodies to the interests of those upon whom their activities impact. This is, in many ways, an "interest representation" model of administrative law, removed from the domestic context in which it was developed and writ global; and it is ultimately justified not on the basis of a claim to democratic legitimacy, but rather on an appeal to fairness and/or individual rights.

Nor is this the only form of non-democratic legitimacy that may be of relevance. Like it or not, a legitimate - indeed, important - goal of global governance is that it be effective. Informal networks of governmental officials often have siginifcant advantages over the more cumbersome, traditional IOs in this regard; and, where these bodies are generating high-quality and effective regulation, particularly in the less politically charged fields, then this alone might, in some circumstances, be sufficient to render such bodies legitimate, even if there is no apparent democratic justification for their activities - at least, I see no conceptual reason why that should not be the case. Unless, of course, we begin with the premise that all public power can only be legitimated democratically; this, however, is far from self-evident normatively, and clearly false historically and empirically. It would leave little if any conceptual room for legitimating the governance by global administrative bodies of the type that is so widespread today.

Of course, as I pointed out in my previous post, the advantages brought by the flexibility and adaptability of such networks are (at least) counterbalanced by the risks of the same - without appropriate safeguards, including transparency and accountability mechanisms, there is little to suggest that they will not be flexed and adapted in thoroughly inappropriate ways. As Anderson importantly points out, however, the very presence of these protections does not eo ipso increase democratic legitimacy; indeed, in most GAL situations, describing them even as "democracy surrogates" strikes me as misleading. Accepting this, however, is only the start - and not the end - of a difficult discussion on the legitimacy of global governance structures, networks included.

The relation of the domestic to the global in administrative law: Inspiration, model or cage?

In order to further my new year's resolutions (both in "post count" and "respond to comments" terms), I thought I would pick up on an anonymous comment made to a quick post of mine noting some GAL-type issues to which the recent EC-Hormones Appellate Body decision gave rise, which I unfortunately didn't have time to respond to at the time. It's a thoughtful contribution, and voices a concern that a number of others working in the field have begun to raise: the question of the relation of the domestic to the global within the GAL project. Here is the comment, worth republishing in full (I have added a few paragraphs, for ease of reading):

Just a little thought on the characterization of standard of review, due process etc. discussed in Hormones as 'global administrative law' issues. My lingering feeling is not as much about the individual concepts themselves, but how unconsciously these have become GAL paradigms. I believe the project in its earliest days, over three years ago, refused to confuse itself with domestic administrative law in theoretical underpinnings and modus operandi. I will be quick to add that when I say 'theoretical underpinnings', I don't deny the strong normative case made for a supra-national administrative law on the basis of the success of domestic administrative law principles and institutions. And when I talk of modus, I refer to the fact that it was open-ended and for debate if a GAL should draw from domestic law systems. What I rather intend to convey is the chastely observance of the typical international law tradition in the theoretical framework for the subject in those days: the compelling needs of modern international law, the powers of globalization and the state as a receding actor, those classical concepts upon which a purpose-oriented discussion was initiated. That accountability and transparency could be the domain of GAL without administrative law principles that we are so often tempted to revert to was a possibility that made the subject cutting-edge and left a whole lot of scholarship to brew.

What I think may happen with this (albeit justified) fetish for bracketing of instances like these as breakthroughs for GAL is a possibility that more theoretical explanations will have to be advanced to embrace a somewhat direction-less course for the subject. May be too strong a usage, but I see two far ends in the GAL colloquy that need to be bridged, a set of scholars who are making advances in the theory of the subject (like Dyzenhaus) while on the other, a group of scholars who have inadvertently narrowed the scope of the subject to a review of domestic administrative law-like happenings in the international field. A conceptual vacuum is left, one that may not be in need of an explanation, but that seems to exacerbate the two differently-headed GAL premises.

With the advantage of having seen the AB shift its leanings over the years, I believe this decision is opening yet another floodgate to litigation, not for having found new rights and duties, but for making a lengthy discussion that trade lawyers will have fun in putting up as issues before future panels. The one incident when there was real ad law happening in the AB was when it let amicus briefs in. Look at what happened: the AB incurred the wrath of the membership and went back to square 1 practically, accepting briefs but dismissing almost all of them as 'not relevant' to deciding the dispute(s). While I am unsure how this happening can be put within a theoretical framework other than the immediate realpolitik explanation that surfaces, the biggest reform that the AB is in need of is to make amicus briefs meaningful. Of course, then comes the issue of public hearings towards which we are moving at a fast pace. These are, in my opinion prime GAL candidates, not the standard of review or the burden of proof that are of an interpretative nature of the covered agreements, having nothing to impact directly the stakeholders in the WTO (people really affected by trade rules).

It would indeed be interesting to see in which direction GAL's theoretical scholarship will move in the coming days. Perhaps I personally am unable to handle the simplicity with which the second group of scholars are talking the subject (modern academic scholarship is more about being less arcane, one could say). I may ultimately be wrong in perceiving there is a kind of fissure in the direction for the subject, but it seems to me, at least now, that a more unified approach to the subject is necessary.

A similar point has been (or will be) raised by Nico Krisch (one of the founding fathers of the GAL Project) in his contribution to a forthcoming volume on postnational constitutionalism, which he has kindly allowed me to quote from in this post (and again worth quoting at some length):

GAL seeks to explore and map existing and emerging accountability practices, and it does so in a framework borrowed from administrative law. Here again, like constitutionalist models, it draws on domestic concepts for the understanding and construction of global structures. However, in GAL this move does not imply the prescriptive assumption that the tools of domestic administrative law ought to be transferred into the institutions of global governance, e.g. by establishing judicial review mechanisms wherever individuals are directly affected or by instituting public participation whenever global administrative bodies are engaged in rule-making. Instead, administrative law serves mainly as an inspiration and contrast: it serves as a framework for identifying converging and diverging developments in institutional practice, and it helps us sharpen our sensitivity for the problems and possibilities of establishing accountability mechanisms on the global level. Through reflection on the transferability of domestic concepts, the similarities and dissimilarities in both institutional structures and environmental conditions come into much clearer view.

B.S. Chimni’s work on the Codex Alimentarius Commission is a case in point: by studying the costs and benefits of stakeholder participation in its regulatory functions, we gain a more precise idea of the limits of using certain administrative law tools and with it a better sense for the conditions under which such tools may further broader normative goals. Using domestic administrative law as a background rather than as the basis for prescription also reflects the variations in administrative law structures from country to country. GAL scholarship has largely used the prism of US administrative law but has also drawn on other sources , and the resulting comparative angle also allows a sharper understanding of the differences in background assumptions between administrative law systems. Thus, turning to administrative law for inspiration is mainly an attempt to expand the intellectual and practical resources for thinking about global governance, for bringing out similarities and differences, rather than prescribing particular institutional solutions.

Both of these comments raise, in slightly different terms, what seems effectively the same issue: that of the the way in - and extent to - which global administrative law should draw on the experiences, rules, mechanisms and principles of its domestic counterpart. My own difficulty with raising the issue - important though it undoubtedly is - in abstract terms such as these is that we perhaps risk loading the words we use with more signficance than they might otherwise convey (what precisely does "inspiration" mean in Nico's quote above - does it preclude, should the circumstances so warrant, direct transplantation?); and, on the other hand, in setting up a straw man of those from whom the authors wish to distance themselves.

This second point strikes me as the crucial one. While it is certainly true that some authors have proposed using domestic frameworks as a model for GAL, I know of none that have even suggested that the application of these frameworks from the domestic to the global will be anything other than challenging. I take it as entirely uncontroversial that, as I have argued elsewhere, GAL will be at once recognisable by analogy to its domestic counterpart (indeed, it is this that justifies the choice of the "Administrative Law" moniker for the project) and at the same time something fundamentally new. That global administrative law will, must, be at one and the same time the same and not the same as domestic administrative law is clear; this is also, however, probably as much as we can say about the issue in the abstract - the precise contours of the sameness, or lack thereof, will and should vary from case to case, according to the specificities and the exigencies of each concrete situation.

Take, for example, what I have referred to as the "domestic coordinate" of GAL, and which the framing paper discussed as "distributed administration" - when national administrative bodies administer global regimes, or are otherwise subject to global rules. There is clearly a different dynamic at work here - and one that would perhaps more readily favour simple transplatation of familiar domestic administrative law rules and principles than there is in the case of, say, the Basel Banking Committee, ICANN or ISO. Nor does the result of this dynamic necessarily render GAL any more or lesss "cutting edge" in one context or another - while it may be less controversial to apply administrative law to state bodies than to networks of legislators, one of GAL's key advantages is to bring these two disparate situations within one (reasonably) coherent conceptual framework.

The risk here is that, in stressing the primacy of the new, positions like those adopted above might underplay the need for continuity with, and the potential of, the old; might underestimate the extent to which the domestic can - indeed must - inspire the global. In particular, even if the mechanisms and rules will of necessity change from one context to the next, the principles of domestic administrative law - accountability, transparency, participation, and the like - must remain the key considerations at the global level. Indeed, it is only through the transferral of these principles from the domestic to the global setting that we can identify what constitutes administrative law in the latter - that, however different the concrete manifestations are, GAL is primarily concerned with that which speaks to the accountability and transparency of, and participation within, global administrative bodies. (Unless of course, we adopt the European approach, where GAL is simply "the law of global administration" - neat in one sense, but brings a whole lot of problems of its own - not the least those of delimitation).

On there other hand, there is - and this is what both comments that I have quoted above are really driving at - a real risk of complacency involved in such transplantation; that rules and mechanisms that are not particularly well suited to the institutional or substantive context to which they are to be applied will be used simply through reliance upon some crude and unreflective domestic anaolgy. The point here is not that such instances are "not-GAL", but rather that they are bad GAL, or at least GAL that fails to live up to its potential. This is an ever-present possibility, to which proponents of the field must be constantly aware; but it is a possibility that can only ever be evaluated in context.

I want to conclude by making a few final observations on some of the other interesting points raised in the anonymous comment above, particularly in relation to the perceived "fissure" in the project, and the suspected need for unity. My own view on this is quite different. Indeed, I wonder if the term "project" is still appropriate to describe what is happening in GAL (if, indeed, it ever was), conveying, as it does, a sense of a relatively discrete research agenda directed by a relatively small group of institutional actors. GAL, to the contrary, is - perhaps always was - better encapsulated in the idea of an "emerging field": a field to which anyone with an interest can contribute, whose structure and boundaries are fluid and contestable, and - perhaps most importantly - in respect of which no one person or institution has authoritative definitional power.

To put the matter somewhat differently, while the commentator is undoubtedly correct in his/her observation that a number of GAL scholars have focused on theoretical issues, while others have been more empirical in their approach, there is no great degree of homogeneity within these two groups: not all of those writing in theory agree with the direction, or even with the major preoccupations, of Dyzenhaus (indeed, this is in some ways precisely his most recent point); and the empirical analyses betray a wide range of differing conceptions of what GAL "is", each of them integrating their theoretical presuppositions to a greater or lesser, more or less explicit degree. In this way, the debates that the commentator seemed to suggest above are non longer "up for grabs" remain every bit as open as they did three years ago; and conceiving of GAL as a field rather than a "project" helps us see that they will likely remain that way for some considerable time to come.

In any event, a belated thank you to the anonymous author for leaving such a throughtful and provocative comment; and to Nico for allowing me to quote from his forthcoming piece.

The new EJIL:TALK! blog: GAL gets an early mention

Quick post to flag what promises to be an extremely interesting new blog for things international and legal - the European Journal of International Law's new EJIL:Talk! experiment (hat tip to Opinio Juris). They kick of with a (spirited) discussion between Ernst-Ulrich Petersmann and Rob Howse over Petersmann's latest EJIL article, entitled "Human Rights, International Economic Law and 'Constitutional Justice'". The discussion very much picks up - in both tone and content - from the 2002 discussion of an earlier article by Petersmann, again involving Howse, and also Philip Alston. Both are a fun read...

I just want to pick up on one quick point here: in his latest "rejoinder" to Howse, Petersmann notes:

Like most North American supporters of ‘global administrative law’ based on ‘constitutional nationalism’, Howse remains sceptical of European proposals that multilevel governance for the collective supply of international public goods requires multilevel constitutionalism. Yet, Hobbesian ‘principal-agent theories’ describing diplomats as the real masters of international organizations need to be challenged by ‘cosmopolitan constituencies’ (P. Lamy) and constitutional conceptions of citizens as ‘democratic owners’ of international governance institutions.

This raises the question of whether, and the extent to which, support for global administrative law is based on "constitutional nationalism", by which I take to mean the claim that the discourse of constitutionalism has no place outwith the context of the nation-state. (I am unsure whether Petersmann is claiming here that GAL itself if based on such constitutional nationalism, or only North American support for it - his formulation is a little unclear on this point).

The relation of constitutionalist discourse to global administrative law has been a major area of focus for me in the last couple of years, and a topic on which I hope to have a few things published in the near future (one early version of such a paper can be found here). In this post, however, I just want to challenge the idea that GAL is necessarily - indeed, at all - premised upon a"constitutional nationalism" of the type that Petersmann suggests.

This is an issue that I, along with Eran Shamir-Borer, have sought to address in detail of late (an early draft of our paper can be found here). In that paper, although we do style the administrative law and constitutional approaches to global governance as in many ways competing conceptions, we also stress the important ways in which they can be complementary.

Firstly, we distinguish between two different variants within the constitutionalist discourse:
1) The "extra-national" variant: these are the authors that argue that certain international bodies or regimes (almost always either the European Union or the WTO) now exhibit certain features that entitle us to refer to them as "constitutional; and
2) The "universal" variant: this group of authors (to which Petersmann himself undoubtedly belongs) see not a plurality of heterarchically arranged constitutional sites ("constitutional pluralism", to use Neil Walker's phrase), but that all of these sites are (or are becoming) themselves part of a universal heirarchy within a globally constituted polity.

(Actually, there is a third variant of "global constitutionalist" discourse: the "domestic" variant, in which global rules are seen as providing as source of domestic constitutional law. Although widespread, it's not massively relevant here.)

Next, we argue that any attempt to regulate global governance (as both the administrative and constitutional approaches do) will have to confront 3 main challenges:
1) Institutional diversity: characteristic of global governance has been the explosion of new types of actors within the global legal arena;
2) Fragmentation: these diverse actors and regimes are not - as yet, at least - all contained within one clear heirarchy of authority that is global in scope; and
3) Value pluralism: there appears to be irreducible difference between different conceptions of the "good" within the global legal order, notwithstanding the advent and proclaimed universality of human rights.

We make the following 3 points with regard to these challenges:

1) Constitutional discourse in its "extranational" variant limits itself to a tiny group of organizations and regimes - the EU, the WTO, occasionally the UN and perhaps the law of the sea. One of the main drivers of the global administrative law project is that the institutional diversity of contemporary global governance renders this a hopelessly inadequate discourse for encapsulating the activity of the vast majority of important governance actors. For every EU or WTO to whom a constitutionalist discourse can be plausibly applied, there are hundreds of ISOs, FATFs, Basel Committees, etc., in which the same discourse simply seems entirely inapplicable.

2) "Global" constitutionalism - of the type that Petersmann espouses - contains an appeal to unity that is simply not present within the contemporary global legal order. That order is, instead, fragmented, and shows no sign of becoming heirarchically arranged within a single authoritative structure, despite Petersmann's predicitions in this regard. This is not, of course, to say that such a move will not happen, or is a concpetual impossibility; far from it. But GAL has no need of the type of unity to which global constitutionalism requires; instead, it can work with the fragmented system "as is", rerpesenting each site at which public power is exercised as a battleground for increasing public control and accountability.

The combined effect of these two arguments is, firstly, that global administrative law can - indeed, must - exist alongside the limited constitutional discourses of the EU, WTO and others, in order to help regulate the activities of all of the other bodies that are playing important roles in the exercise of public power beyond the nation-state; and secondly, that GAL will precede global constitutionalism within the global legal order, and, importantly, will continue to exist even if we never move towards a single constitutional order at the global level. If we do move towards such an order, however, it seems clear that, given the depth and complexity of global administration, GAL will continue to be necessary as a complement to any eventual global constitutional law, fulfilling a role much more closely analogous to that of administrative law domestically.

3) The third issue, that of value pluralism, raises in many regards both the most important and the most difficult questions of the three. Almost all global constitutionalists rely - and Petersmann is no different in this regard, even if the content of what he proposes is more radical than others - of the existence of genuinely universal values. This, however, simply seems to be empirically untenable in the contemporary global order. While neo-Kantians such as Petersmann would insist that any disagreement from a fundamental (Western) orthodoxy is ultimately a failure of reason rather than an expression of legitimate and radical pluralism, many if not most internationalists would baulk at such an affirmation, fearing the specter of hegemony, imperialism and domination. Global administrative law, although emphatically not value neutral, tackles this issue in a different way, and one that is better calibrated to respecting legitimate and radical pluralism: through focusing, in large part at least, on a commitment, not to outcome but to voice, to procedural rather than substantive imperatives that seek to ensure that all positions are taken into consideration and none are disregarded without pre-empting the results of administrative processes.

Of course, these types of procedural protections are themselves far from perfect, and can lead in many cases to façade legitimation of actual domination (see here for B.S. Chimni's argument to this effect). This is a consideration of vital importance, and must be kept absolutely central in all efforts to make the extremely hard yet unavoidable move from the abstract potential of GAL to a normatively justifiable pratice. This problem, however, remains preferrable, in my view at least, to simply presuming then imposing a putative global consensus that finds precious little supporters - and a great many detractors - in actual practice.

GAL and the "New Bretton Woods": Unrealistic expectations and conflicting governance logics

With the heads of the "G-20" States meeting in Washington DC tomorrow to discuss a global response to the current financial crisis, calls for treating these talks as a new "Bretton Woods" conference, in which the institutional framework of global financial governance would be radically restructured, have grown. As I posted previously, two things are striking about the current debates: firstly, that there appears to be a significant degree of consensus that increased global administration is required to deal with the crisis; and secondly, that almost all of the reforming voices, be they governmental or from civil society, explicitly endorse at least some form of administrative-law type regulation of the reformed administration. It is worth, however, making a couple of more cautionary points in this regard, relating in particular to the unrealistic expectations of major progress being made in Washington over the weekend; and the second, mroe conceptual, relating to the importance of differentiating the demand for global administrative law in function of the governance logic that lies behind it.

Unrealistic expectations
The folks over at Opinio Juris have a couple of posts cautioning that, whatever the desires of certain - in particular European - leaders, it is extremely unlikely that any radically or even major restructuring of the current institutional setup for governing international finance will be agreed upon this weekend. The Washington Post has more detail on precisely why this might be:

Different leaders bring to the meeting different perspectives and expectations.

"That's the dangerous part in trying to achieve a common agenda. They'll try to push their own perceptions of what a global architecture should look like and who should be the dominant players," said Charles Freeman, a former Bush administration trade official now at the Center for Strategic and International Studies.

"I'm not sure that even an Obama team wants to see the United States' style and method of capitalism and financial markets converted. We value our flexibility here, and I don't think we're willing to capitulate to as much regulation as the Europeans are suggesting, particularly the French."

Sarkozy and other European leaders are proposing an early warning system to watch for imbalances in financial markets. They also want an expanded role for the International Monetary Fund as the world's financial watchdog, improved supervision of financial players and action to close loopholes that let some institutions avoid regulation.

"We need monetary and fiscal policy coordination across the world," said British Prime Minister Gordon Brown in outlining his own broad proposals for the summit to address. Among other suggestions, he wants China to use its nearly $2 trillion in reserves to help top up an IMF emergency loan program.

But China indicated on Tuesday that its focus is on its own economy. Beijing unveiled what amounted to a $586 billion two-year economic stimulus package that includes more spending on construction, tax cuts and social programs in China - but no mention of efforts abroad to lift other economies out of the ditch.

Russia, meanwhile, doesn't want to expand the IMF's powers as European leaders propose. Instead, Moscow wants the IMF's role reduced to make way for entirely new international financial institutions.

Amid high-flying but dueling rhetoric, prospects for major breakthroughs at the summit seem scant.

This is before we even get to the desires of those not invited to Washington this weekend - which include, it should be recalled, the vast majority of the world's States. Moreover, as the IFIWatchnet and Bretton Woods Project websites amply demonstrate, global civil society actors are taking more than a passing interest in the outcomes of any talks. For example, in parallel to the G8(+) moves to deal with the problem, Miguel D'Escoto, the President of the UN General Assembly, has established a task force to review the global financial system, arguing that any efforts to deal with the crisis should be "inclusive, not exclusive", and noting further that "The place to discuss is neither the G8, nor the G20, nor the G25 or the G63. It is the G192, which is the General Assembly of the United Nations".

Given the vast array of different views, even amongst powerful actors, as to what the correct course of action should be, not to mention the Presidential situation in the most powerful actor of all, it is not in the least surprising that prospects of any lasting progress at all in Washington seem slim. At present, it would appear that we have universal consensus on only the major premise of what the classic British comedy series Yes Minister memorably referred to as the "politician's fallacy": "some thing must be done; this is something, ergo this must be done". It seems that it may will take some time and much negotiation before a sufficient amount of agreement exists on the minor premise for any actual action to be taken...

Conflicting governance logics
These, then, are the practical reasons why we should not expect a huge amount of GAL-signifcance to emerge from this weekend's summit. As I have suggested previously, however, one of the most striking features of the buildup has been the near-ubiquity of global administrative law-type rules and principles in the various reform proposals that have been put forward - further evidence, perhaps, of the emergence of GAL culture or sensibility as part of an increasing regulatory common sense. In the remainder of this post, however, I want to begin the necessary task of nuancing this claim a little, as it seems abundantly clear that, although there may be increasing convergence on a few key slogans (Accountability! Transparency! Participation!), it is equally clear that these do not mean the same thing to all of those rallying around. Rather, their meaning - and, crucially, the ways in which these abstract principles will "cash out" into concrete rules and mechanisms - will varying according to the dominant governance logic driving the claim.

For the sake of argument, I will identify two such broad logics here (there may well be good grounds for disaggregating these further, but they will serve to illustrate my point): a technocratic efficacy logic (which aims at simply securing the most effective way of dealing with a problem) and a justice logic (which posits that certain procedures or mechanisms - foten rights-based - should be observed, regardless of their effect on governance outcomes, for reasons of fairness, etc.). Consider, firstly, the following excerpt from the common position of the EU States for tomorrow's summit:

The new international financial system must be based on principles of accountability and transparency.
- Transparency of financial transactions must be ensured by means of a more comprehensive information system, which no longer omits vast swathes of financial activity from auditable, certifiable accounts.
- Arrangements conducive to excessive risk-taking must be overhauled, particularly debt securitisation procedures and pay policy.
- Both prudential and accounting standards applicable to financial institutions will have to be revised to ensure that they do not contribute to creating speculative bubbles in periods of growth and make the crisis worse at times of economic downturn.
- Standards bodies, in particular in the area of accountancy, will have to be reformed to allow a genuine dialogue with all the parties concerned, in particular prudential authorities.

And compare it to, for example, the following common proposal launched by IFI-watching and debt activist NGOs:

The statement supports the fundamental and far-reaching transformation of the international financial and economic system and a major international conference convened by the UN to review the international financial and monetary architecture, its institutions and its governance, but only if the meeting follows a process that:

- is inclusive and participatory of all governments of the world;
- includes representatives from civil society, citizen's groups, social movements and other stakeholders;
- has a clear timeline and process for regional consultations, particularly with those most affected by the crisis;
- is comprehensive in scope, tackling the full array of issues and institutions;
- is transparent, with proposals and draft outcome documents made publicly available and discussed well in advance of the meeting.

The civil society statement further lists among its goals for the architecture of the new system

- To create a new set of principles in which finance should be aimed at, and linked to, strengthening national and local real economies to meet the requirement of sustainable and equitable development.
- To move away from the market fundamentalism driving the recent past.
- To curb the power of the World Bank, the IMF and the WTO, and to enhance the accountability of global, regional and national economic governance institutions.
- A call for governments to take immediate action to develop a new international regulatory architecture with democratic checks and balances that is aimed at promoting the interests of workers, small-hold farmers, consumers, and the environment and preventing future financial crises, in which the United Nations should play a central role in its development.

Same words (accountability, transparency); really quite different meanings when we dig a little deeper. On the one hand, we have the apparent idea that all we need is "effective" technocratic regulation, and the powerful states more committed to holding financial institutions to account in terms of these standards. On the other, a whole host of substantive concerns - about fairness, sustainability, equity, inclusion, and, indeed, a direct challenge to the technocratic orthodoxy - are presented as absolutely central. Of course, these different logics cash out in various different answers to the recurring "to whom, for what?" questions that invariably (should) accompany discussions of accountability; however, they are by no means exhausted by this. Indeed, it seems arguable that almost all administrative law mechanisms will have qualitative differences in function of the governance logic that was dominant in their establishment. In order to illustrate this, I'll take a brief excursion into the transparency/participation mechanism - very prominent within US administrative law - of the "notice and comment" procedure.

A brief(ish) excursion: competing logics in notice and comment
At the beginning of The Hitchhiker’s Guide to the Galaxy, a group of aliens from the Galactic Hyperspace Planning Council come to Earth, and announce that, in order to encourage the development of the outlying regions of the galaxy, the planet will be destroyed in two minutes’ time to make way for a new hyperspatial express route through the solar system. When the howls of complaint begin from the understandably aghast earthlings, the aliens reply:

There's no point acting all surprised about it. All the planning charts and demolition orders have been on display in your local planning department in Alpha Centauri for fifty of your earth years, so you've had plenty of time to lodge any formal complaint and it's far too late to start making a fuss about it now.

The serious point to take from this vignette is, of course, that, where major development projects involve significant implications for both human rights and substantive justice, the bare elements of a notice-and-comment procedure may simply not be sufficient. Something more is required.

In many ways, the Aarhus Convention, with its explicitly provides us with an illustration of what a human rights driven administrative procedure might look like in such a case. Consider, for example, Article 5(1)(c), which deals with the collection and dissemination of environmental information. It states that

In the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected.

Article 5(8) provides that

Each Party shall develop mechanisms with a view to ensuring that sufficient product information is made available to the public in a manner which enables consumers to make informed environmental choices.

Lastly, Article 7(2), which deals with public participation in decisions on specific activities, provides that

The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:
(a) The proposed activity and the application on which a decision will be taken;
(b) The nature of possible decisions or the draft decision;
(c) The public authority responsible for making the decision;
(d) The envisaged procedure…

These provisions give us some useful insights into what a notice-and-comment procedure intended to further or respect human rights might resemble. Crucially, the obligation to provide notice is framed as a positive obligation to disseminate, rather than merely publish (a proposition further bolstered by the requirement in Article 7(2) that the public be informed in an effective manner); moreover, Article 5(8) suggests that not only should steps be taken to ensure that potentially affected members of the public receive such information, but also that it is imparted to them in terms that they can understand. Given the overwhelmingly technical nature of much global regulatory governance, it is difficult to overstate the importance of this last point; without it, even stringent positive dissemination obligations are often likely to prove utterly ineffective.

By way of comparison, consider the notice-and-comment procedure initiated by the Basel Banking Committee in its preparation of the Basel II regulations. In order to take advantage of this procedure, concerned members of the public simply had to go to the Committee’s website – which is, I suspect, for the average citizen a fairly exact functional equivalent of the planning department in Alpha Centauri – and read, digest and reflect on a set of documents totaling a “mind-numbing” five hundred and forty-one pages of highly technical and complex banking and financial regulations.

It seems fairly clear, given the foregoing, that it is not a justice logic that has driven the establishment of notice-and-comment procedures within the Basel framework; rather, it is that of technocratic efficacy – designed, in particular, to head of increasing dissatisfaction with the main targets of the regulation (banks and banking regulators) with the previous arrangements under the 1988 accord. Of course, whether or not the Basel regulatory processes actually requires a human rights-driven administrative law framework is debatable; many feel that this is a prime example of a field in which technocratic processes should be allowed full reign, although some authors have suggested that more effort to engage with the general public and developing countries could improve the process (and, of course, whether the establishment of this notice-and-comment procedure did in fact lead to a gain in terms of the technocratic efficacy of banking regulations seems, given the current situation, at best an open question).

The important lesson to draw from this context, however, is how the meanings of transparency and participation differ depending upon the basic normative logic that is driving them, and how this change is embodied in the obligation to give “notice” intended to embody them. It is also worth noting that, were steps to be taken to introduce a human rights element by imposing a positive obligation to disseminate the relevant information in a generally digestible form, this would almost inevitably involve a loss in terms of technocratic efficacy – the very base upon which the administrative law mechanism was founded in the first place. Thus, not only do the different logics lead to different administrative law mechanisms, the they are also - often - mutually incommensurable.

Conclusion
The point is not to suggest that one logic is necessarily "better" than another in all contexts; simply to emphasise that, even if I am correct in my claim that we are witnessing the emergence of a culture of administrative law within global governance as part of a regulatory common sense, this common sense itself - the field of GAL - must be the subject of a whole set of different and complex distinctions and classifications. Not all of those currently rallying around the slogans of accountability and transparency in the reform of the global financial infrastructure are on the same side; often, indeed, it is quite the opposite.

Not much hope, then, despite the noise, for significant GAL-related developments at this conference, although "something must be done" at some point, and one suspects the eventual "something" will have some elements of (likely technocratic efficacy-driven) GAL incorporated within it. Of course, by this time tomorrow, I might have been proved wrong...