“Constitutionalizing” Global Administrative Law or Experimenting With a Hybrid Transnational Legal Order? (a Response by Karl-Heinz Ladeur)

[Karl-Heinz Ladeur is a Professor Emeritus at the University of Hamburg.]

1. Ming-Sung Kuo’s article proffers several hypotheses. One is that global administrative law can be regarded as an element of a “small c-constitutionalism” – as opposed to “large C-Constitutionalism” in a more fundamental approach to a transformation of international law into a new type of “global law beyond the state” (G. Teubner). The concept of “constitutionalism” has different meanings – this is a problem which might hinder a productive discussion. On the one hand it is focused on a kind of self-reflection which refers to “secondary norms” of procedure, competence, systematic differentiation, validity etc. (in the sense of H. L. A. Hart). These “secondary norms” process a “control project” for “primary norms” which then reshapes social norms as legal ones. On the other hand we have a strong version of “constitutionalization” which can be regarded – with a certain simplification – as a transfer of state-related conceptions of a hierarchy of norms (with the constitution at the top) to the international domain. The role of constitutionalization is seen as a frame of reference for the closer integration of international law which is meant to supplement the weakening function of the state in the globalization process.

These are but the general foci of different versions of “constitutionalism”. Even if one leaves aside the descriptive approaches to the constitution of political sciences there is a “political constitutionalism” within the legal system which is no less normative than the “legal constitutionalism”. Both refer to some basic legal structure that has a fundamental role for the processing of the law in a modern state: the former version epitomizes the roles of parliament, public opinion, government as institutional devices for the preservation of not only democracy but also civil rights, whereas the latter tends to regard “constitutionalism” to be incomplete once it no longer includes judicial protection of civil rights even from infringements by parliamentary statutes.

Adopting legal conceptions that have been developed in the history of the western state in the domain of global law should not be regarded as impossible, however, it is, as Benedict Kingsbury rightly puts it, “challenging”. This is all the more so as “global administrative law” might rather be regarded as a kind of “ersatz” for the missing foundations of the new arenas of the globalization of law and public governance. There is neither a clear distinction between legislative and administrative functions, not to mention the negligible role of courts in the transnational domains of decision-making. There is no clear separation of constitutional and administrative questions either. There is not even a settled core of legal principles that might give orientation to the evolution of global law. This weakness of global administrative law should not be played down by a reference to a vague conception of “small c-constitutionalism” which might sound like a contradiction in adiecto because any constitutionalism is focused on basic issues of a polity. In some countries such as Germany a tendency toward a comprehensive “constitutionalization of the legal order” as a whole is gaining momentum in the practice of the Federal Constitutional Court, but this is a top-down approach within an idea of a “legal constitutionalism” which presupposes a high degree of legal and political homogeneity.

2. Ming-Sung Kuo seems to refer to a more pragmatic conception which epitomizes the need for some basic values and meta-rules for the emerging global norms to take over a normative role in the process of establishing a rule of law beyond the state. However, the question which remains to be asked is whether, and if so, to what extent This assumption even goes so far as to attribute the potential of self-constitutionalizing to this transnational civil society – if only with a “small c”

It may be a too far-reaching assumption that public international law is on the way towards “constitutionalization”, a concept which finally assumes the evolution of a new meta layer of homogenisation of the law beyond the reach of the will of the sovereign state. As has been shown above, G. Teubner goes so far as to attribute the potential of self-constitutionalizing to the emerging transnational civil society which no longer refers to the state in the traditional sense. Ming-Sung Kuo explicitly quotes Teubner when he talks about the constitutional “recasting” of legal regimes emerging in the transnational domain. However, this remains somewhat unclear because Kuo builds a bridge to state-based constitutionalism at this point – which is a completely different approach. There are some elements which might be attributed such a character (i.e. the “lex informatica” which structures the emerging global information order in its own institutions such as ICANN). However, these are mainly domains of private law which might be subject to civil rights as “public actors” but do not change their character altogether. Kuo seems to tend to do away with the difference between citizens and the state at transnational level when he even goes so far as to compare the public and private actors of global governance as a kind of “model world citizens.”

This takes the parallel between global governance and territorial statehood too far. It would relinquish the distinction between “constituent” democratic citizenship and “constituted” (administrative) powers altogether. One should not conflate a certain power of self-organization and norm-generation that have to be attributed to administrative agencies with a potential to “self-constitutionalization” which would be something different as it refers to the standards of control legitimation of the normative powers of administrators. However, Kuo also tends to stipulate the necessity of a “global rule of recognition” both as part of the “globalized legal system” and as a consequence of the parallel between state constitutionalism and global constitutionalism to attribute constitutional value to the components of the global administrative law which could be regarded as such “rules of recognition”.

On the whole global law is much too fragmented and pluralized as to allow for the conceptualization of a new “transnational constitution” or “global constitutionalism”. This hypothesis also seems to be incompatible with the idea of a new homogeneous “subject” to which the emerging constitutional order might be attributed. Some protagonists refer with good reasons to the “global society” which is different from a normatively structured and constituted people. At the same time the state is – as Anne-Marie Slaughter has put it – “disaggregating”; however, this does not mean that it vanishes. In many respects there is a resurrection of the state inasmuch as its activities multiply at global level – though not as the traditional well-structured collectivity that is represented by a “head” of state, but as a more network-like bundle of administrative agencies which constitute “networks of networks” with their respective counterparts from other countries, including private actors. This may also allow for a new role of state constitutions beyond their formerly well defined territorial borders, for example, as binding national corporations which operate at a transnational level and should not be allowed to escape from the binding effect of civil rights in private law.

3. The emerging “global administrative law” also raises problems for the formulation of a conception for the “re-entry” of global administrative law into the realm of the state as a basis for decision-making or for the control of administrators who operate in the global networks of agencies. The concepts of “legitimacy” or “accountability” are referred to in order to highlight the conflict and the coupling between domestic and transnational domains of action. This problem is of course also related to the issue of how to reflect the fact that rules that have been formulated at global level refer to some “consensus” that has been brought about in the networks of agencies and which have a certain “eigenvalue” that should not be ignored by simply referring to domestic law. The emergence of global administrative law and the fragmented realm of actors of different origin and nature (private, public, civil) and forms of action also leads to the fundamental question of whether the new type of transnational rules and decisions can be regarded as law, at all, or whether this is just a matter of political co-ordination among agencies which has to be followed by “real law” either at the level of the nation state or at the level of international organizations whereas “global law” – which lacks a clear attribution to the state and state-based “international organizations” – would not be regarded as law in the stricter sense.

The concept of “global administrative law” should not be conceived as a supplement to “global constitutionalism” – it is different! It is conceived as a law that is generated “bottom-up” by a network of overlapping practices whereas the approaches towards a “constitutionalization of international law” or “global constitutionalism” mostly presuppose too much unity in the process of an emergent world society. Any idea of a “constitution beyond the state” should be aware of the deep transformation of the “constitution of the state” in postmodernity: fragmentation is already there! The hybrid structure of norms has transpired through all “levels” of law which can no longer be kept separate in a meaningful way. And “small c-constitutionalism” might not be a helpful concept because it lacks conceptual contours and remains too vague to be differentiated from “large C-constitutionalism.”

4. Kuo rightly explains his doubt about the role of “publicness” in the qualification of norms as “legal” ones. This concept is much too vague, and it conflates substantive criteria for the formulation of the democratic standards that legal norms have to meet and the concept of law as such. Teubner and others align the reflexive mechanisms of self-control and revision of this new layer of the normative order with the secondary norms that H.L.A. Hart defined as constitutive for the stabilisation of positive law in general. This approach ignores the basic weakness of the broadened proof of variety of normative rules, patterns of co-ordination and their inter-relationships with both state and international law. It neglects the unavoidable paradox of a reference to a level of “secondary norms” as a “proof” for the existence of the “lawness” of “primary norms”: How about the unity of the plurality of levels? The unity of the legal system cannot itself be derived from a norm, and be it a meta-norm, it is an “eigenvalue” of the differentiated language of law as such. Jerry L. Mashaw has convincingly argued that the doubts of the “lawness” of global administrative law stem from the same origin as the conventional ignorance of the generative power of administration that manifests itself in the emergence of the “internal administrative law” in the 19th century. With reference to administrative agencies that have to operate with an internal perspective of creating a layer of self-binding and self-reflexive rules on the one hand and with an outside view to other private and public actors, on the other hand, one can speak of a domain of “internal law”.

Kuo also refers to this concept but only as a building block for his construction of the self-generated “constitutional significance” of global administrative law. This would be a circular argument because as he admits there is a lack of shared constitutional and legal traditions. This constitutional integration would just be a “recasting” of administrative law itself and not consist of the reframing of administrative law by an autonomous layer of constitutional law. This is why I would also regard the parallel between the state-based relationship between constitutional and administrative law, on the one hand, and the relationship between global administrative law and the “constitutionalized global governance”, on the other hand, as problematical. The emergence of global administrative law epitomizes the potential of a new type of legal order which might create a new “bindingness” by the implication of administrative agencies in a processing network of cooperation. As a consequence the “rediscovery” of the (relative) autonomy of the administrative “internal law” which finds its correspondence in the “internal law” of the methods of legal interpretation in court practice should be regarded as a model that might be helpful in the conceptualization of the rules that belong to the set of principles of global administrative law such as transparency, participation and other mainly procedural elements. One should also accept a potential to generate legal norms in domains where binding decisions are not addressed directly at citizens or organizations.

5. Kuo rightly observes that “publicness” – whatever it means – is not the same as (democratic) legitimacy. At the same time it is dubious that one can – in a somewhat behavioristic approach – reduce the generation of rules at global level to “the codes of conduct observed by privileged interested parties in individual regulatory regimes”. Administrative agencies have the competencies to develop their own conception of what the “public interest” in a certain domain (including transnational cooperation) could mean. The lack of accountability does not turn this type of decision-making into a self-defined role of bargaining in global arenas which is to be seen on a par with private action.

Kuo’s position is far from being clear with regard to the distinction between administrative or “public-private” norms, on the one hand, and the question of legitimacy, on the other hand. This is all the more so because he seems to regard the new transnational collective actors (public and private?) as a type of “model world citizens”. He tends to reproduce the state model at transnational level when he compares nation states “as components of global administration” and “districts” with the parallel organizational structure of the territorial state. This assumption misses the consequences of the “disaggregated state” (Anne-Marie Slaughter) that can only acts as a multiplicity of agencies. This development demands new forms of coupling with the territorial state which does not disappear. As Daniel C. Esty has assumed, global administrative law can provide the necessary “connectedness” between different transnational arenas of decision-making.

Kuo takes the view that we need a “post-public” conception of this new type of legitimacy, an argument which raises the question of the relationship between the concept of law and the legitimacy of legal norms that do not fit into the delegation scheme. His position in this respect is unclear as he refers at the same time to the requirement of the “publicness” as a criterion for its qualification as “law” and to the necessity to pass to a “post-public” conception of legitimacy. This is a tribute to realism albeit at the expense of conceptual clarity; there has to be a difference between the public role of administration and the outcome of the processes of public-private cooperation. Co-operation will not only occur in public-private networks alone, but also in “inter-public” joint-ventures that mobilise expertise beyond the limits of stable territorial competencies.

We are still in the process of experimentation which will generate new forms of action, new procedures, new types of co-ordination between public and private actors. What should be conceivable is a new type of co-operation between domestic agencies and the legislator, with the prospect of coupling transnational procedures of decision-making and domestic legitimation and accountability of decision-makers.