Global Administrative Law & The Challenge of Legitimacy: a Response by David Gartner

[David Gartner is an Associate Professor of Law at the Sandra Day O’Connor College of Law, Arizona State University.]

Thanks for the opportunity to offers some thoughts on Ming-Sung Kuo’s provocative and interesting article entitled Taming Governance with Legality: Critical Reflections Upon Global Administrative Law as Small-c Global Constitutionalism, which highlights some of the key tensions within the project of Global Administrative Law (GAL). The core underlying concern that the article raises about whether Global Administrative Law adequately addresses the challenge of fostering legitimate and meaningful participation within global governance is a critical question and hopefully it will spur much wider debate on that issue. The article raises valuable questions about the limits of expertise in overcoming the challenge of legitimacy but also understates the potential significance of deliberation in fostering more accountable governance. Ultimately, the project of Global Administrative Law holds more promise than the article suggests precisely because its real ambitions are more modest than Ming-Sung interprets them to be.

The article proceeds in three steps, each of which seems essential to reaching Ming-Sung’s ultimate conclusion. The first step is the claim that Global Administrative Law has emerged as a kind of “small c” constitutional law of global governance. The second step is that the legitimacy of Global Administrative Law rests on a conception of publicness which seeks to connect democracy and the rule of law without relying on a “capital C” Constitution. The third step in the argument is the claim that the concept of publicness articulated within Global Administrative Law is fragmented because of its focus on particular regulatory regimes and that it ultimately offers a post-public notion of legitimacy.
Taking up the first step in this argument, the core question is whether Global Administrative Law really does evolve into “small-c” constitutionalism. Nearly all Global Administrative scholars frame their ambitions more modestly with a focus on making existing international institutions more accountable rather than seeking to design a constitutional order. The article suggests that the project nonetheless takes on a constitutional character as its underlying normative principles gain currency but this begs the question as to whether any norms of accountability could be similarly characterized as constitutional norms. Nonetheless, Ming-Sung is right to question whether the boundaries between merely administrative procedures and more robust conceptions of governance can so easily be defined and this is an issue that deserves further exploration.

The next major claim made by Ming-Sung is that the conception of publicness developed by Global Administrative Law is really a privatization of legitimacy. Although the article rightly highlights some of the limits of expertise in furthering democratic aims, it seems to reach too far in suggesting that deliberative conceptions of democracy can so easily disintegrate into outsourcing by another name. GAL values expertise not because it is less prejudiced than parliamentary debate, as the article suggests, but rather because it can in the right context foster meaningful deliberation and require public justification of the reasoning behind decision-making in ways that could lead to more broadly acceptable decisions. While I am quite sympathetic with Ming-Sung’s concern that reasoned decisions and transparency are not enough to overcome the democratic deficit in global governance, I am less persuaded that deliberation can play little meaningful role in responding to this challenge.

The last major step in Ming-Sung’s argument is that Global Administrative Law offers a post-public conception of legitimacy. The basic idea outlined in the article is that GAL abandons a principal-agent model of accountability and instead relies upon individual regulatory publics within a given regulatory field which actually constitute private clubs with privileged players. There is clearly a serious risk of regulatory capture and also of the exclusion of affected but less well-organized actors within many of the institutions highlighted by GAL scholars. Yet it is also the case that more focused institutional settings and regulatory domains can make expanded participation by affected parties more plausible in a global context. It is much easier to ensure participation by those most affected by the building of a particular dam or in a particular field of global health than it would otherwise be to constitute participation at a global scale. The significance of transparency is that it enables the workings of a given institution to be subject to significantly wider public scrutiny rather than limit its oversight to a privileged few. Requiring institutions to publicly disclose and defend their reasoning for major decisions also potentially supports broader public accountability. At the same time, expertise and transparency are not adequate substitutes for meaningful participation and new models of participation are required to respond to the democratic deficit that the article highlights.

Some international institutions are now experimenting with many of the core tools of Global Administrative Law and a new generation of institutions is increasingly seeking to build on the more participatory impulses which underly Ming-Sung’s central concerns in this article. The project of GAL is responding to the challenge of fostering greater accountability within an institutional universe that we inherited from the 20th century. As I have suggested elsewhere, enhancing participation by civil society actors holds enormous promise in opening up opportunities for richer deliberation than remains the case when states are the exclusive participants in the governance of international institutions. (Beyond the Monopoly of States) In order to mitigate the risks of capture that the article rightly highlights, constituency models within the governance of these institutions are important and can strengthen the likelihood of meaningful deliberation. When organizational actors are accountable to diverse counterparts, they must themselves engage in the type of public reasoning which GAL scholars hope will increasingly come to characterize international institutions more generally.

Overall, Ming-Sung’s article is a valuable contribution to an important ongoing debate not just about how we define the boundaries of Global Administrative Law but also about how we broaden our conceptual frames to respond to the challenge of legitimacy in global governance. Expanding meaningful participation in the governance of international institutions is one of the biggest challenges to fostering more legitimate and accountable governance in the 21st century. Hopefully this article will not only lead scholars to take more seriously the risks of capture and the limits of expertise within existing models but also to join Ming-Sung in examining the complex relationship between different theoretical approaches to understanding how law fits into a global architecture that remains very much a work in progress.