Ming-Sung Kuo Responds to Comments on His Article by David Gartner & Karl-Heinz Ladeur

[Ming-Sung Kuo is an Assistant Professor at the University of Warwick Law School. He is the author of Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism, 44 N.Y.U. J. Int’l L. & Pol. 55 (2011).]

It is a great pleasure and honour to have Professors Karl-Heinz Ladeur and David Gartner as interlocutors in response to my piece to appear in the NYU Journal of International Law & Politics (JILP). Their critical comments and insightful observations shed illuminating light on important issues my piece aims to address. Instead of writing a ‘rejoinder’ addressing each single challenging issue raised by Karl-Heinz and David, I am taking this opportunity to highlight our disagreement and the underlying concerns we share about global administrative law (GAL), which will not only enhance the accessibility of my JILP piece but also take the debate on GAL a stage further!

The questions both responses have raised with my piece can be said as resulting from the fact of the fragmentation and pluralisation of this globalising legal landscape. Situated in this institutional background, both Karl-Heinz and David have asked three important questions centring publicness, legitimacy, and constitution. Notably, these three notions have seen their enduring influence on the discussion on domestic law.

The first question concerns the idea of publicness in GAL. To be clear, my characterisation of post-public legitimacy in global administrative law does not imply my agreement to this positioning. Specifically, my concern is that despite speaking in the name of publicness, global administrative law is moving toward the privatisation of legitimacy as also noted by Karl-Heinz. This concern arises against the backdrop of the fragmented, postnational legal order. It is also here where Karl-Heinz and David and I have parted company.

In response to my critique of GAL’s taking existing institutional settings as the sites where publicness is expected to materialise, David points to their advantages in ensuring expanded participation by affected parties as more focused institutional settings and regulatory domains. It is true that affected parties can easily focus attention on these tangible sites rather than on some elusive transnational or infranational (as Professor Joseph Weiler terms it) civil society. However, as rightly noted in GAL, types of global administrative law have already extended beyond the formal public (inter)governmental organisations to the so-called standard-setting private bodies. Then arises the question: while GAL posits that regulatory power-exercising bodies are regarded as the focused sites of participation by affected parties, the very private form of some power-exercising bodies in regard to global administration may hamper affected parties from participating in their related practices. For example, it is hard to know when standards or practices resulting from private bodies will be included in the body of GAL. Private standards are not created at the moment when public (inter)governmental organisations reach out to private bodies for some particular regulatory purpose. Rather, they materialise through a long process of trial and error involving the members or stakeholders of private bodies and only when they are regarded as mature will public (inter)governmental organisations incorporate them into the formal regulatory framework. In other words, it will be too late for affected parties to participate in their formation if we follow GAL’s criteria of deciding the sites of publicness by reference of existing regulatory power-exercising bodies.

This also underlies my concern about Karl-Heinz’s interesting application of internal administrative law to GAL. Inspired by Professor Jerry Mashaw, Karl-Heinz rightly points out the important role administrative agencies have played in forming legal norms concerning administration in terms of the evolution of national administrative law. Principles and rules of administrative law pronounced by courts or codified in statutes cannot be adequately grasped without knowledge of how they have been carried into practice by administrative agencies. Taken together, legislature, administration, and courts are the sites where knowledge is produced in the long learning process that underlies the operation of the law. The trust we have in the role of administrative agencies in producing the underlying knowledge of the operation of administrative law turns on the organisational, procedural, and personnel composition of the administration.

Yet, as Karl-Heinz notes, in the globalising legal landscape, legislature and administration are blurred and the role of courts is negligible. Lacking such a structure, the learning process as he perceptively portrays in the domestic context simply breaks down in the global context. Moreover, as types of global administration are so diverse and well beyond the traditional understanding of administrative agencies in administrative law, we need to be more cautious about the ‘knowledge’ flowing from these unconventional, informal, private regulatory bodies.

The issues arsing from the regulatory publics in the fragmented globalising legal landscape and the corresponding question of publicness—where to participate—also point to the second question raised in both Karl-Heinz’s and David’s responses. The second question is about who the participants are. From what I call ‘model world citizens’, Karl-Heinz infers that I have reproduced the state model at the transnational level by missing the phenomenon of ‘disaggregating state’ as Professor Anne-Marie Slaughter has famously noted. Instead of referring to the state, my point is that the model world citizen as portrayed in GAL is epitomised by regulatory officials with expertise and experience in diffuse administrative agencies. In this regard, both Karl-Heinz and David converge on their optimistic attitude towards bureaucratic and professional rationalities.

In contrast, my trust in these model citizens and their representative expertise is less robust than both Karl-Heinz and David. As both of them rightly note, exclusion of participation is a central concern in global governance especially considering the interconnectedness of regulatory issues. Still, by focusing on individual regulatory field with no central coordinating administration, GAL falls short of addressing the spill-over effects of one regulatory field to another. As a consequence, affected parties of the second regulatory field are excluded from the processes leading to the decision made in the first regulatory field. This issue is not resolved because the participants coming from the administrative agencies or professional groups are equipped with professional expertise or on-site experiences. On the other hand, while expert or professional participants may generate a richer deliberation, it remains an unsettling issue how to decide on rival expertise flowing from diverse groups.

Both questions—where to participate and who the participants are—centre on the issue of legitimacy, pointing to the third and major concern raised by Karl-Heinz and David: Is GAL of constitutional significance?

As both Karl-Heinz and David emphatically point out, GAL is only related to the emerging scholarship on global constitutionalism in a very remote way at best. While Karl-Heinz insightfully observes that GAL suggests ‘a law that is generated “bottom-up” by a network of overlapping practices’ as opposed to global constitutionalism, David points out that nearly all GAL scholars disavow any constitutional ambition.

I don’t deny their observation. The reason why I have looked at GAL in constitutional light is that the legitimacy issue inevitably looms large from the claims made by GAL. In claiming that GAL can somehow alleviate, albeit not cure, the legitimacy deficit concerning global governance, GAL faces a dilemma. What is the nature of the part of the legitimacy deficit that GAL has decided to leave out? To address this issue, it would have to step into the uncharted waters of global constitutionalism. To leave this issue out as it has, it needs a theoretical anchor to sustain its position. To put it simply, by the very partition of legitimacy question, I suspect that GAL has already spoken of constitutionalism beyond the state albeit in a ventriloquial way.

Echoing Karl-Heinz’s suggestion, I push this line of thought further in order to (re)think the legal universe in our globalising world in a way that would transcend the epistemic boundary separating different disciplines such as GAL and global constitutionalism. From there, there are two ways ahead. One way to look at GAL in constitutional light is to follow the original intent of GAL scholars. Paralleling the domestic context, GAL located itself in the sphere of non-constitutional, administrative law. Yet, this seems to imply a rerun of state constitutionalism or a state legal system on a global scale, contradicting GAL’s innovative project of envisaging the globalising world as a global administrative space that transcends the nation-states. Unfortunately, as Karl-Heinz’s and David’s critiques indicate, constitutional theory rooted in the experiences of nation-states is still gripping on our legal thinking even for those who have no problem recognising the emergence of a globalising legal landscape. Considering the brave new world of ‘politics’ in GAL, the constitutional (if any at all) implications from GAL can not be brought into the fold of political constitutionalism, which is rooted in the context of national constitutionalism.

The other way is to rethink the implied constitutionalism in GAL in a different way. That’s what I have tried to do in my NYUJILP piece. Still, a note of caution (or rather confession) should be made explicitly. In recasting GAL as a small-c global constitutionalism, I haven’t yet completely liberated myself from the grip of constitutional thinking matured in the soil of the national experiences of state constitutionalism. Still, my central concern is about the implications from the legitimacy deficit-alleviating effect of GAL, regardless of whether they are termed constitutional.
Both Karl-Heinz’s and David’s critical views on my position are definitely constructive in this long, meandering pursuit of liberation, if possible at all! For this reason, I may not do full justice to GAL. Yet, GAL is to be thriving more than it is if it addresses this important issue yet to be addressed with the interlocution from outside. I believe that like myself, Karl-Heinz and David have happily agreed to join this outside interlocution with GAL!