Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism
[Ming-Sung Kuo is an Assistant Professor at the University of Warwick Law School.]
The project of global administrative law has stood out from the various efforts to tame global governance with the rule of law. By enhancing transparency and accountability, global administrative law is expected to improve the policy output of global administration, giving legitimacy to global governance. In this way, global administrative law evolves into a small-c global constitutionalism. In this paper, I trace the trajectory of global administrative law as small-c global constitutionalism and how the concept of legitimacy is recast in relation to global governance. I first point out that originally embedded in the practice of global governance, global administrative law effectively functions as the small-c constitutional law of global governance, echoing the trends toward constitutionalization. As it takes on constitutional character, however, global administrative law faces the challenges of legality and legitimacy. Turning away from state consent, global administrative law turns to the idea of publicness as the solution to its double challenges. My inspection of the notion of publicness in global administrative law shows that the strategy of resting the legitimacy of global administrative law as small-c global constitutionalism on the idea of publicness turns out to be the privatization of legitimacy, suggesting a post-public concept of legitimacy.
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