On the constitutional question in global governance: Global administrative law and the conflicts-law approach in comparison

Abstract

Original citation:Kuo, Ming-Sung. (2013) On the constitutional question in global governance : global administrative law and the conflicts-law approach in comparison. Global Constitutionalism, Volume 2 (Number 3). pp. 437-468. ISSN 2045-3817 Permanent WRAP url: http://wrap.warwick.ac.uk/56911/ Copyright and reuse:The Warwick Research Archive Portal (WRAP) makes this work by researchers of the University of Warwick available open access under the following conditions. Copyright © and all moral rights to the version of the paper presented here belong to the individual author(s) and/or other copyright owners. To the extent reasonable and practicable the material made available in WRAP has been checked for eligibility before being made available.Copies of full items can be used for personal research or study, educational, or not-forprofit purposes without prior permission or charge. Provided that the authors, title and full bibliographic details are credited, a hyperlink and/or URL is given for the original metadata page and the content is not changed in any way. Publisher's statement: © Cambridge University Press, 2013 A note on versions:The version presented in WRAP is the published version or, version of record, and may be cited as it appears here. Abstract :The question of constitutionalization cuts through the heart of theoretical debate on the fragmentation of global governance. This paper aims to contribute to this debate through a comparison of global administrative law (GAL) and the confl icts-law approach. While the confl icts-law approach espouses the move towards global constitutionalism, GAL disavows constitutional ambition. I make a twofold argument. First, the differing diagnoses these two approaches make of global governance lead to their distinct proposed solutions. GAL identifies the lack of accountability as the underlying concern of global governance and responds to fragmented global governance through balancing-centred legal management. The conflicts-law approach instead attributes the challenges facing global governance to the ill-designed democratic institutions in nation states and turns to 'democratic juridification' as the solution. Second, GAL and the conflicts-law approach reflect two distinct images of constitutionalism. GAL's 'constitutional deficit' suggests its implicit embrace of a version of constitutionalism rooted in the tradition of populist democracy. The conflicts-law approach situates transnational democracy in the confl icts-law process in which inter-regime confl icts are resolved, suggesting a prototype of constitutionalized global governance underpinned by an epistemic understanding of democracy.

Law–Space Nexus, Global Governance, and Global Administrative Law

“…Notably, not all global regulatory norms can be classed as global administrative law. For a comparison of GAL and other normative approaches to global governance, see, eg, Kuo 2013;Walker 2014. answer both the practical and normative issues of global governance with no worldwide lawmaking authority in sight. As the experience of the emergence of the modern regulatory state at the turn of the twentieth century shows, discretion is essential for administrative agencies to accomplish their tasks.…”

Pursuing legal certainty in multilevel regulation : a sociolegal study of medical device and pharmaceutical regulation in Europe

“…And, on the other hand regulation refers to the control of private behaviour by public agencies to ensure that public interest is not violated within specific fields of delivery of goods and services. 146 This control is achieved via a body of administrative rules. The term is also used in the context of self-controlling behaviour by private entities -self-regulation.…”