IILJ Working Paper 2008/7 (Global Administrative Law Series)

Accountability and the Concept of (Global) Administrative Law

David Dyzenhaus

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Participants in the debate about global administrative law (GAL) generally make an explicit or implicit decision to inquire into the GAL phenomenon by bypassing the question of the concept of GAL, by which I mean they choose to avoid the question of its status as law. This is not to say that there has been no theoretical work done on GAL. Rather, theorists have adopted a deliberately pragmatic stance: they ask theoretical questions about how to make GAL work rather than about the conceptual question of its status. Their central question is: “Given the existence of global administrative agencies that are in the business of making binding decisions, how can we ensure that the agencies are accountable to the various constituencies affected by their decisions?” I propose in this paper adoption of a different question, framed by attention to Lon L. Fuller’s work on legality. “Do the practices of GAL exhibit sufficiently the formal features of law — those that make administrative law, but also every other kind of law, legal?” That question forces a focus beyond the GAL project’s predominant concern with “procedural administrative law”, understood as procedures that make bodies accountable to various constituencies. The wider focus looks to both the legality of the substantive decisions (whether they are “substantive administrative law”), and to the authority of the bodies that make them (where “constitutive administrative law” is located). In regard to the second issue, the interesting question arises whether there can be self-constituting public authorities, that is, bodies whose public legal nature is not owed to any positive constitutive source such as a statute, but to the fact that its decisions are regarded as legally binding. I also argue that for GAL the problem that arises in global space for its status as law is not the absence of a global demos, but the absence of a global state. I suggest that even the second absence is not a serious obstacle in the way of GAL becoming law.