The Concept of 'Law' in Global Administrative Law

TLDR

Global administrative law (GAL) is defined by a “social fact” conception of law that emphasizes publicness—adherence to legality, rationality, proportionality, rule of law, and human rights—though no single rule of recognition unifies the field, a workable concept of law nevertheless exists. The article proposes a Hartian positivist, “social fact” conception of law that incorporates publicness as a requirement. It examines how publicness criteria are increasingly applied in judicial review, reason‑giving, and transparency practices of global governance entities. The study finds that stronger adherence to publicness limits reliance on established legal sources, and that private ordering is only recognized through engagement with public institutions.

Abstract

What constitutes 'law' in the efflorescent field of 'global administrative law'? This article argues for a 'social fact' conception of law, emphasizing sources and recognition criteria, but it extends this Hartian positivism to incorporate requirements of 'publicness' in law. 'Publicness' is immanent in public law in national democratic jurisprudence, and increasingly in global governance, where it applies to public entities rather than to identifiable global publics. Principles relevant to publicness include the entity's adherence to legality, rationality, proportionality, rule of law, and some human rights. This article traces the growing use of publicness criteria in practices of judicial-type review of the acts of global governance entities, in requirements of reason-giving, and in practices concerning publicity and transparency. Adherence to requirements of publicness becomes greater, the less the entity is able to rely on firmly established sources of law and legal recognition. 'Private ordering' comes within this concept of law only through engagement with public institutions. While there is no single unifying rule of recognition covering all of GAL, there is a workable concept of law in GAL.