The Emergence of Global Administrative Law and Transnational Regulation

The Emergence of Global Administrative Law

and Transnational Regulation

Karl-Heinz Ladeur*

Abstract

Discussion of the emergence of global administrative law is centred around the question ‘Is it law?’ and problems of accountability. This is a narrow perspective which ignores the autonomy of administrative ‘internal law’ generated by administrative agencies themselves. The extent to which domestic administrative law is a product of courts or legislators is much less significant than has hitherto been taken for granted. For global administrative law the entanglement of administrative practice and normativity is crucial. The creation of administrative law through an experimental network of decisions and public-private cooperation, and as a consequence its ongoing self-trans-formation, should be considered a necessity. This is why it should not come as a surprise that the instruments and forms of global administrative law are generated by transnational administrative networks of agencies. The evolution of both domestic and transnational administrative law will allow for new heterarchical forms of accountability and legitimation once the focus on a hier-archical concept of delegation is given up. For both domestic and global administrative law the adoption of new approaches to ex post monitoring of administrative action and learning seems to be more promising than the traditional focus on the binding force of legal rules ex ante.

1. The evoluTIon oF posTmoDern DomesTIc aDmInIsTraTIve law as The backgrounD

To ITs globalIsaTIon

In this paper, the hypothesis will be developed that the notion of a homogeneous global society in which a kind of global state has more or less the same attributes as the terri-torially limited state is not a realistic perspective. It leads to an assumption of too much unity in the legal order—at least as an aim to be accomplished in the long run. at the same time, in reverse perspective, it epitomises legitimacy1 as the primary focus of a legal

* emeritus professor of public law, university of hamburg; Distinguished bremen professor, bremen International graduate school of social sciences, germany. email: [email protected]. all websites accessed 29 December 2012.

1 David Dyzenhaus, ‘accountability and the concept of (global) administrative law’ [2009] Acta Juridica 3.

(2012) 3(3) TlT 243–267DoI: http://dx.doi.org/10.5235/20414005.3.3.243

244 Transnational Legal Theory

theory of global law.2 opposing this conception, a theoretical perspective can be designed which takes the network-like fragmented character3 of the law as it is, and epitomises—so to speak—the ‘internal side’ of the self-organisation of the legal system, and does not try to derive legitimacy from some higher order of law (constitution of the state or the world society).4 an examination of this process by means of legal theory would attempt to analyse the self-construction or the ‘auto-constitution’ of a legal order of networks. In order to further illustrate the scope and direction of this approach, the task would be to test this idea in the context of the better-known historical process of the evolution of modern administrative law; such an inquiry might allow us to ascertain an overarch-ing evolutionary tendency as inherent in the entire body of domestic, transnational and global law, in particular, which could shed new light on the evolution of global admin-istrative law. however, such an undertaking would go beyond the limits of the present paper. nevertheless, the hypothesis may be ventured that domestic administrative law is not so much a product of the legislators or the courts; rather, it is emerging to a signifi-cant degree from the administration itself. The paradigms of domestic administrative law have changed in recent decades from constructing and deciding individual ‘cases’ to industry-related ‘regulation’.5 a new model of administrative action is emerging which is characterised by much more uncertainty and, as a consequence, by experimentation and learning. This constellation can be labelled ‘postmodern’ inasmuch as it seems to be a consequence of a general transformation of culture.6 with regard to both transnational and domestic law, governance must be ‘retooled’, as Jody Freeman and martha minow have formulated the challenge of new forms of public-private cooperation.7

2 benedict kingsbury, ‘The concept of “law” in global administrative law’ (2009) 20 European Journal of International Law 23; benedict kingsbury and stephan schill, ‘Investor-state arbitration as governance: Fair and equitable Treatment, proportionality, and the emerging global administrative law’, nYu public law and legal Theory working paper no 14 (2009); Jerry l mashaw, ‘between Facts and norms: agency statutory Interpretation as an autonomous enterprise’ (2005) 55 University of Toronto Law Journal 497, 520.

3 see, for a further differentiation of the network concept which can easily end up as fashionable rhetoric, michael stohl and cynthia stohl, ‘human rights, nation states, and ngos: structural holes and the emergence of global regimes’ (2005) 72(4) Communication Monographs 442; a broader perspective on the role of private actors in the regulation of public interests (including ‘second order regulatory agreements’ between private corporations and not-for-profit groups) can be found in michael vandenbergh, ‘The private life of public law’ (2007) 100 Columbia Law Review 101.

4 David held, ‘The Transformation of the political community: rethinking Democracy in the context of globalization’ in Ian shapiro and casiano hacker-cordón (eds), Democracy’s Edges (cambridge univer-sity press, 1999) 84; Jonathan cohen and charles F sabel, ‘global Democracy?’ (2005) 37 NYU Journal of International Law and Politics 763.

5 For the early development of regulation see edward l glaeser and andrei shleifer, ‘The rise of the regula-tory state’ (2003) XlI Journal of Economic Literature 401.

6 see generally karl-heinz ladeur, Postmoderne Rechtstheorie (Duncker & humblot, 2nd edn 1995); karl-heinz ladeur, ‘post-modern constitutional Theory: a prospect for the self-organising society’ (1997) 60 Modern Law Review 617.

7 see ‘Introduction: reframing the outsourcing Debate’ in Jody Freeman and martha minow (eds), Govern-ment by Contract: Outsourcing and American Democracy (harvard university press, 2009) 1, 19.

245The Emergence of Global Administrative Law and Transnational Regulation

against the background of this assumption of the self-transformation of the normative systems of society assumed here, a new perspective on the rise of the new ‘international’ or ‘global administrative’ law—leaving aside private law in the narrower sense—seems possible: on the one hand, it would appear to be productive to consider that the network-like character of this new transnational administrative law is not a completely new phenomenon. Instead, it may be described as a continuation of the frag-mentation and, as a consequence, the increasingly loose coupling of the different layers of the normative system of postmodernity which can be observed at the domestic level. once the domestic legal system is challenged by the requirement that more and more fragmentation and differentiation are allowed in the network of norms, the transnational expansion of its reproduction no longer seems so incompatible with the logic of the legal system that had to give up its ‘unity’ as a paradigm of reference long before.8 afterwards, the loose coupling and the network-like structure within domestic law had to be taken into consideration and a new set of meta-rules for the internal ‘management of rules’ had to be developed. The expansion of this new hybridisation to the transnational level between states and domestic legal systems could no longer be constructed as a breach of the continuity of postmodern law; it was its continuation. This analysis is confirmed by observing the deep transformation which public international law has undergone in recent decades: its focus on the state as the main actor has been supplemented by the inclusion of domestic affairs in the focus of international law, thus making the borders of sovereignty much more open to observation and intervention by international law. The same is true of the function of public international organisations,9 which have devel-oped much more autonomy and independence from states as their ‘creators’.

2. ‘consTITuTIonalIsIng’ global aDmInIsTraTIve law or eXperImenTIng wITh a hYbrID TransnaTIonal legal orDer?

It may be going too far to assume that public international law is well on the way to ‘constitutionalisation’,10 a concept which assumes the evolution of a new meta-layer of homogenisation of the law beyond the reach of the will of the sovereign state. gunther Teubner has ventured the hypothesis of a transnational ‘civil society’ beyond both the state and traditional state-based public international law as the new ‘source’ of transna-tional autonomous law.11 This assumption even goes so far as to attribute the poten-

8 For european law see marc amstutz, ‘In-between worlds: Marleasing and the emergence of Interlegality in legal reasoning’ (2005) 11 European Law Journal 766.

9 For the evolution of administrative law of an international organisation as opposed to global administra-tive law in a stricter sense see James salzman, ‘Decentralised administrative law in the oecD’ (2005) 68 Law and Contemporary Problems 191.

10 David Dyzenhaus, murray hunt and michael Taggart, ‘The principle of legality in administrative law: Internationalisation as constitutionalisation’ (2001) 1 Oxford University Commonwealth Law Journal 5.

11 gunther Teubner, ‘self-constitutionalization of Transnational corporations? on the linkage of “private” and “public” corporate codes of conduct’ (2011) 17 Indiana Journal of Global Legal Studies 617; gunther


tial of self-constitutionalisation12 to this transnational civil society. Teubner aligns the reflexive mechanisms of self-control and revision of this new layer of the normative order with the secondary norms that hla hart defined as constitutive for the stabilisa-tion of positive law in general.13 This approach ignores the variety of social and legal norms, the diversity of patterns of coordination between each of them, and the pro-liferation of legal effects from case to case in state and international law. we have to recognise that administrative agencies—as ‘communities of practice’ in which learning is operationalised—generate not only ‘knowledge’, but also commitments, attestations and trust, without which knowledge is incapable of being connected to anything.14 Jerry mashaw15 has convincingly argued that doubts as to the ‘lawness’ of global administra-tive law stem from the same origin as conventional ignorance of the generative power of administration, which manifested itself in the emergence of ‘internal administrative law’ in the nineteenth century. with reference to administrative agencies that have to operate with an internal perspective of creating a layer of self-binding and self-reflexive rules, on the one hand, and with an outside view to other private and public actors, on the other, one can speak of a domain of ‘internal law’. The theoretical conception of this article begins from the premise that the general forms of administrative law have always been generated by administrative actors themselves. This is due to the future orientation of (post-)modern societies and their legal systems: in an experimental societal order both private actors (under the umbrella of the autonomy of contracts) and public adminis-trators need to develop basic forms of legal action by themselves rather than depending on delegation from the legislator. only in a second step in the evolution of basic para-digms of law is a concept of delegation of power imaginable. This is valid for the liberal ‘society of individuals’ and its reference to a distributed concept of ‘experience’ based on

Teubner, ‘constitutionalising polycontexturality’ (2010) 19 Social and Legal Studies 17; gunther Teubner, ‘The corporate codes of multinationals: company constitutions beyond corporate governance and co-Determination’ in rainer nickel (ed), Conflict of Laws and Laws of Conflict in Europe and Beyond (Intersentia, 2010) 203; see also Jean-marie guéhenno, The End of the Nation State (university of minnesota press, 1995) 100.

12 see gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (oxford university press, 2012); for conceptual doubts see nico krisch, ‘postnational constitutionalism? Discussion Draft’, 2008, www.iilj.org/courses/documents/krisch.Ideaofconstitutionalism.pdf.

13 see also kingsbury (n 2).14 Jutta brunnée and stephen J Toope, ‘International law and constructivism: elements of an Interactional

Theory of International law’ (2000) 39 Columbia Journal of Transnational Law 17; see also paul F Diehl and charlotte ku, The Dynamics of International Law (cambridge university press, 2010) 67.

15 Jerry l mashaw, ‘Federal administration and administrative law of the gilded age’ (2010) 119 Yale Law Journal 1413, 1461; the concept goes back to bruce wyman, The Principles of Administrative Law Governing the Relations of Public Officers (keefe-Davidson, 1903). see also niklas luhmann, ‘Die paradoxien des entscheidens’ in Friedrich balke and urs stäheli (eds), Paradoxien der Entscheidung: Wahl/Selektion in Kunst, Literatur und Medien (Transcript, 2003) 17, 43; for a more general historical background to the autonomous creation of general administrative law by administrative actors themselves, see karl-heinz ladeur, ‘The evolution of general administrative law and the emergence of postmodern administrative law’, osgoode clpe research paper 16/2011, http://ssrn.com/abstract=1792062.


private action, and its observation and reformulation in a logic of public action (‘admin-istrative act’). The experimental character of society underlies a process of continuous and disruptive transformation that creates new forms of private and public order once knowledge processes are shaped systematically by organisations. Following the second evolutionary phase, that of the so-called society of organisations, subsequent ‘tertiary modelling’ transforms the cognitive rationality of both private and public actors in the postmodern ‘society of networks’. This society is characterised by increasing fragmen-tation of the experimental cognitive order of society and needs, once more, new legal forms of action and coordination that have to be generated at a first stage by trial and error processes of private and public actors themselves: such processes are likely because the new forms of action cannot be conceived by external regulators without accessing the emerging new types of knowledge.

This discussion need not be taken up in detail here. what is relevant for our pur-poses is the assumption that, at both the domestic and the international levels, the preconditions for the evolution of global administrative law do not need ‘delegation’ from a constitution or statute law. at both levels, the hierarchical construction of state-based and international public law has been undermined by a tendency towards heterarchical forms of reproduction of the legal system.16 global administrative law, in particular, is confronted with the design of forms, instruments and procedures beyond the established rules of general administrative law and its inherent structuring function. ‘International’ or ‘global’ administrative law appears to be able to draw on components of both the more hybrid, loosely coupled type of the law of networks, which emerges at the domestic level, and the new public international law which shatters the hitherto clearly established separation from state-based law. as Daniel esty has assumed, global administrative law can provide the necessary ‘connectedness’ between different transna-tional arenas of decision-making.17

This perspective allows for a more differentiated look at the new layer of a net-work type of transnational law, and introduces new arguments to the discussion of the conception of an adequate system of meta-rules. These assist in formulating new requirements for the coordination of different transnational networks as such,18 and, in a vertical sense, in comparing transnational and domestic networks of regulation in

16 For a new approach to the state in postmodern societies see François moreau, ‘The role of the state in evolutionary economics’ (2004) 28 Cambridge Journal of Economics 847 (the state as a ‘moderating’ agency).

17 The role of procedure in administrative law should not be regarded as an illegitimate surrogate for appro-priate democratic hierarchical empowerment; it is a necessary component of a procedural rationality of decision-making which has to meet the challenge of uncertainty. see also Daniel c esty, ‘good governance at the supranational scale: globalizing administrative law’ (2006) 115 Yale Law Journal 1490.

18 christian Tietje, ‘Internationalisiertes verwaltungshandeln’ (2008) 39 Rechtstheorie 255, 275; anne-marie slaughter, A New World Order (princeton university press, 2004) 40, 43 (‘transgovernmental networks’).


particular.19 The complexity of the new global order and its fragmented cognitive ‘pool of variety’ brings to the fore a new dependence of public law on the activities of pri-vate firms, and their technological expertise in particular.20 with regard to the effects of decision-making on third parties, there is a considerable need to strengthen the coop-erative dimension between transnational and domestic administrative law,21 especially in light of the significance of the proceduralist dimension of complex administrative decision-making and global coordination (as illustrated, for example, by the case of health standards22), and close scrutiny of implementation processes is crucial. It is here that we can frequently witness instances of direct interference with individual rights by the implementation process. as alfred aman has argued—with good reason—adminis-trative law can mitigate the democracy deficit of public-private cooperation both at the transnational and at the domestic level.23 This approach might be a productive mode of managing the unavoidable indeterminacy of the permanent self-transformation of society by a shifting of institutional design towards checks and balances.24

The description of the emergence of the ‘society of networks’ appears to cast some-thing of a shadow over a systems-theoretical assumption according to which the rise of the problems attributed to the globalisation process may be regarded as a consequence of the ‘maximisation of the eigenrationality’ of specialised societal functional systems, and of the economy in particular.25 This assumption does not seem to sit comfortably with the hypothesis of the auto-constitutionalisation of the global civil society in its ‘own right’ (beyond the state).26 Instability among functional systems (politics, law and economy in particular) is a phenomenon which is characteristic of the acentric society27 and the permanent ‘unrest’ that it creates. and the political problems that are attributed to globalisation at both the domestic and global levels cannot be reduced to a mere

19 This includes the possibility of applying domestic administrative law to transnational transactions. on the relationship between global administrative law and traditional international law see sabino cassese, b carotti, l casini, m macchia, e macdonald and m savino, Global Administrative Law: Cases, Materials, Issues (Irpa/IIlJ, 2nd edn 2008), XXv, www.iilj.org, 57; christian Tietje, Internationalisiertes Verwaltungs-handeln (Duncker & humblot, 2001) 50 ff.

20 Johannes m bauer, ‘governing the networks of the Information society: prospects and limits of policy in a complex Technical system’, Institute of Technology assessment, wpITa 04-03 (2004).

21 eberhard schmidt-aßmann, ‘The Internationalization of administrative relations as a challenge for administrative law scholarship’ (2008) 9 German Law Journal 2061.

22 harm schepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets (hart publishing, 2005).

23 alfred c aman Jr, ‘privatization and Democracy: resources in administrative law’ in Freeman and minow (n 7) 264, 276.

24 russell hardin, Indeterminacy and Society (princeton university press, 2003) 128.25 gunther Teubner, ‘The anonymous matrix: human rights violations by “private” Transnational actors’

(2006) 69 Modern Law Review 327; see also niklas luhmann, Die Gesellschaft der Gesellschaft (suhrkamp, 1997) 1088.

26 gunther Teubner, ‘Fragmented Foundations: societal constitutionalism beyond the nation state’ in mar-tin loughlin and petra Dobner (eds), The Twilight of Constitutionalism? (oxford university press, 2010) 327.

27 see Daniel parrochia, ‘sur quelques modèles non-hiérarchiques du politique’ (2001) 6(2) CITÉS 93.


quantitative change in the impact of the political system and its coordination with the economic system in particular. It is also a consequence of a self-produced lack of learning capabilities, which attributes the permanent failures of public policies only to ‘neo-lib-eralism’ and not to political slack. The focus on the evolution of the knowledge base of society as the ‘pool of variety’, whose distributed dynamic character puts each system under permanent stress and is open to evolutionary processes which proliferate across the borders of all functional systems, allows for a more differentiated description of the network logic that transcends both territorial and functional borders. This is due to the fact that there is a close link between the knowledge system and societal institutions.28 The hypothesis that legal fragmentation is one of the consequences of a general trend towards the maximisation of the ‘eigenrationalities’ of functional systems, in this case the legal system (not the economic system, which is the ‘usual suspect’), appears doubtful.29 From the perspective just offered, this new phenomenon results from the transforma-tion of the societal knowledge system and its interrelationship with the legal system.

particular emphasis should be placed on the question of the ‘sources’ of the emerg-ing regulatory order. arguably, the new relational ‘rationality of networks’ can no longer be regarded as being ‘deposited’ in a canonical (legal) text;30 instead, legal meaning must be generated from several overlapping texts and contexts of practice in an experimental approach that comprises both the domestic and the transnational realms.31

3. The new logIc oF cooperaTIon— DomesTIc anD TransnaTIonal

The emergent heterarchical normative ‘network of networks’32 functions on the basis of structured and focused, distinctly project-like cooperation.33 an additional feature is the

28 Joel mokyr, The Gifts of Athena: Historical Origins of the Knowledge Economy (princeton university press, 2002) 103.

29 The second example of a one-sided maximisation of a functional rationality is even less convincing: christian opposition to birth control (maximisation of the ‘eigenrationality’ of the religion) is blamed for the growth of the population in many parts of the world: apparently this is in the present primarily a problem for non-christian societies; in the past catholic opposition to birth control did not prevent believers from circumventing this doctrine quite successfully.

30 see in a sociological perspective albert ogien, ‘le double sens de l’interprétation’ (2000) 26 Revue Suisse de Sociologie 485, 498.

31 on the consequences for fragmented regulation see Julia black, ‘constructing and contesting legitimacy and accountability in polycentric regulatory regimes’ (2008) 2 Regulation and Governance 137, 145.

32 see also Jean-marie guéhenno, L’avenir de la liberté (Flammarion, 1999) 56 (‘aggregates of networks’); this is why more traditional approaches which tend to look at global law through the lens of the well-ordered legal system of the nation state and which hope for a cooperative venture of a plurality of states to restructure the emerging legal pluralism miss the point; cf mireille Delmas-marty, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (hart publishing, 2009).

33 The cooperation of courts is much more difficult, and mutual citations tend to be overestimated; a differ-ent version of cooperation and network formation in the globalised jurisprudence of courts can be found in the very variously marked readiness to refer in their reasoning to courts of other countries. see eyal ben-


pertinence of mutual observations within communities of limited scope. what follows from this constellation is a relational rationality34 which arises from the combination of a multiplicity of perspectives and from the modelling of a multi-layered complex spatial and contextual order.35

In this respect, the comparison of the old and new lex mercatoria is quite plausible, though the trust generated by cooperation is no longer based on personal acquaintance and confidence but on a functional web of interrelationships among strangers.36 In this sense, the new network-based relational rationality is itself a product of the rationale of the legal system and of its ability to process and support impersonal relationships. at the same time, public law is by no means a ‘quantité négligeable’,37 but still has an important role to play, because the state—particularly administrative agencies as well as

venisti, ‘reclaiming Democracy: The strategic uses of Foreign and International law by national courts’ (2008) 102 American Journal of International Law 241, 263; on the coordination of different regimes for the protection of constitutional liberties see anne peters, ‘Die anwendbarkeit der emrk in Zeiten komplexer hoheitsgewalt und das prinzip der grundrechtstoleranz’ (2010) 48 Archiv des Völkerrechts 1; anne-marie slaughter, ‘a global community of courts’ (2003) 44 Harvard International Law Journal 191; anne-marie slaughter and David T Zaring, ‘The use of Foreign Decisions by Federal courts: a comparative analy-sis’ (2006) 3 Journal of Empirical Legal Studies 297 (the impact of this version of judicial cooperation is overtaxed by the authors; it has only marginal importance in the larger states); anne-marie slaughter and william burke-white, ‘The Future of International law is Domestic’ (2006) 47 Harvard International Law Journal 1; helen keller and alec stone sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (oxford university press, 2009); for a critique see eric posner and John Yoo, ‘Judi-cial Independence in International Tribunals’ (2005) 93 California Law Review 1; see also miguel poiares maduro, ‘courts and pluralism: essay on a Theory of Judicial adjudication in the context of legal and constitutional pluralism’ in Jeffrey l Dunoff and Joel p Trachtman (eds), Ruling the World? Constitutional-ism, International Law, and Global Governance (cambridge university press, 2009) 377; ‘cooperation’ can also mean mutual correction beyond traditional rules of international law in cases where ‘interlegal’ or ‘interadministrative’ cooperation is not explicitly supported by coordination of judicial protection. see conseil d’etat, 9 June 1999, no 198344, mme hamssaoui: an illegal german administrative act binds a French administrative decision-maker (asylum case); as a consequence judicial protection against the French decision has to include in one way or another the competence of the French court to control the german administrative act. on the basis of administrative acts this permeability of sovereignty is estab-lished by mutual recognition of administrative decisions. see kalypso nicolaidis and gregory shaffer, ‘managed mutual recognition regimes: governance without global government’ (2005) 68 Law & Con-temporary Problems 253; matthias ruffert, ‘The Transformation of administrative law as a Transnational methodological project’ in matthias ruffert (ed), The Transformation of Administrative Law in Europe: A Transnational Methodological Perspective of Reform/La mutation du droit administratif en europe—une perspective transnationale et méthodologique de réforme (european law publishing, 2007) 3.

34 For a theoretical perspective see rudolf stichweh, ‘Das konzept der weltgesellschaft. genese und struk-turbildung eines globalen gesellschaftssystems’ (2008) 39 Rechtstheorie 329, 340; in english: ‘evolutionary Theory and the Theory of world society’, www.unilu.ch/files/evolutionary-theory-and-world-society.pdf.

35 see carole lypsyc, ‘construction de la perspective, construction du sens’ (2009) 85 Communications 37, 41; sophie lavaud-Forest, ‘perspectives numériques, variabilités, interactions, univers distribués. À la décou-verte de perspectives renouvelées’ in ibid, 55, 62.

36 paul s adler, ‘market, hierarchy and Trust: The knowledge economy and Future of capitalism’ (2001) 12(2) Organization Science 215, http://orgsci.journal.informs.org/content/12/2/215.full.pdf+html.

37 christoph möllers, ‘Transnational constitutionalism without a public law?’ in christian Joerges, Inger-Johanne sand and gunther Teubner (eds), Transnational Governance and Constitutionalism (hart publishing, 2004) 329.


international organisations—remain major players in the transnational legal process.38 as mentioned above, the problem with the new ‘net based’ law can be seen in the fact that the consideration of outsiders both within networks and outside them is precari-ous under the new logic of networks. In this respect, the role of state-based traditional law, and constitutional law in particular, is still crucial as a source of legitimacy for legal restrictions on individual rights.

The same is true for domestic administrative law:39 the new forms of transnational cooperation both among state agencies40 and among the latter and private actors41 are legitimate as long as they remain limited to the impact on the networks of interrelation-ships as such.

once they have an impact on the rights of outsiders (consumers, smaller firms, etc), in some way or another, a link between transnational law42 and domestic public or pri-vate law can find its basis in domestic law.43 The same is true for public accountability

38 see benedict kingsbury and lorenzo casini, ‘global administrative law Dimensions of International organizations law’ (2009) 6 International Organizations Law Review 319 for the rationality potential of an ‘inter-public’ approach to emerging ‘global administrative law’. In the same vein see eyal benvenisti, ‘The Interplay between actors as a Determinant of the evolution of administrative law in International organizations’ (2005) 68 Law & Contemporary Problems 319; richard b stewart and michelle ratton sanchez badin, ‘The wTo and global administrative law’, nYu public law and legal Theory working paper no 166 (2009), 25.

39 on the coupling of global and domestic administrative law see stewart and badin, ibid,10.40 For the perspective of german administrative law see christoph möllers, ‘Transnationale behördenko-

operation. verfassungs- und völkerrechtliche probleme transnationaler administrativer standardsetzung’ (2005) 65 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 351; christoph möllers, ‘Die governance-konstellation: Transnationale beobachtung durch öffentliches recht’ in gunnar Folke schuppert and michael Zürn (eds), Governance in einer sich wandelnden Welt, Politische Vierteljahresschrift, special Issue no 41 (2008) 238; claudio Franzius, ‘warum governance?’ (2009) 42 Kritische Justiz 25, 30.

41 on exchange of information as a focus of transnational cooperation of public agencies see n 40; anne-marie slaughter, ‘The accountability of government networks’ (2001) 8 Indiana Journal of Global Legal Studies 347; karl-heinz ladeur, ‘Toward a legal concept of a network in european standard-setting’ in christian Joerges and ellen vos (eds), EU Committees: Social Regulation, Law and Politics (hart publishing, 1999) 155; see also peter m haas, ‘Introduction: epistemic communities and International policy’ (1992) 46 International Organization 1; for standard-setting see walter mattli, ‘public and private governance in setting International standards’ in miles kahler and David a lake (eds), Governance in a Global Economy (princeton university press, 2003) 199; James a caporaso, ‘Democracy, accountability, and rights in supranational governance’ in ibid, 361; robert o keohane and Joseph s nye Jr, ‘redefining accountability for global governance’ in ibid, 386; on investment treaties see rudolf Dolzer, ‘The Impact of International Investment Treaties on Domestic administrative law’ (2006) 37 NYU Journal of International Law and Politics 953.

42 on the development of this concept see philip c Jessup, Transnational Law (Yale university press, 1956); for a (positive) valuation in retrospect see christian Tietje, alan brouder and karsten nowrot (eds), Philip C Jessup’s Transnational Law Revisited on the Occasion of the 50th Anniversary of its Publication, Essays in Transnational Economic Law (university of halle-wittenberg, 2006).

43 on the relationship between global and domestic administrative law see ming-sung kuo, ‘between Fragmentation and unity: The uneasy relationship between global administrative law and global con-stitutionalism’ (2009) 10 San Diego International Law Journal 439; for a description and analysis of a kind of ‘meta-networking’ among different types of actors institutionalised at different hierarchical levels see christoph möllers, ‘globalisierte verwaltungen zwischen verselbständigung und Übervernetzung’ (2008) 39 Rechtstheorie 217, 228.


in a democratic sense:44 a narrow approach of reducing any kind of impact on the rights of others to a quasi-public interference which needs a delegation of regulatory power45 misses the point, ie, the autonomy of the civil society which includes a ‘power’ to gen-erate norms in the sense described above, which has always been an essential element of societal self-organisation. at the same time, the state-based legal system has always fulfilled the function of overseeing the functionality of the knowledge base as such. In addition, it has assumed the role of a universal core function of positive law which itself consists in the preservation of openness and diversity (competition,46 plurality of opin-ions etc), as well as of a coupling between different versions of social norms on the basis of the rationality of the impersonal legal system of interrelationships as such.47

4. how DemocraTIc Is global aDmInIsTraTIve law?

as its proponents have frequently reiterated, one of the pertinent, driving motivations behind the study of ‘global administrative law’ has been the perceived democracy deficit of international economic and financial institutions.48 but, the democratic function of law—in general—should not be overtaxed.49 on the one hand, we are confronted with cases where the state is seen to be directly interfering with clearly defined individual rights and where the legitimation of a parliamentary statute is definitely required. on the other hand, this requirement cannot be extended without limitation to the participation of the state in the generation of the vast amount of norms of all types which transform the con-ditions for the use of rights but do not impinge upon subjective rights in the traditional sense. The new addressees of administrative action—if one can talk about ‘addressees’ at all—are increasingly the complex networks between and even within organisations. For example, global standards for financial markets may have far-reaching consequences for

44 richard b stewart, ‘accountability and the Discontents of globalization: us and eu models for regulatory governance’, draft paper presented at nYu law school hauser colloquium on globalization and its Discontents (september 2006), www.iilj.org/courses/documents/stewart.accountability9-20-06.pdf; John Ferejohn, ‘accountability in a global context’, IIlJ working paper 2007/5, global administrative law series (2007); cohen and sabel (n 4) 763; ruth w grant and robert keohane, ‘accountability and abuses of power in world politics’ (2005) 99 American Political Science Review 1, 14.

45 For a critique see kristina Daugirdas, ‘International Delegations and administrative law’ (2007) 66 Mary-land Law Review 707.

46 competition can also be used in a reflexive way to control public regulation: errol meidinger, ‘beyond westphalia: competitive legalization in emerging Transnational regulatory systems’ in christian brütsch and Dirk lehmkuhl (eds), Law and Legalization in Transnational Relations (routledge, 2007) 121.

47 on the role of the judiciary within the whole range of mechanisms for controlling accountability see edwin l Felter Jr, ‘accountability in the administrative Judiciary: The right and the wrong kind’ (2008) 86 Denver University Law Review 1.

48 bhupinder s chimni, ‘International Institutions Today: an Imperial state global state in the making’ (2004) 15 European Journal of International Law 1.

49 however, for a critique of the tendency to ‘put democracy in brackets’ when it comes to globalised law see susan marks, ‘naming global administrative law’ (2006) 37 NYU Journal of International Law and Politics 995.


the entire economic system; however, they impose direct limitations only on the banks—which participate in the process of their elaboration.

Ironically, the emergence of new globalised administrative structures and of an accompanying body of legal rules in the area of administrative law strengthen—by necessity—the autonomy of the administrative function.50 global law must increasingly be conceived of on a procedural basis, ie as law which produces its own preconditions for validity and recognition, beyond the sphere of the state51—not in any kind of a vac-uum, however, but in a fragmented context which is characterised by a random coming together of national, conventional international and self‐organised global law, on the one hand, and similarly heterogeneous cognitive rules, on the other.

on a more abstract level, the function of accountability52 and of transparency of public action must also be borne in mind.53 The state is a public function and is, as such, a ‘common stake’; this is the reason why the state has to be held responsible and account-able for all public action. however, this does not amount to a requirement of formal parliamentary ‘delegation of power’ for the multifaceted role of administration, and its cooperative and experimental dimension in the new global arena in particular.54 The accountability of administration (as opposed to the legislator) cannot be constructed in a simplistic way; instead, it should be conceived with a view to consistency in fulfill-ing its eigenrationality by promoting a rule-based type of decision-making, if only in a new experimental design.55 This rule orientation could be reformulated and remodelled at a higher level of abstraction that corresponds to the complexity of the ‘society of networks’: the state and public administration in particular must not become an indis-tinguishable component of a completely disentangled ‘network of networks’;56 there has to be a specific public role that must be defined in an experimental and procedural mode. global law must provide forms and processes which channel the ‘patternless exer-

50 see Tietje (n 18) 275.51 see charlotte ku, International Law, International Relations, and Global Governance (routledge, 2012) 13.52 on the permeability of sovereignty see slaughter and burke-white (n 33); anne-marie slaughter and

David T Zaring, ‘networking goes International: an update’ (2006) 2 Annual Review of Law and Social Science 211, 215, 223.

53 bhupinder s chimni, ‘Two Forms of global administrative law’ (2005) 37 NYU Journal of International Law and Politics 799, 802; kingsbury (n 2); kingsbury and schill (n 2) 307; william D coleman and Tony porter, ‘International Institutions, globalization and Democracy: assessing the challenge’ (2000) 14 Glo-bal Society 377.

54 see linda schultz bressman, ‘beyond accountability: arbitrariness and legitimacy in the administrative state’, vanderbilt public law research paper 02-06 (2003) (arguing that the focus on democratic legitimation is misleading and should be shifted to control of arbitrariness).

55 edward l rubin, ‘The myth of accountability and the antiadministrative Impulse’ (2003) 103 Michigan Law Review 2073, 2119.

56 For a conception of legal pluralism in postmodernity see peer Zumbansen, ‘Transnational legal pluralism’ (2010) 1 Transnational Legal Theory 141, 144, 159; oren perez, ‘normative creativity and global legal plu-ralism: reflections on the Democratic critique of Transnational law’ (2003) 10 Indiana Journal of Global Legal Studies 25.


cises of political power’57 on the one hand and private interests on the other through the stabilisation of a project‐related common understanding by limiting the range of varia-tion of possibilities or by introducing more variety. classical rule orientation would be supplemented by the increasing role of procedural and experimental design that cannot claim to have the consistency of stable, substantive rules that have been the paradigm of the liberal order. This new version of rule orientation would include a procedural com-ponent of evaluation ex post. That would allow to for the re-entry of transparency and accountability, which are difficult to establish ex ante in the process of public-private and interadministrative cooperation itself.

one should not lose sight of the pressing accountability issues as they are increas-ingly raised even in the context of private organisations.58 This interest in accountability in private organisations can be attributed at least in part to the decreasing transparency and the increasing fragmentation of private (economic) organisation. Information and knowledge are no longer present, collected and made accessible within the confines of a commonly distributed experience processed by small firms or the stable planning logic of big organisations (companies specialising in mass production or delivery of stand-ardised services). This transformation of the environment of firms has repercussions in multi-faceted approaches to ‘count[ing] the invisible’,59 for example by developing new regimes for ‘accounting’.

The fragmented character of global administrative law finds its repercussions in the fact that the constituencies to which administration might be accountable are also frag-mented: many of the targets to be tackled at the transnational level emerge beyond the state and cannot be dissolved into fragments of competencies which escape democratic state control;60 this is true, for example, of many environmental problems61 (climate change in particular62). The same goes for regulation of the internet, another challenge

57 gillian k hadfield and barry r weingast, ‘endogenous Institutions: law as a coordinating Device’, univer-sity of southern california law school, law and economics working papers series no 141 (2011), 3, 19.

58 see generally michael power, Organized Uncertainty: Designing a World of Risk Management (oxford uni-versity press, 2007) (focusing on the trend of regulating more and internal relationships of corporations); bridget hutter and michael power (eds), Organizational Encounters with Risk (cambridge university press, 2005).

59 Yong suk Jang, ‘Transparent accounting as a world societal rule’ in gili s Drori, John w meyer and hokyu hwang (eds), Globalization and Organization: World Society and Organizational Change (oxford univer-sity press, 2006) 167, 179.

60 see nico krisch, ‘The pluralism of global administrative law’ (2006) 17 European Journal of Interna-tional Law 247 (according to the author, this problem can only be solved by introducing new transnational instruments of accountability).

61 see the overview in wolfgang Durner, ‘Internationales umweltverwaltungsrecht’, in christoph möllers, andreas voßkuhle and christian walter (eds), Internationales Verwaltungsrecht (mohr siebeck, 2007) 121, 123, particularly for the relationship between domestic and international law.

62 see hari m osofsky, ‘Is climate change “International”? litigation’s Diagonal role’ (2009) 9 Virginia Journal of International Law 585, 641, discussing the intertwinement of factual and decisional networks of climate change management.


that has a distinctly global dimension. This ‘network of networks’ is a new phenomenon that has arguably never been a ‘domestic’ issue at all.

The network-like character of transnational administration finds its reverse side in the fact that the distributed power of decision-making implies a self-limitation, which might itself be used for a reformulation of the public ‘control project’. This would allow for experimentation with new heterarchical forms of ‘irritation’ through the introduc-tion of a higher degree of variety, the prioritisation of benchmarking over ‘steering’, a comparative observation of different networks, and the search for newly emerging pat-terns of coordination, as well as a sharper focus on the specific forms of procedural knowledge generation.63 In the context of domestic administrative governance, there is a consensus that accountability cannot be reduced to the control of ‘compliance’ with rules.64 The interrelationship between law and its cognitive infrastructure, which has always been of fundamental importance to the evolution of the legal system, undergoes a considerable transformation in postmodernity, finding its repercussions in, for example, new accountability regimes in so-called ‘entangled hierarchies’. These are characterised by the erosion of a clear separation between the act of setting rules on the one hand and their application on the other.65 ‘application’ increasingly transforms the incom-plete rules in practice. as a consequence, one might refer to new forms of ‘spontaneous accountability’,66 in the sense that ‘hybrid accountability regimes’,67 particularly those generated by networks, are no longer defined in advance, but are instead constituted through an experimental process of network activity that generates criteria bottom up from the observation of its operation. The same observation would in fact apply to the evolution of administrative decision-making. as a consequence, the ‘control project’, which would be conceptualised in response to the perceived need to enhance account-ability, requires reconfiguration and reformulation from the perspective of a broader concept of ‘systemic intervention’, which parts with the idea of complying with stable rules.68

63 see karl-heinz ladeur, Kritik der Abwägung in der Grundrechtsdogmatik (mohr siebeck, 2004). 64 Jerry l mashaw, ‘accountability and Intellectual Design: some Thoughts on the grammar of governance’

in michael Dowdle (ed), Public Accountability: Designs, Dilemmas, Experiences (cambridge university press, 2006) 115, 154 ff; charles F sabel, ‘learning by monitoring: The Institutions of economic Development’ in neil smelser and richard swedberg (eds), Handbook of Economic Sociology (princeton university press, 1994) 137.

65 In complex processes of ‘learning by doing’ (and this means, in administrative procedures, ‘learning by deciding’ and not just following a norm) a ‘continuous reconsideration’ of norms is unavoidable. see kath-leen noonan, charles F sabel and william h simon, ‘legal accountability in the service-based welfare state: lessons from child welfare reform’ (2006) 34 Law & Social Inquiry 523, 524.

66 colin scott, ‘spontaneous accountability’ in Dowdle (n 64) 174, 175.67 mashaw (n 64) 118. This pragmatic approach has also been used in evaluating development projects in

the ‘Third world’ that cannot be referred to clearly defined models. cf e Duflo, Expérience, science et lutte contre la pauvreté (Fayard, 2012) 26, 51, 54.

68 noonan, sabel and simon (n 65) 559.


significant consequences follow from such a description of administrative govern-ance. To begin with, this evolution appears to be, at the very least, considerably more compatible with a postmodern understanding of democracy than a concept which places at the centre the establishment of expertocratic agencies, which themselves rest on a very volatile basis of democratic delegation: such a concept, to be sure, is most fre-quently associated with the eu’s supranational integration.69 against this background, the abovementioned debate on ‘global constitutionalism’ has much in common with projections of the lost unity and sovereignty of the nation state onto a future ‘inter-national community’.70 The idea behind global constitutionalism appears to be the aspiration to re-establish the lost ability of the state to direct and control social reality on an international scale, which is depicted as a discursive space that allows for a startlingly facile resolution of conflict and contestation.71

but how should this be possible if one takes into consideration the fragmentation of both private and public spheres that has already become a hallmark of the twentieth cen-tury nation state?72 rather than dreaming of a recomposition of sovereignty in a future world state,73 it should be more promising to find new ways of managing the com-plexities of different regimes74 and their stabilisation within the confines of an emerging global administrative law. a similarly sceptical stance is in order with regard to proposals that aim at reducing such high hopes to the allegedly inferior, yet more ‘realistic’, level of committing to a fruitful cooperation of democracies.75 neither approach seems to take seriously the transformation of the legal system or the fragmentation of statehood,76 both of which have significant implications for democratic governance.77

69 klaus Ferdinand gärditz, ‘europäisches regulierungsverwaltungsrecht auf abwegen’ (2010) 135 Archiv des Öffentlichen Rechts 251, 287.

70 see in particular christian Tomuschat, ‘International law: ensuring the survival of mankind on the eve of a new century, general course on public International law’ (1999) 281 Recueil des Cours 9; and armin von bogdandy’s mild criticism in ‘constitutionalism in public International law: comment on a proposal from germany’ (2006) 47 Harvard International Law Journal 223. For a more accentuated critique, see eg peer Zumbansen, ‘comparative, global and Transnational constitutionalism: The emergence of a Tran-snational legal-pluralist order’ (2012) 1 Global Constitutionalism 16.

71 Tomuschat, ibid, 28, referring to a space in which the ‘discourse on what is right or wrong must be crystal clear’.

72 see eg Duncan kennedy, ‘The stages of the Decline of the public/private Distinction’ (1982) 130 University of Pennsylvania Law Review 1349.

73 see also the critique in richard collins, ‘constitutionalism as liberal-Juridical consciousness: echoes from International law’s past’ (2009) 22 Leiden Journal of International Law 251, 269.

74 see Ino augsberg, Tobias gostomzyk and lars viellechner, Denken in Netzwerken (mohr siebeck, 2009).75 armin von bogdandy, ‘constitutionalism in public International law: comment on a proposal from

germany’ (2006) 47 Harvard International Law Journal 223.76 see the works of the bremen research center on ‘Transformations of the state’, particularly the contribu-

tions in stefan leibfried and michael Zürn (eds), Transformations of the State? (cambridge university press, 2005).

77 This has similar repercussions in the ambivalent tendency to neglect the crisis of the state and the ensuing fragmentation of networks of decision-making for the construction of europe. see, in this regard, karl-heinz ladeur, ‘we, the european people … relâche?’ (2008) 14 European Law Journal 147.


For similar reasons, the requirement of meeting certain criteria of ‘publicness’78 as a precondition for the recognition of a norm as ‘law’ appears to be equally mislead-ing. The increasing complexity and fragmentation of the cognitive base of society has shattered the entire architecture of the differentiated normative system and has chal-lenged its consistency, in turn provoking the emergence of a new set of procedural and internal meta-rules on the ‘management of rules’ within the legal system.79 In the lib-eral society of individuals, the challenge of coordinating law and societal norms was prominent,80 but the internal rules of this coordination had been relatively stable and could remain almost invisible. This was no longer the case in the ‘society of organi-sations’, which induced a secondary modelling of the institutional structure of liberal society.81 administrative law had to adapt the framing of public intervention that had developed on the basis of stable experience in the ‘society of individuals’ to dynamic and sophisticated cognitive models of ‘big subjects’ whose strategic potential allows for the design of long chains of action (eg through systematic research and technological devel-opment of products and services). Increasingly explicit reformulations and remodellings of the entire architecture of the normative system became unavoidable.82 In comparison to the conditions prevailing in the traditional liberal society, the setting of new internal rules of self-observation, coordination or separation for more differentiated niches and regimes within the normative system of society had become much more complex. The consistency of the system could only be preserved at the expense of its doctrinal and methodological clarity and unity. against the just depicted trajectory of this evolution, recourse to a rather simple exercise in measuring increasing and decreasing levels of ‘publicness’ of norm generation does not look too promising. such an approach can-not do justice to the wide range of highly differentiated norms that together reflect the manifold varieties of norm creation and implementation.83

In global administrative law, the reference to ‘global’ interests in a stronger sense, like protection of the ‘climate’, which cannot be an issue of domestic law alone, plays a lesser role. at the other extreme of a wide range of varieties we have to take into consideration that global administrative law, as well as international public law in the stricter sense, can also serve narrowly defined mutual or efficiency interests of states and administrative

78 kingsbury (n 2); ruth w grant and robert o keohane, ‘accountability and abuses of power in world politics’ (2005) 99 American Political Science Review 29.

79 karl-heinz ladeur and Ino augsberg, ‘auslegungsparadoxien’ (2005) 36 Rechtstheorie 143.80 see only milos več, Recht und Normierung in der Industriellen Revolution (vittorio klostermann, 2006)

272, 367.81 For more background see karl-heinz ladeur, ‘constitutionalism and the state of the “society of networks”:

The Design of a new “control project” for a Fragmented legal system’ (2011) 2 Transnational Legal Theory 463, 466.

82 noonan, sabel and simon (n 65) 537; on developments in germany see anna-bettina kaiser, Die Kommu-nikation der Verwaltung. Diskurse zu den Kommunikationsbeziehungen Zwischen Verwaltung und Privaten in der Bundesrepublik Deutschland (nomos, 2009) 138.

83 slaughter and Zaring (n 52).


agencies. This means that different degrees and types of ‘globalisation’ have to be dif-ferentiated.84 at the same time, the differentiation of public and private becomes more complex, and at least some forms of rule-making or convention-building among private actors or public norm-setting are mutually inter-exchangeable.85 as a consequence, the ‘public’ character of global administrative law is as problematical as postmodern domes-tic law.

on the basis of these assumptions it should also be preferable to distinguish dif-ferent types of cognitive (eg technological, financial) and social norms (eg corporate responsibility) and their relationships with different patterns of legal normativity within the fragmented normative system and its unavoidable hybridisations.86 at the same time, with a view to the internal self-observation of administrative law, its doctrine and methodologies, one could focus on the evolutionary process during which adminis-trative paradigms, the ‘deep structure’ of administrative law, emerge and change in a process of implicit shaping and explicit re-shaping from the ‘internal’ creation of a dis-tinct body of administrative law through ‘external’ legislative acts. This process is closely linked to the transformation of the knowledge and the (social) rule base of society itself. administrative law undergoes constant transformations in connection with the chang-ing knowledge base of society. as a result, administrative law reflects the changing nature and instability of society.

This is particularly significant for the persistently recurring question whether ‘glo-bal administrative law’ is indeed ‘law’. The question, however, cannot be answered on the basis of the traditional conceptualisation, according to which administrative law is understood to be the body of norms and rules tied to the exercise of government in a state. To answer the question we have to take into account that the frame of reference for the reconstruction of domestic law has changed considerably. a more adequate concep-tualisation follows the changing historical paradigms of law. From this vantage point, a striking similarity between both domestic and transnational postmodern administrative law becomes visible and opens up a new perspective on global administrative law.

5. The search For new meTa-rules To manage ‘enTangleD’ InTerrelaTIonshIps

The still-pervasive role of the state in the process of emerging global administrative law demonstrates that it is not fruitful to speak of a transnational ‘civil society’ that is seen to

84 Jean d’aspremont, ‘contemporary International rulemaking and the public character of International law’, nYu law school, IIlJ working paper 2006/12, 4 ff, 14, 16 ff.

85 guéhenno (n 32) 82 ff, 90.86 For a theory of hybridisation in law see gunther Teubner, ‘hybrid laws: constitutionalizing private gov-

ernance’ in robert kagan and kenneth winston (eds), Legality and Community (rowman & littlefield, 2002) 311.


be in a process of ‘self-constitutionalisation’ beyond and without the state and to bring about a kind of ‘big bang’ for a completely autonomous global legal order.87

This section will demonstrate the futility of speaking of a transnational ‘civil soci-ety’ in connection with a new layer of the legal system. Instead, it can be shown that new rules and patterns of coordination do not emerge completely ‘beyond the state’, at least no more than new versions of rules in the ‘society of networks’ at the level of the nation state do. In fact, new ‘entangled’ interrelationships between state agencies and social actors (both of different ‘national origin’) emerge,88 and demand, in a normative sense, a new conceptualisation of the unavoidable ‘management of rules’ under condi-tions of complexity. This complexity is due to the fact that the new ‘society of networks’ (after the ‘society of organisations’) creates more heterogeneity within its infrastructure of legal and social norms, and, as a consequence, more tensions and ‘collisions’ between the different sets of rules—within and beyond the state—can be observed.89 This is a challenge for the search for new types of meta-rules: these would function to bring about a kind of ‘moderation’, a type of proceduralised coordination of different rules in con-trast to a situative and always ad hoc ‘balancing’ of interests, as was the characteristic adjudicative approach under the western welfare state regime. In this respect, domestic administrative law and its postmodern challenge do not differ much from transnational administrative ventures. This is also true of the increasing importance of public-private cooperation, in the context of which stable coordination of (private) social rules and public administrative norms has become elusive. To be sure: while the state does not lose its relevance, its role has been changing. The state neither ‘retreats’ nor vanishes because, as in the past, ever more complex patterns of societal differentiation, expressing themselves in polycentric practices of experimentation in the ‘private’ realm, produce lock-ins as well as perverse effects, which the state is called upon to address. here, the state assumes the role of a player with responsibility for the rules of the game.

The state does not disappear at the transnational level, either, nor does domestic law lose its relevance. one can even think about a new role for state-based public law in the transnational realm in the sense that it can be used to irritate transnational processes of norm-building, for example by using domestic civil rights or procedural rules of fairness as criteria to control the legality of decisions of private transnational organisations that have an impact on the constitutional rights of individuals.90 why should transnational

87 see Teubner (n 12).88 For an argument against the reduction of transnational law to private law, in particular lex mercatoria, see

karsten nowrot, Normative Ordnungsstruktur und Private Wirkungsmacht (berliner wissenschaftsverlag, 2006) 656; christian Tietje and karsten nowrot, ‘Forming the center of Transnational economic legal order? Thoughts on the current and Future position of non-state actors in wTo law’ (2004) 5 Journal of Business Organization Law 321.

89 see, with reference to the concepts of regime and ‘regime collision’, andreas Fischer-lescano and gunther Teubner, Regimekollisionen. Zur Fragmentierung des Globalen Rechts (suhrkamp, 2006).

90 karl-heinz ladeur and lars viellechner, ‘Die transnationale expansion staatlicher grundrechte: Zur kon-stitutionalisierung globaler privatrechtsregimes’ (2008) 46 Archiv des Völkerrechts 42.


corporations that operate in regions with underdeveloped legal regimes not be bound by basic domestic constitutional obligations that are imposed on private actors?

6. DIsTInguIshIng DIFFerenT versIons oF TransnaTIonal aDmInIsTraTIon

‘global administrative law’ in particular can, against this background, be linked to the idea of a ‘disaggregated state’.91 The state no longer acts at the global level through the ‘head of the state’ alone; the body of the state is fragmented such that its ‘members’, the administrative agencies, play a role of their own within transnational networks of cor-responding agencies. This development does not call into question the persistence of classical international law and the ‘unity’ of the state in this arena. Following Diehl/Ku92 it appears meaningful to see global law more in terms of a ‘fuzzy’ set of norms whose boundaries are blurred in all directions. It should therefore be assumed, for example, that the distinction between and linking together of social and legal norms are less well ordered in global law than in national law.

however, in the global arena cooperation is so intense that the traditional clumsy forms of legal coordination no longer work. The state acts in different constellations (both as a network and as a unity) that are not mutually exclusive. These models are compatible, because the ‘disaggregated state’ is not a state in dissolution. It still takes on regulatory tasks of ‘moderation’ in either case.93 ‘moderation’ in this sense does not mean that public agencies play a neutral role vis-à-vis private actors. not at all! however, the state should not try to attain a predetermined ‘substantive’ goal that can be formu-lated without taking into consideration the dynamic of the new domains of options that are dependent on the development of multipolar constellations. under these conditions state agencies can still tease out various alternatives or try to block strategies that lead to lock-ins and prevent further learning, and formulate criteria for the evaluation of strategies.

These tasks are integrated less by a chain of singular decisions (such as adminis-trative acts, orders or rulings) than by a focus on broadly defined ‘webs’ of reflexive, strategic, project-like ventures which follow the track of knowledge and rule manage-ment that has been brought about at the domestic level by the emergence of the ‘society of networks’, which is characterised by the rise of ‘epistemic communities’ (in finance, high technology, etc) that emerge both between and within organisations and create an expertise that is no longer easily accessible to the public at large. This evolution also cre-ates problems both for public actors and for those private actors that cannot participate

91 slaughter (n 18) 14 ff and passim.92 Diehl and ku (n 14) 77. 93 moreau (n 16).


in ‘epistemic communities’. The permeability of the classical borderlines between pub-lic and private, market and organisation,94 cognitive and normative rule-making, has repercussions at the global level. In the transnational dimension, the territorial state, its organisational structures and legal rules providing legitimacy are re-considered and the role of the state, if only heterarchically and not in the central position of the sovereign of decision-making, is brought back in.95

If one takes a closer look at the different types of networks that emerge between the corresponding domestic administrative agencies, the multi-faceted character of this new hybrid version of administrative decision-making is demonstrated quite openly. The most important field for global administrative networks (or better: public-private networks) is the harmonisation of safety or other technological requirements through standards (financial markets, pharmaceutical products, accounting, etc). In this field the channelling of a dynamic learning process in a globalising society is required. In the field of standard-setting,96 we find a type of coordination that demonstrates the new hybridi-sation of social and legal rule-making in a particular form: different types of domestic ‘knowledge bases’ and legal rules and social standards have to be coordinated or meshed in a way that transcends the domestic level of all involved legal administrative orders and leads to a new global frame of reference for decision-making.97 It is quite character-istic that there is still a link to domestic administrative law when concrete cases have to be decided. The increasing importance of standards is also due, if not primarily, to the weight of the scientisation of production and organisations, ie the rise of informational and cognitive dimensions of the economy in the ‘knowledge society’. globalisation is only one of the concomitant dimensions of the dynamic of self-transcendence of the knowledge base of societies which rids itself of the traditional links to the institutions of the stable organisation—public and private.98

at the same time one has also to distinguish limited networks of targeted territorial boundaries spanning cooperation that are built up in the typical perspective of manage-ment of public neighbour law problems.99 They address issues of information exchange concerning, for example, environmental problems in a certain region, or social insur-ance claims of workers who have, so to speak, a double territorial attribution of legal

94 power (n 58).95 David held, ‘The Transformation of the political community: rethinking Democracy in the context of

globalization’ in shapiro and hacker-cordón (n 4) 84; cohen and sabel (n 4) 763. 96 hans christian röhl, ‘Internationale standardsetzung’ in möllers, voßkuhle and walter (n 61) 319; cf Tim

büthe and walter mattli, The New Global Rulers: The Privatization of Regulation in the World Economy (princeton university press, 2010) 99.

97 nico krisch, ‘global administrative law and the constitutional ambition’ in loughlin and Dobner (n 26) 245, 247 has pointed out with good reason that delegation is ‘thin’ and cannot be regarded as a sufficient basis for legitimacy alone.

98 gili s Drori and John w meyer, ‘global scientization: an environment for expanded organization’ in Drori, meyer and hwang (n 59) 50, 57.

99 This may be a case of ‘mutualised’ interests in the sense of Jean d’aspremont (n 84) 14.


status.100 This rather stable coordination does not challenge the territorial character of the activities of the participating agencies. From a descriptive perspective a differ-ent version is to be observed in international migration law:101 this is a field that has a strong global dimension with regard to the number of countries that are concerned. however, this global character of the network of agencies does not have repercussions in the administrative domain as such, which is characterised by domestic interests (even among immigration states that try to shift burdens to their neighbours). The interest of the countries of origin of migrant workers will often be very different from that of their host countries. Interest in the formulation of common standards will be low, and this goes also for the transparency of procedures. This constitutes a restriction on the development of a new type of global law that presupposes the dominance of a focus on cooperation.102 The transnational administrative law that emerges in these fields resembles more the patterns of international law. an interesting variant on this type of exchange perspective that is not primarily focused on a global issue in the narrower sense might be seen in the cooperative relationships between states in international tax law. cooperation in this domain is still limited,103 although recently pressure applied by high tax countries on low tax countries with the intent of reducing tax evasion has increased considerably. The traditional focus is predominantly on avoiding double taxation.104

The factual elements of cooperation may be complicated because it is difficult to define and keep separate the financial ‘substance’ that is to be taxed. as the common interest of states in this field is strong, it comes as no surprise that the problems which have to solved in this field are managed in a satisfactory way: the oecD, or rather, a lim-ited number of oecD tax experts, function rather like neutral mediators, and this body of experts has succeeded in generating trust. The creation of some kind of trust can be described as an emergent effect of this type of network. In this case it seems possible to establish a small group of experts as representing a common interest of the participat-ing states in the stabilisation of a knowledge base that is referred to in cases of conflict over the competence of tax authorities. In this constellation the role of knowledge dif-fers from cases where private transnational cooperation is at stake and where common standards have to be formulated for the dynamic of globalising markets.

an intermediate constellation comes to the fore in the construction and manage-ment of the relationships between a developed country or an international organisation

100 marcus glaser, ‘Internationales sozialverwaltungsrecht’ in möllers, voßkuhle and walter (n 61) 73.101 Jürgen bast, ‘Internationalisierung und De-Internationalisierung der migrationsverwaltung’ in möllers,

voßkuhle and walter (n 61) 279; see also the case study in marc r rosenblum, ‘The united states and mexico: prospects for a bilateral migration policy’, http://borderbattles.ssrc.org/rosenblum.

102 For the inevitable requirements of coordination among uptaking countries see benvenisti (n 33) 262.103 This is probably also the reason why the development of a ‘paradigmatic discourse’ allowing for a

comparative approach to international tax law is regarded as unsatisfactory. see omri Y marian, ‘The Discursive Failure of comparative Tax law’ (2010) 58 American Journal of Comparative Law 415.

104 see eckhart reimer, ‘Transnationales steuerrecht’ in möllers, voßkuhle and walter (n 61) 121; this may be a case of an ‘efficiency interest’ in the sense of d’aspremont (n 84) 17.


dominated by developed states, on the one hand, and developing countries, on the other, on the occasion of a conflict over the interpretation of treaties on assistance or protec-tion of investment. such an asymmetric constellation is characterised by a different logic of transnational relationships: in the field of technical or general assistance the design of an experimental ‘control project’ over a long period, which does justice to both sides,105 can perhaps be developed and implemented from case to case (and not ex ante as in glo-bal economic relations). In the case of developmental projects, the emerging practice of global administrative law, and its procedural elements in particular, could help to estab-lish transparency and accountability (in order to limit administrative malpractice).106 In the field of investment protection below the layer of traditional public international law, a new practice of global administrative law may emerge (although still not settled in a satisfactory institutional frame) that could relate to domestic public and international private law and would in this mode demonstrate a typical hybrid character. It is symp-tomatic that, in this field, an extensive practice of transnational hybrid legal mediation has evolved.107 The paradigm of global administrative law could in this constellation be a frame of reference for the stabilisation of some principles that emerge in the practice of mediation beyond the hitherto typical case-by-case mediation and below the level of traditional public international law. The development of rules and practices, procedural in particular, which are created in this domain, could be a productive example of the new experimental mode of global administrative decision-making.

environmental governance is, in a descriptive perspective, again a different domain of transnational cooperation: it is particularly interesting with regard to the conceptu-alisation of global challenges because it demonstrates the necessity of developing new collective instruments of internationalised or globalised administrative law which tran-scend the problems of a delimitation of competencies among states: it definitely makes national law permeable to the recognition of public interests of other states—and, in this way, relativises the law of the nation state.108 global administrative law might help to put more concreteness into global environmental law by allowing for the development of rules below the rather rigid structure of public international law.109

105 see philipp Dann, ‘grundfragen eines entwicklungsverwaltungsrechts’ in möllers, voßkuhle and walter (n 61) 7.

106 For the necessity of spreading administrative rules in ‘Third world’ countries see www.transparency.org; Daniel kaufmann, aart kraay and massimo mastruzzi, ‘measuring corruption: myths and realities’, world bank Institute. Development outreach, January 2007, http://wbi.worldbank.org/wbi/devoutreach; susan rose-ackerman, Corruption and Government: Causes, Consequences and Reform IX (cambridge university press, 1999); migai akech, ‘Development partners and governance of public procurement in kenya: enhancing Democracy in the administration of aid’ (2006) 37 NYU Journal of International Law and Politics 829; for a focus on strengthening accountability through administrative law see 834.

107 see José e alvarez and kathryn khamsi, ‘The argentine crisis and Foreign Investors: a glimpse into the heart of the Investment regime’ (2009) 1 Yearbook of International Investment Law and Policy 379.

108 This is one of the phenomena of the ‘deterritorialisation’ of administrative law. see schmidt-aßmann (n 21).

109 wolfgang Durner, ‘Internationales umweltverwaltungsrecht’ in möllers, voßkuhle and walter (n 61) 121.


a large number of the issues which are at stake and which demand cooperation and coordination are ‘global’ in a stronger sense: they concern complex problems which are completely beyond the reach of a nation state and which do not find a solution based on patterns formulated at that level. The peak of this development is reached in financial market regulation,110 where we are confronted with a rapidly self-transcending, overlap-ping, disruptive market that processes risk information and demand risk management to a hitherto unknown extent. new global problems are at stake here which do not just change the level of abstraction or the territorial dimension, but undermine the territori-ality of the legal order and of the nation state in a much more complex and demanding way than in the past.

7. FuTure Forms oF coorDInaTIon beTween global anD DomesTIc aDmInIsTraTIve law

at this point, reflection on the future of domestic and global administrative law111 may be helpful: in both fields, a new generative dynamic momentum comes to the fore, due to the rise of networks emerging beyond both classical liberal administrative law (the ‘society of individuals’) and its focus on the abstract person.112 This evolution demon-strates that administrative law can no longer be constructed with reference to classical patterns and their stabilisation by statute law. practical knowledge is no longer deposited in slowly evolving rules of experience or in the legal text, nor can it just be ‘found’ in the application of a legal norm. It presupposes a dynamic modelling of a distributed domain of options and relations invoking a multiplicity of perspectives in ‘real time’ in an open context.113 cooperation will occur not in public-private networks alone, but also in ‘inter-public’ joint-ventures that mobilise expertise beyond the limits of stable territo-rial competencies. The transnational dimension of administrative law is nothing but an expansion of the multi-layered spatial relationships that emerge at the domestic level.114

110 see anne van aaken, ‘Transnationales kooperationsrecht nationaler aufsichtsbehörden als antwort auf die herausforderung globalisierter Finanzmärkte’ in möllers, voßkuhle and walter (n 61) 219; David T Zaring, ‘Informal procedure, hard and soft, in International administration’ (2005) 5 University of Chicago International Law Journal 547 on ‘lightly institutionalised’ cooperation among agencies in the field of financial market regulation; for a critique see karl-heinz ladeur, ‘The Financial market crisis: a case of network Failure? in poul kjaer, alberto Febbrajo and gunther Teubner (eds), The Financial Crisis: A Constitutional Perspective. The Dark Side of Functional Differentiation (hart publishing, 2011) 63.

111 richard b stewart, ‘The global regulatory challenge to us administrative law’ (2006) 37 NYU Journal of International Law and Politics 695, 705.

112 Irène Théry, La distinction de sexe: une nouvelle approche de l’égalité (odile Jacob, 2010) 384 ff.113 on the most recent development in the role of law in extremely complex relationships in high technology

networks see matthew c Jennejohn, ‘collaboration, Innovation, and contract Design’, columbia law and economics working paper no 319 (2007), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014420.

114 For a critique of the increasing role of experts in transnational law see David kennedy, ‘The mystery of global governance’ in Dunoff and Trachtman (n 33) 37, 53.


The discretion of administrative decision-makers finds its legitimation115 in the increas-ing importance of specialised knowledge116 that has to be generated within complex procedures and demands the use of adequate methods of control for the coordination of heterogeneous and polycentric knowledge bases of different countries and societies, in the sense that, in transnational procedures, the aggregation and integration of global social norms and knowledge might be regarded as a new form of cooperative use of administrative discretion in administrative networks.117 This understanding might also be of help in strengthening the links between domestic and global administrative law.

This process demonstrates that global administrative law cannot be conceived of as a mere challenge to the sovereign nation state and the permeability of its territorial borders. Its evolution is a consequence of a deeper transformation of both the economic system and the nation state. The evolution of administration and the economic sys-tem is characterised by the rise of information and of knowledge as the main resource and frame of reference for decision-making. The dynamic of the postmodern ‘knowl-edge society’ is at the bottom of the rapid self-transcendence of the environment of the legal system.118 It is not only the territorial borders of the state, but also the traditional conceptual and institutional separations on which administrative law was founded, that have been severed. at the same time administrative law is flexible enough to allow for the adaptation of at least some of its basic elements to the requirements of a globalised administrative order. Democratic legitimation for the inevitable ‘re-entry’ of global administrative law into domestic administrative law (eg in the case of the application of globalised standards) has still to be adequately put in place. however, this task is eased by the fact that it does not raise problems that are completely different from those chal-lenges faced by domestic administrative law in tackling the domestic phenomenon of public-private cooperation.

as a consequence, both for the domestic layer of administrative law and for the emerging global administrative law, new forms, procedures and meta-rules for an administration beyond the nation state have to be designed. considering the dynamic nature of administration in, and of, networks, more administrative and legislative evalu-ation119 ex post will be necessary: ‘steering’ administrative practice ex ante by means of

115 For a discussion of the problems relating to ‘democratic representation’ in postmodernity see Zumbansen (n 56) 141, 144.

116 see guéhenno (n 32) 82, 90.117 For a similar problem relating to transnational cooperation among the regulatory agencies of member states

and the ensuing question of whether ‘consideration’ of the comments of other national regulatory agencies can be regarded as a legitimate procedural version of administrative discretion according to domestic administrative law, see karl-heinz ladeur and christoph möllers, ‘Der europäische regulierungsverbund der Telekommunikation im deutschen verwaltungsrecht’ (2005) 120 Deutsches Verwaltungsblatt 525.

118 see gili s Drori, John w meyer and hokyu hwang, ‘world society and the proliferation of Formal organization’ in Drori, meyer and hwang (n 59) 25, 34.

119 For a theoretical perspective on ‘evaluation’ as second-order knowledge which reuses knowledge that has already been referred to in the decision-making process see rudolf stichweh, ‘wissensgesellschaft und wissenssystem’ (2004) 30 Schweizerische Zeitschrift für Soziologie 147, 155.


statute or by the ‘application’ of experience will not be sufficient. The new knowledge base of the ‘society of networks’ will allow for more self-organised rules and patterns, while, at the same time, the decreasing relevance of stable norms in both senses should be taken seriously and should be compensated by a new experimental legal rationality that deals explicitly with uncertainty.

we are still in the process of experimentation, which will generate new forms of action, new procedures, and new types of coordination between public and private actors. The new global administrative law has its own ‘secondary’ legitimacy (as opposed to the parliamentary statute as the ‘primary’ source of legitimacy): as a kind of ‘coopera-tive law’ of the ‘society of networks’ and its fragmented knowledge base it corresponds to the ‘internal law’ (J mashaw) of the liberal society of the past that could rely on a shared body of social experience. It may well be the case that the role of the judiciary, not to mention codification by the legislator, in this new evolutionary process will be negligible. what should be conceivable is a new type of cooperation between domestic administra-tive agencies and the legislator, with the prospect of coupling transnational procedures of decision-making and the domestic legitimation and accountability of decision-mak-ers.120 new elements of an intertwinement of domestic and transnational law might be developing.121

8. ouTlook

This article has attempted to build a bridge between the evolution of domestic admin-istrative and postmodern global administrative law. It can be seen that the evolution of administrative law is characterised by periods of creative construction of new forms, instruments and procedures of administrative law in administrative decision-making procedures. court control of these processes should not be interpreted as being the only legal source of administrative law (‘judge made law’) before the partial codification of general administrative law could be brought about in europe and the us. If one bears this evolution in mind, it comes as no surprise that the new hybrid postmodern forms of decision-making in both domestic and global public-private networks cannot easily be subsumed under established administrative rules because experimentation with, and the search for, new forms and procedures of transnational decision-making has not yet come to a conclusion. This constellation is not new in the evolution of administrative

120 David Dyzenhaus, ‘accountability and the concept of (global) administrative law’, nYu law school, IIlJ working paper 2008/7, www.iilj.org/publications/2008-7Dyzenhaus.asp, 13.

121 For new forms of accountability that emerge at the global level see helmut willke, Smart Governance: Governing the Global Knowledge Society (university of chicago press, 2007) 50.


law,122 and it cannot be reduced to the process of globalisation alone:123 it is one of the phenomena in the emergence of a new paradigm of (administrative) law: the law of the ‘network society’,124 a law that no longer refers to stable actors (such as individuals or organisations) but is instead processed by changing project-related, loosely coupled intra- and inter-organisational cooperative ‘constellations’.

122 see also armin von bogdandy, philipp Dann and matthias goldmann, ‘Developing the publicness of public International law: Towards a legal Framework of global governance activities’ (2008) 9 German Law Journal 1375. but this is a position which neglects the possibility that the concept of law itself might undergo a process of transformation.

123 on the close relationship between domestic institutions and globalisation see Jude c hays, Globalization and the New Politics of Embedded Liberalism (oxford university press, 2009) 8, 11.

124 see karl-heinz ladeur, ‘Die netzwerke des rechts’ in michael bommes and veronika Tacke (eds), Netzwerke in der funktional Differenzierten Gesellschaft (verlag für sozialwissenschaften, 2010) 143.

The Emergence of Global Administrative Law and Transnational Regulation

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