The Uneasy Relationship between Global Administrative Law and Global Constitutionalism
Ming-Sung Kuo, Between Fragmentation and Unity: The Uneasy Relationship between Global Administrative Law and Global Constitutionalism (2009). San Diego International Law Journal, Vol. 10, No. 1, 2009. Available at SSRN: http://ssrn.com/abstract=1419631
This article aims to critically examine the status of global administrative law within the already widely acknowledged notion of global constitutionalism. While global constitutionalism describes the processual ‘constitutionalization’ of an increasingly globalized world through the values emerging from cross-border regulatory cooperation, the global regulatory process at the heart of global administrative law appears to take the place of ‘We the People’ as the creative force behind global constitutionalism. Contrary to the domestic/national context, the identitarian relationship between global administrative law and global constitutional law suggests the unity of global legality, whether it be called administrative law or constitutionalism. This article tries to establish that this ‘identitarian unity’ between administrative law and constitutional law in the global context leads to theoretical as well as normative fragmentation between global administrative law and global constitutionalism. On the one hand, global administrative lawyers focus on the global coordination or rationalization of administrative policies without paying sufficient attention to their impacts on the development of global constitutionalism. On the other hand, by premising global constitutionalization on the practices of global regulation, global constitutionalists overlook the problems inherent in global administrative law itself. As a result, the analysis shows that the status quo of global administrative law can only be maintained by “outsourcing” the fundamental challenges to global constitutionalism.