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Doomed aspiration of pure instrumentality: Global Administrative Law and accountability

Published online by Cambridge University Press:  22 September 2014

DANIELLE HANNA RACHED
DANIELLE HANNA RACHED*
Affiliation:
International Relations Institute, University of São Paulo (USP), Av. Prof. Lucio Martins Rodrigues, s/n, travessas 4 e 5, Cidade Universitária CEP 05508-020, São Paulo-SP
*
*Email: daniellerached@gmail.com
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Abstract

The article attempts to illuminate how the concept of accountability is diversely shaped and signified in the theoretical legal discourse. It engages in a threefold mapping review: (i) it portrays, according to the basic divide between the angles ‘within the state’ and ‘beyond the state’, the geographical and functional contexts in which real-world political accountability mechanisms exist and interact; (ii) it interprets an influential legitimating discourse that is being used as a benchmark to appraise institutions and political processes beyond the state – the Global Administrative Law project (GAL); (iii) it highlights how this sort of accountability discourse is tied with demands for legitimacy in global governance that cannot be detached from the old political ideals. Largely oriented towards due process, I argue that the GAL project, in order to maintain a normative appeal, should not ignore larger political ideals, however controversial they might be. Otherwise, it remains a manipulable and hence unreliable cause to be endorsed.

Keywords

accountabilityGlobal Administrative Lawinstitutional arrangementslegitimacywithin and beyond the state
Type
Research Article
Information
Global Constitutionalism , Volume 3 , Issue 3 , November 2014 , pp. 338 - 372
Copyright
Copyright © Cambridge University Press 2014 

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References

1 Echoing Dubnick’s distinction between ‘accountability-the-word’ and ‘accountability-the-concept’. M Dubnick, ‘Seeking Salvation for Accountability’ Paper for the 2002 Annual Meeting of the American Political Science Association, 29 August–1 September 2002.

2 As Raz pointed out: ‘Not uncommonly when a political ideal captures the imagination of large numbers of people its name becomes a slogan used by supporters of ideals which bear little or no relation to the one it originally designated.’ J Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press, Oxford, 1979) 210. Or as Kopell remarked: ‘Accountability has become a catchall for everything good in governance and administration.’ JGS Koppell. World Rule: Accountability, Legitimacy, and the Design of Global Governance (Chicago University Press, Chicago, IL, 2010) 293.

3 The article draws some inspiration, it may fairly be said, from Keohane’s and Grant’s claim: the ‘appropriateness and efficacy of any of our mechanisms for accountability will depend on the particular context’. Keohane, R and Grant, R (2005), ‘Accountability and Abuses of Power in World Politics’ 99(1) American Political Science Review 40.Google Scholar This is not, to be sure, an unprecedented insight, but is definitely one that straightforwardly meets the conditions for a sensible discussion on accountability.

4 What David Held calls ‘intermestic’. See Held, D, ‘Democratic Accountability and Political Effectiveness from a Cosmopolitan Perspective’ (2004) 39 Government and Opposition 364, 371.Google Scholar Kingsbury et al. call ‘distributed administration’. Kingsbury, B, Krisch, N and Stewart, RB, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15, 20.Google Scholar

5 As Keohane and Grant have asked: ‘How should we think about global accountability when there is no global democracy? How can understanding accountability at the level of the nation-state clarify the problem of accountability at the global level?’ (n 3) 30.

6 A caveat about the meaning of ‘GAL project’ should be put forward. The expression might suggest a false image of a rigid and self-contained group of people working under a commonly shared conceptual apparatus. This first take on it, though, is inaccurate. The ‘GAL project’ is not exactly an organic and homogeneous school of thought in international law, but rather a collective initiative of scholars that are concerned with the need to conceptualize the space of administration within the overall structure of global governance. GAL is an umbrella term that has convened authors to ask a set of crucial questions. For the sake of clarification, I will use ‘GAL project’ when I refer to this research enterprise, and only ‘GAL’ when I refer to the emergence of an institutional phenomenon that can be plausibly called ‘global administrative law’. This distinction will become clearer in section VI.

7 O’Neill delineates the formal structure that accountability relations share: ‘Systems of accountability are highly varied, but they have a common formal structure. They are used to define, assign and help enforce second-order obligations to account for the performance (or non-performance) of primary or first-order tasks or obligations.’ O O’Neill, Rethinking Informed Consent in Bioethics (Cambridge University Press, Cambridge, 2007) 167.

8 According to Stewart, ‘accountability is a relational concept. At a minimum, an accountability mechanism meets four basic requirements: (1) a specified accountor, who is subject to being called to provide account including, as appropriate, explanation and justification for some specified aspect or range of his conduct; (2) a specified account holder or accountee; (3) authority on the part of the accountee to demand that the accountor render account for his performance; and (4) the ability and authority of the account holder to impose sanctions or secure other remedies for performance that he judges to be deficient or, in some cases, to confer rewards for superior performance.’ RB Stewart, ‘Accountability, Participation, and the Problem of Disregard in Global Regulatory Governance’ NYU Law School, IILJ International Legal Theory Colloquium (2008) 15, available at <http://iilj.org/courses/documents/2008Colloquium.Session4.Stewart.pdf> (accessed 19 July 2014).

9 As Philp maintains: ‘simply asking for more accountability is unlikely to contribute much to resolving the deep inequalities of power and wealth that systematically weaken the legitimacy of global institutions’. Philp, M, ‘Delimiting Democratic Accountability’ (2009) 57 Political Studies 28, 47.Google Scholar

10 E MacDonald and E Shamir-Borer, ‘Meeting the Challenges of Global Governance: Administrative and Constitutional Approaches’ NYU Hauser Globalization Colloquium (2008) 3, available at <http://iilj.org/courses/documents/MacDonald.Shamir-Borer.92508.pdf>. See also de Búrca, G, ‘Developing Democracy beyond the State’ (2007) 46 Columbia Journal of Transnational Law 221–78.Google Scholar

11 See Krisch, N, ‘The Pluralism of Global Administrative Law’ (2006) 17(1) European Journal of International Law 247Google Scholar, 250–1. Knowing ‘to whom’ someone should be accountable is a crucial question, the answer to which can hardly be ‘to everybody’ or ‘to anybody’.

12 Held and Koenig-Archibugi, for example, claim: ‘the conception of political legitimacy prevalent in most countries today is hostile to the idea of any form of power that is unaccountable to those over whom it is exercised and especially to those who are most affected by it’. D Held and M Koenig-Archibugi (eds), Global Governance and Public Accountability (Blackwell Publishing, Oxford, 2005) 1.

13 In a previous work, I claim that there are four functions of accountability that should be pursued: (i) the constitutional, which limits power and inhibits abuses; (ii) the democratic, which recognizes, listens and responds to the plurality of voices of the account-holders – those who are deemed to have legitimate stakes on the matter; (iii) the epistemic, which builds institutional capacity – a particular craft for taking substantively good decisions; and (iv) the populist, which fosters allegiance and obedience from the account-holders. DH Rached, The International Law of Climate Change and Accountability (2013) PhD thesis in International Environmental Law submitted to the University of Edinburgh Law School.

14 Kumm claims: ‘There is a consensus today that legitimacy of domestic law is predicated on it being justifiable in terms of a commitment to liberal constitutional democracy.’ Kumm, M, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) 15(5) European Journal of International Law 907, 910.CrossRefGoogle Scholar

15 JL Mashaw, ‘Accountability and Institutional Design: Some Thoughts on the Grammar of Governance’ in M Dowdle (ed), Public Accountability: Designs, Dilemmas and Experiences (Cambridge University Press, Cambridge, 2006) 115, 133.

16 In a previous work, I stipulated the concept of accountability and defined the spatial vector as one among 11 coordinates of such concept. It regards how the power relationship between two agents materializes along horizontal or vertical lines. Vertical accountability is characterized by some asymmetry of power between accountees and account-holders. As for the horizontal-type of accountability, the constraint between accountees and account-holders is more delicate and stems rather from a cooperative commitment in light of mutual dependence. DH Rached, The International Law of Climate Change and Accountability (n 13).

17 Ferejohn conceives the distinction between political and legal accountability on the basis of how close the accountee is to the people (that means, to elections). The farthest from election an authority is located, according to him, the greater its burden of reason-giving should be. J Ferejohn, ‘Accountability in a Global Context’ (2007) IILJ Working Paper 2007/5, 1–24.

18 As Thompson contends: ‘A completely hierarchical system of accountability is subject to a regress of authority; overseers overseeing overseers all the way up. But in the absence of a single trustworthy guardian … the answer must be to multiply the overseers at various levels, and allow them to check one another.’ DF Thompson, Restoring Responsibility: Ethics in Government, Business, and Healthcare (Cambridge University Press, Cambridge, 2004) 261.

19 JL Mashaw (n 15) 153.

20 Ferejohn called it ‘folk democratic theory’ (n 17) 7.

21 See Walker, N, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders’ (2008) 6 International Journal of Constitutional Law 373–96CrossRefGoogle Scholar; and Walker, N, ‘Taking Constitutionalism Beyond the State’ (2008) 56 Political Studies 519–43.Google Scholar Krisch (n 11) and Krisch, ‘The Case for Pluralism in Postnational Law’ (2009) LSE Law, Society and Economy Working Papers, 12/2009. Finally, see E MacDonald, ‘The ‘‘Emergence’’ of Global Administrative Law?’ paper presented at the 4th Global Administrative Law Seminar, Viterbo, 13–14 June 2008.

22 Ferejohn (n 17) 1–2.

23 G Palombella, ‘Global Legislation and Its Discontents’ (July 2013) available at <http://works.bepress.com/gianluigi_palombella/17> 15.

24 Keohane and Grant (n 3) 41–2.

25 N Walker, ‘On the Necessarily Public Character of Law’ (2010) University of Edinburgh School of Law, Working Paper Series 2010/35, 18.

26 Keohane and Grant explain: ‘The problem of abuse of power is particularly serious in world politics, because even the minimal types of constraints found in domestic governments are absent on the global level. Not only is there no global democracy, but there is not even an effective constitutional system that constrains power in an institutionalized way, through mechanisms such as checks and balances. Lacking institutionalized checks and balances, the principal constraints in world politics are potential coercion (as is the balance of power) and the need for states and other actors to reach mutually beneficial agreements. But these constraints are quite weak in restraining powerful actors, and they are not institutionalized in generally applicable rules.’ at (n 3) 30.

27 For Koskenniemi, it is a ‘system of contractual obligations between independent states declared at Westphalia’. Koskenniemi, M, ‘The Future of Statehood’ (1991) 32(2) Harvard International Law Journal 397.Google Scholar

28 Walker, N, ‘Out of Place and Out of Time: Law’s Fading Co-ordinates’ (2010) 14(1) The Edinburgh Law Review 13.Google Scholar

29 N Krisch, ‘Global Administrative Law and the Constitutional Ambition’ in P Dobner and M Loughlin (eds), The Twilight of Constitutionalism? (Oxford University Press, Oxford, 2010) 246–9. Kingsbury et al. argue: ‘In classical theory the domestic regulatory measures are the implementation by states of their international obligations. Private actors are formally addressed only in the implementation stage, and that is solely a domestic matter.’ at (n 4) 23.

30 Ferejohn (n 17) 2.

31 Zürn, M, ‘Global Governance and Legitimacy Problems’ (2004) 39(2) Government and Opposition 260–87.Google Scholar

32 Several authors have been using the prefix ‘post’ to refer to the current international state of affairs: ‘post-sovereign’ and ‘post-Westphalian’ are usual ones. For the former, see N MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth Practical Reason (Law, State, and Practical Reason) (Oxford University Press, Oxford, 2001) 123; for the latter, see Fraser, N, ‘Reframing Justice in a Globalizing World’ (2005) 36 New Left Review 69Google Scholar, 73 and Walker (n 21) 373. There are also alternative labels. Abram and Antonia Chayes, for example, refer to a ‘new sovereignty’ in order to explain that sovereignty, instead of granting states the freedom to act as they wish, requires that they make compromises in order to honour their role as members of the international community. According to them, ‘the only way most states can realize and express their sovereignty is through participation in the various regimes that regulate and order the international system’. A Chayes and A Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press, Cambridge, MA, 1995) 27.

33 Cassese goes in that direction: ‘The centrality of the state to the notion of public powers has become an optical illusion. This does not mean, however, that the global legal order has supplanted the state, nor that it has become dominant, in as much as it is also through global regulatory systems that domestic public powers are able to make their voices heard.’ S Cassese, ‘Administrative Law without the State? The Challenge of Global Regulation’ (2006) 37 NYU Journal of International Law and Policy 673.

34 As José Alvarez has claimed in a public lecture: ‘We are still living in Westphalia. States are still very much alive and the trickle-up effects show this.’ (Edinburgh Lecture, May 2011). Koskenniemi also asserts the ‘continuing vitality of statehood’ (n 27) 397.

35 Weiler, for example, looks at three specific periods (1900–10, 1950–60 and 1990–2000) and recognizes respectively three command modes in international law: transactionalism, community and regulation. JHH Weiler, ‘The Geology of International Law – Governance, Democracy and Legitimacy’ (2004) 64 ZaöRV 547, 552. For him, one cannot talk about revolutionary transformations, ‘but of layering, of change which is part of continuity, of new strata which do not replace the earlier ones, but simply layer themselves alongside’ ibid 551. This geological metaphor symbolizes the superposition of different kinds of institutional structures, each of which with a distinct capacity of autonomous decision-making and a specific legitimatory burden, and thus helps us better grasp the plurality of existing arrangements in international law.

36 Kumm describes the transformations suffered by international law with respect to its scope, to its enforcement measures and to state consent (n 14) 913–16. In the same sense, Weiler also talks about ‘the widening and deepening in the scope of the international legal order’ (n 35) 561.

37 The point of the mosaic metaphor has been well characterized by Walker, Tierney and Shaw. N Walker, J Shaw and S Tierney, Europe’s Constitutional Mosaic (Hart Publishing, Oxford, 2011).

38 See Kahn, PW, ‘American Hegemony and International Law Speaking Law to Power: Popular Sovereignty, Human Rights and the New International Order’ (2000) 1 Chicago Journal of International Law 1, 11.Google Scholar

39 Henkin, L, ‘That “S” Word: Sovereignty, and Globalization, and Human Rights, Et Cetera’ (1999) 68 Fordham Law Review 1, 5.Google Scholar

40 Weiler refers to international law and legitimacy as ‘two moving targets’ (n 35) 548.

41 See Bodansky, D, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’ (1999) 93 American Journal of International Law 596, 606Google Scholar; Weiler (n 35) 548 and Henkin (n 39) 5.

42 Chayes and Chayes, among others, have asserted that the legitimacy of governance regimes lies predominantly on the open process of norm elaboration and application and not only on state consent (n 32) 128–9. It is also the point of the ‘paradigm of human rights’, on the basis of which Kahn argues that international law can be legitimate even in the absence of consent (n 38) 5.

43 Krisch argues that: ‘the problem is that these institutions are often accountable in the wrong way: in part, they are accountable to the wrong constituencies’ (n 21) 250. Keohane and Grant go in the same way: ‘The problem is not a lack of accountability as much as the fact that the principal lines of accountability run to powerful states, whose policies are at odds with those of their critics, and which may or may not themselves be fully democratic. Public within countries are not heavily involved in these processes.’ See (n 3) 37.

44 D Dyzenhaus, ‘Constitutionalism in an Old Key: Legality and Constituent Power’ (2011) Wissenschaftszentrum Berlin (WZB) Discussion Paper, SP IV 2011-802, 23–4.

45 Chwaszcza, C, ‘Beyond Cosmopolitanism: Towards a Non-Ideal Account of Transnational Justice’ (2008) 1(3) Ethics & Global Politics 132.Google Scholar

46 As Stein eloquently puts it: ‘we still insist on translating solutions developed within the state to the novel phenomenon and using state nomenclature. This, in a sense, is a natural tendency since the state is, so to speak, the only show in town if one looks for a model and international law is of little help.’ Stein, E, ‘The Magic of the C-Word’ (2005) 18(3) European Union Studies Association 1.Google Scholar

47 For Rosenau, one has to break such ‘stranglehold’: ‘Perhaps the most dangerous trap involves what I call the ‘‘domestic analogy’’: the tendency to think about the problem of accountability at the international level as if we had domestic processes in mind. … Does this mean that transnational accountability cannot be achieved? No, it does not if one can break free of the stranglehold that the domestic analogy has on our thinking.’ Rosenau, J, ‘Transnational Accountability and the Politics of Shame’ (2001) 8 ILSA Journal of International and Comparative Law 353–4.Google Scholar

48 Krisch’s arguments echo this perception: ‘When we try to imagine the postnational space, it is not surprising then that we turn for guidance first to the well-known, the space of the national.’ N Krisch, ‘Postnational Constitutionalism?’ (2008) Hauser Globalization Colloquium, NYU, 1.

49 See (n 13).

50 Keohane and Grant (n 3) 41.

51 The distinction between ‘government’ and ‘governance’ has been serving to identify, respectively, thicker and thinner modes of the exercise of authority. States are the typical sites of ‘government’, whereas various transnational institutions are described as part of ‘global governance’. Krahman puts that shortly: ‘government and governance as ideal-typical poles at either end of a continuum ranging from centralization to fragmentation permits an analysis of the transformation of political authority at the national, regional, and global levels’. Krahmann, E, ‘National, Regional, and Global Governance: One Phenomenon or Many?’ (2003) 9 Global Governance 323, 340.CrossRefGoogle Scholar Finkelstein summarizes it: ‘Global governance is governing, without sovereign authority, relationships that transcend national frontiers. Global governance is doing internationally what governments do at home.’ L Finkelstein, ‘What is Global Governance?’ (1995) 1 Global Governance 367, 369. See also Esty, DC, ‘Good Governance at the Supranational Scale: Globalizing Administrative Law’ (2005) 115 Yale Law Journal 1490–1562Google Scholar; G Stoker, ‘Governance As Theory: Five Propositions’ (1998) UNESCO, Blackwell Publishers, Oxford; and Krisch (n 29).

52 Krisch (n 29) 245.

53 For Krisch, domestic administrative law comes as ‘inspiration and contrast: it serves as a framework for identifying converging and diverging developments in institutional practice, and it helps us sharpen our sensitivity to the problems and possibilities of establishing accountability mechanisms on the global level’. It is a ‘background rather than basis for prescription’, it aids the ‘reflection on the transferability of domestic concepts’ (n 29) 256–7.

54 Kingsbury et al. (n 4) 17 and Krisch (n 29) 255. See also MacDonald (n 21) 4. As Cassese also points out: ‘Administration is becoming increasingly international. … Their number is increasing … . Their staff is growing … . Their influence is on the rise.’ S Cassese, ‘A Global Due Process of Law?’ (2006) NYU Hauser Colloquium on Globalization and Its Discontents 2.

55 Kingsbury et al. (n 4) 17.

56 This idea has been captured in three general statements of MacDonald: ‘Global administrative law doesn’t exist. … Global administration exists. … Global administrative laws exist.’ (emphasis added) at (n 21) 2–4.

57 Ibid (n 21) 2. Kingsbury et al. (n 4).

58 For MacDonald, GAL is ‘not simply identifying the emerging principles, but advocating their spread’ (n 21) 27–8.

59 Kingsbury et al. (n 4).

60 MacDonald and Shamir-Borer (n 10) 6.

61 Kingsbury et al. (n 4) 21–2. One can mention several representative examples of each type: (i) the UN Security Council or the International Labour Organization (ILO); (ii) the Basel Committee on Banking Supervision; (iii) several national environmental regulators which implement international environmental law; (iv) the Codex Alimentarius Commission or the Internet Corporation for Assigned Names and Numbers (ICANN); (v) the International Standardization Organization (ISO) or the World Anti-Doping Agency.

62 Ibid 23–4.

63 Ibid 26.

64 These two characteristics have been described by Weiler (n 35) 559.

65 The distinction between institutional design ‘writ small’ and ‘writ large’ has been carefully developed by Vermeule. His analysis takes for granted the broad historical constraints of some structural elements of institutional choice, and focuses on ‘a repertoire of small-scale institutional devices and innovations that promote democratic values against the background of standard large-scale institutions’. A Vermeule, Mechanisms of Democracy: Institutional Design Writ Small (Oxford University Press, Oxford, 2007) 2. Ely, when delving into the role of judicial review, also draws a similar distinction between ‘process writ small’ (individual disputes) and ‘process writ large’ (the broader conditions of participation in government). JH Ely, Democracy and Distrust (Harvard University Press, Cambridge, MA, 1980) 87.

66 Mashaw (n 15) 115.

67 Kingsbury et al. (n 4) 16.

68 Kingsbury et al. contend: ‘the global administrative bodies making those decisions in some cases enjoy too much de facto independence and discretion to be regarded as mere agents of states’. Ibid 26.

69 Kingsbury et al. enumerate examples like the certification of CDM projects by the Executive Board, the determination of refugees’ status by the UNCHR, the certification of NGOs to participate in meetings by UN agencies. Ibid 24.

70 That is what Zürn highlights when he points to the ‘removal of numerous decisions from the circuit of national and democratic responsibility’ (n 31) 260.

71 As contended by Cohen and Sabel. Cohen, J and Sabel, C, ‘Global Democracy?’ (2006) 37 International Law and Politics 763, 765.Google Scholar This point has been also raised by Stewart (n 4) Kingsbury et al. (n 4) 53; and Krisch (n 29) 247–8.

72 For Kingsbury et al., the accountability deficit ‘has begun to stimulate two different types of responses: first, the attempted extension of domestic administrative law to intergovernmental regulatory decisions that affect a nation; and second, the development of new mechanisms of administrative law at the global level to address decisions and rules made within the intergovernmental regimes’ (n 4) 16.

73 Cassese provides a number of examples: ‘a body of general principles is being consolidated in the global arena: the principle of legality, the right to participate in the formation of norms (‘‘notice and comment’’, as recognized by the OIE) the duty of consultation (imposed by the World Bank on domestic administrations in the context of the Heavily Indebted Poor Countries Initiative) the right to be heard (‘‘procedural participation’’ recognized by the FATF and the WTO Appellate Body) the right to access administrative documents, the duty to give reasons for administrative acts (the duty to give a reasoned decision, affirmed by the WTO Appellate Body) the right to decisions based upon scientific and testable data, and the principle of proportionality’ (n 33) 690. Echoing the same realization in another text, he claims that global administration is not ‘still ruled by secrecy, informality and arbitrariness’ (n 54) 2.

74 As Cassese further explains, these rights engender a ‘chance to intervene’ and a ‘right to appeal’ (n 33) 685.

75 Kingsbury et al. (n 4) 17. See also Mashaw, JL, ‘Structuring a ‘‘Dense Complexity’’: Accountability and the Project of Administrative Law’ (2005) 6 Issues in Legal Scholarship 11.Google Scholar MacDonald and Shamir-Borer (n 10) 11.

76 The GAL package is quite similar to other proposals for accountability enhancement. Koppell, for example, proposes five ‘conceptions’ or ‘dimensions’ of accountability: transparency, liability, controllability, responsibility and responsiveness. Koppell, JGS, ‘Pathologies of Accountability: ICANN and the Challenge of ‘‘Multiple Accountabilities Disorder’’’ (2005) 65(1) Public Administration Review 95.CrossRefGoogle Scholar In his later book, Koppell called these same five elements ‘concepts’ of accountability (n 2) 34.

77 Cassese furnishes a thorough classification of participatory channels (n 54).

78 Some of the GAL proponents include ‘accountability’ as a discrete device alongside the others of this package. See, for example, Stewart (n 8). What is often meant by accountability is a particular procedure for sanctioning the power-holder. We could name this sense of accountability as ‘accountability stricto sensu’. Reducing accountability to a proceduralized sanctioning device can lead to overlooking other accountability types and less formal sanctions that take place. I prefer, thus, keeping ‘accountability’ in its ‘lato sensu’ perspective, which covers all devices.

79 This is what Krisch means by pointing to the ‘relative and provisional’ features of the project: ‘GAL is a self-consciously ‘‘modest’ project’’ which comes up with ‘‘relative and provisional conclusions’’’ (n 29) 262.

80 MacDonald and Shamir-Borer explicate that feature: ‘Global administrative law thus has a modular quality: it provides a toolkit that allows us to pick and choose the mechanisms that best suit the particular regulatory structure in question.’ (emphasis added) at (n 10) 13. GAL’s modular quality would escape one of the traps pointed by Rosenau: ‘A third trap to avoid is that of aspiring to one instrument of accountability suitable to all situations.’ at (n 47) 354. This quality would facilitate, moreover, what Nye has identified as ‘willingness to experiment’: ‘Increasing the perceived legitimacy of international governance is therefore an important objective and requires three things: greater clarity about democracy, a richer understanding of accountability, and a willingness to experiment.’ J Nye, ‘Globalization’s Democratic Deficit: How to Make International Institutions More Accountable’ (2001) 80(4) Foreign Affairs 3.

81 Cassese (n 54) 57.

82 MacDonald and Shamir-Borer (n 10) 53.

83 This neologism was coined by Cassese: ‘From the organizational standpoint, the global legal order does not follow a single model. It is instead an example of ‘‘adhocracy,’’ in the sense that it adapts to the functions to be performed, sector by sector.’ at (n 33) 679. In another text, Cassese also elaborates on sectoral conformations of global due process: ‘each regime has its own due process principle, not every one grants participatory rights and there is a lack of overarching principles, that can be applied to all regulatory regimes.’ at (n 54) 57. See also S Chesterman, ‘Globalisation and Public Law: A Global Administrative Law?’ in J Farrall and K Rubenstein (eds), Sanctions, Accountability and Governance in a Globalised World (Cambridge University Press, Cambridge, 2009) 77.

84 As MacDonald and Shamir-Borer explain: ‘We suggest that we might expect to see this eventual unity manifest itself in three main ways: in a relative homogeneity of general, abstract principles that are then applied differently in different sectors; in a relative homogeneity in the more concrete rules and mechanisms applied within sectors both domestically and extranantionally; and in the creation of a generalised ‘culture’ of administrative law, in which it can be generally expected that some type of administrative law rules, some form of concretisation of the general principles, will attach to all exercises of public power in global governance.’ (emphasis added) at (n 10) 27.

85 Krisch (n 29) 257. And Krisch complements: ‘It is a project with a partial, not a comprehensive aspiration and seeks an independent existence both as an analytical project and as a normative one, albeit on narrower (and potentially less contested) grounds.’ Ibid 258.

86 This metaphor is the title of a book co-organized by Elster, Offe and Preuss: J Elster, C Offe and U Preuss, Institutional Design in Post-Communist Societies: Rebuilding the Ship at Sea (Cambridge University Press, Cambridge, 1998).

87 Krisch (n 29) 255–8.

88 Ferejohn addresses the question likewise: ‘My answer will be more or less optimistic: I think there are ways to improve things from a recognizably democratic perspective, even in the nonideal global context.’ at (n 17) 2.

89 The pragmatism of the GAL project, for MacDonald and Shamir-Borer, relies on ‘acknowledging and confronting the realities of globalization. It recognizes the structural nature of global governance ‘‘as is’’, and works from within.’ at (n 10) 13. It would help escaping one of Rosenau’s traps: ‘A second mistake to avoid is that of focusing on radical rather than practical changes.’ at (n 47) 354.

90 Such theoretical vigilance, that aligns the ambition of normative arguments with what is believed to be historically realistic, is a common recourse in the literature of global politics that GAL resonates with. This point has not escaped the attention of Stewart, Kingsbury, Krisch, MacDonald, in the publications already mentioned.

91 For instance, as Kingsbury et al. have argued: ‘This inquiry usefully highlights the extent to which mechanisms of procedural participation and review, taken for granted in domestic administrative action, are lacking on the global level. At the same time it invites development of institutional procedures, principles, and remedies with objectives short of building a full fledged (and at present illusory) global democracy.’ (emphasis added) at (n 4) 27.

92 Ibid 50.

93 For example, Keohane and Grant argue that global accountability requires ‘new, pragmatic approaches’, which should be sensitive to two types of accountability: to states (delegation model) and to those affected by its decisions (participation model). If the latter were always to trump the former, the immediate risk for international institutions would be to lose state-members’ support (financial and any other). At the same time, if the interests of those who are affected by international bodies’ decisions were overlooked, international institutions’ legitimacy might be questioned. For them, the key to have vigorous global accountability lies somewhere in between the two models. See (n 3) 34.

94 MacDonald (n 21) 18.

95 According to Krisch: ‘In the divided, highly contested space of the postnational, ideal solutions are elusive – pluralism may be the best option we have.’ at (n 21) 45. See also MacDonald (n 21) 21.

96 Boyle, A, ‘Environment and Development: Accountability through International Law’ (1993) 12 Third World Legal Studies 95.Google Scholar

97 Zürn clarifies the two sides of the concept of accountability: the normative, associated with validity and a claim to legitimacy, and the descriptive, attached to societal acceptance (n 31) 260.

98 Pitkin states: ‘To call something a legitimate authority is normally to imply that it ought to be obeyed. You cannot, without further rather elaborate explanation, maintain simutaneously both that this government has legitimate authority over you and that you have no obligation to obey it’. (original emphasis) Pitkin, H, ‘Obligation and Consent – II’ (1966) 60 American Political Science Review 39, 39.CrossRefGoogle Scholar

99 Inadvertent uses of different definitions of the word ‘legitimacy’ may cause misunderstandings. The presently used normative definition should not be mistaken with the descriptive senses in which the term is sometimes used: legitimacy as the fact of obedience (sociological version) and legitimacy as legality (formal validity, sheer compliance with rules, whatever the content of the rules is). Fallon has satisfactorily analysed this distinction (see R Fallon, ‘Legitimacy and the Constitution’ (2005) 118 Harvard Law Review 1787). There are, for sure, intricate interconnections among the moral, the sociological and the legal conceptions. These connections must be drawn carefully so that one avoids making the moral collapse into either the sociological or legal senses. The risk is instrumentalizing the former for the sake of either one of the latter, defending the putative moral quality of a certain arrangement only to the extent that it generates compliance, or worse, taking the ‘fact of compliance’ as an indicator of moral quality.

100 See TM Franck, Fairness in International Law and Institutions (Oxford University Press, New York, 1995) and The Power of Legitimacy among Nations (Oxford University Press, New York, 1990); Bodansky (n 41); Kahn (n 38); Weiler (n 35).

101 To use, again, Weiler’s metaphor (n 35) 552.

102 Walker (n 21).

103 Typical examples of the former are the pouvoir constituant, elections, principal–agent delegations and consent, all of them embodying an autonomous act of will, an opportunity of an agent to have a say or exercise some influence upon a decision. Examples of the latter will necessarily bear upon rights, measures of reasonableness, proportionality and so on.

104 For an example of the ‘politics of definition’, see Walker (n 21) 524.

105 Weiler (n 35) 547.

106 Weiler argues: ‘The demos is an ontological requirement of democracy. There is no demos underlying international governance, but it is not even easy to conceptualize what that demos would be like.’ Ibid 560. For Bodansky, unless there is an identifiable group able to ‘make decisions’ either by themselves or through representatives, there is hardly a democratic arrangement. The formal devices of direct participation or some sort of representativeness are, as opposed to Weiler’s cultural notion of demos, inherent to democracy. See Bodansky (n 41) 614.

107 Bodansky (n 41) 615–17.

108 Cohen and Sabel (n 71) 767. For de Búrca, despite the usual attachment of the concept of democracy to the context of the state, one should not necessarily be satisfied with global governance without democracy. She argues: ‘any serious proposal for addressing the legitimacy of transnational governance must include a robust democratic aspiration’ (emphasis added) at (n 10) 237.

109 Krisch (n 29) 253.

110 Ibid 253–4.

111 To borrow Stein’s expression (n 46).

112 MacDonald and Shamir-Borer (n 10) 3. Krisch points out that, while both GCon and GAL are concerned with the legitimacy deficit of global governance, they do so from different angles. The peculiarity of the latter, as noted earlier, would be that it ‘focuses on questions of accountability’ (n 29) 246 and 256.

113 MacDonald (n 21) 18.

114 This ‘temporal self-restraint’ refers, as it has been constantly reminded by MacDonald and Shamir-Borer, to the conditions that exist ‘now and for the foreseeable future’ (n 10) 5.

115 Ibid (n 10) 51.

116 MacDonald (n 21) 21.

117 For MacDonald, GAL is ‘divested of a constitutional impulse to hierarchy and unity’ and ‘well calibrated to respond to irreducibly plural and heterarchical conditions of contemporary global governance’. Ibid 24–5. As MacDonald and Shamir-Borer also claim: ‘In providing us with both a framework and tools for apprehending these institutions largely as they are (or in any event, to change them in a less invasive manner than constitutionalist approaches of necessity must) global administrative law is better adapted to protect the regulatory gains that have come from institutional and functional specification.’ (emphasis added) at (n 10) 37.

118 For Chesterman, GAL would be practically superior because it is ‘more likely to find traction with decision-makers themselves’ (n 83) 77.

119 For MacDonald, GCon cannot account for the vast array of different bodies that exercise public power in global governance (n 21) 18, This partly leads up to MacDonald’s succinct conclusion: ‘Global administrative law is a necessary complement to any global constitutionalism; the inverse, however, does not hold.’ at (n 21) 24–5.

120 MacDonald and Shamir-Borer highlight the procedural side: ‘It is worth emphasizing that global administrative law – for the most part at least – focuses largely on formal and procedural, rather than substantive, requirements. These are intended not to definitively condition any substantive regulatory outcome, but rather to ensure, to the greatest degree possible, that all affected by public power have a say.’ at (n 10) 53. Cassese goes in the same direction and coins the expressions ‘global due process’ or ‘global proceduralism’ to characterize the point of GAL (n 54) 55. Chesterman, however, expands the agenda of GAL to accommodate the substantive/epistemic considerations: ‘The goals of global administrative law go beyond constraining decision-makers, however. In addition to providing ‘input legitimacy’ to decision-making processes, broadening participation, shining light on deliberations and providing the possibility of revisiting bad or unfair choices, global administrative law should improve the decisions themselves. This may be thought of as ‘‘output legitimacy’’.’ (emphasis added) at (n 83) 88.

121 Krisch (n 29) 246.

122 Kingsbury et al. (n 4) 27.

123 Krisch (n 29) 265.

124 MacDonald claims: ‘Global administrative law, unlike global constitutionalism, functions as pure instrumentality.’ at (n 21) 24.

125 MacDonald and Shamir-Borer (n 10) 55.

126 Ibid 53.

127 MacDonald (n 21) 25.

128 Stewart explains: ‘A final issue is the potential linkage, if any, between global administrative law and democracy. A system of electorally based representative democracy at the global level is at present far beyond reach. … Nonetheless, the development of a global administrative law, including through “bottom up” as well as “top down” approaches, could work to strengthen representative democracy at the national level by making global regulatory decisions and institutions more visible and subject to effective scrutiny and review within domestic political systems, and thereby promote the accountability of international regulatory decisionmakers through those systems.’ Stewart, RB, ‘U.S. Administrative Law: A Model for Global Administrative Law?’ (2005) 68 Law and Contemporary Problems 63, 108.Google Scholar

129 MacDonald and Shamir-Borer (n 10) 53. See also Krisch (n 11).

130 For the idea of ‘pragmatic modesty’, see Krisch (n 29).