Research Handbooks on Globalisation and the Law series
Edited by Sabino Cassese
Chapter 5: Constitutional foundations of global administration
Virtually all of the problems affecting Global Administrative Law (GAL) can be reconstructed in terms of its constitutional foundations. This chapter will therefore be limited to the structure of the constitutional argument within the context of GAL, exploring its merits, trade-offs and shortcomings, and illustrating all of these by means of examples. Constitutionalism is a contested and fuzzy concept. This is all the more true in relation to normative orders other than the modern nation state. While it is evident that the rise of international or global administrative structures occurs in a substantially different fashion from traditional state-building in many respects, the implications that this insight should have for the application of constitutional standardsto an executive regime at the international level are far less clear. The academic debate appears to be dominated by three types of reaction. First, there is a rights-based legalistic approach. According to this approach, constitutionalism is a purely legal project having the function of taming arbitrary action on the part of nation states. Today, the main instrument of this approach is human rights – which are often understood in a manner close to that employed to discuss moral arguments – as well as a rational and cosmopolitan understanding of politics. This view is state centred, although in a negative way.
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