Interesse Público (Normativo) Global e Legitimidade: Um comentário a Gabriel Bibeau-Picard
Global (Normative) Public Interest and Legitimacy: A comment on Gabriel Bibeau-Picard
Resumo: O presente texto corresponde a uma versão desenvolvida do comentário realizado no dia 28 de novembro de 2014, durante o Workshop Internacional de Lisboa
sobre Direito Administrativo Global, referente ao artigo “GAL as Public Law: The Inherent Legitimacy of Accountability”, submetido por Gabriel
Bibeau-Picard, da Universidade de Paris Panthéon-Assas – Paris II. O texto corresponde a uma versão escrita para esse propósito, que pretendia promover uma
discussão crítica de não mais de quinze minutos, onde os aspetos fundamentais do artigo comentado fossem realçados, com algumas questões levantadas, de
modo a estimular o debate ulterior.
Palavras chave: Direito Administrativo Global, legitimidade, responsabilidade, constitucionalismo global, interesse público
1. Notas introdutórias; 2. Breve resumo do artigo; 3. A definição do GAL; 4. As 3 Legitimidades – a sua utilidade e limites; 4.1. Legitimidade Legal; 4.2.
Legitimidade liberal; 4.3. Legitimidade democrática; 5. Direito Administrativo Global, constitucionalismo global e interesse público global
The present text corresponds to a developed version of the commentary presented on the November, 28th, 2014, during the Lisbon International Workshop on Global Administrative Law, regarding the paper “GAL as Public Law: The Inherent Legitimacy of Accountability”, submitted by Gabriel Bibeau-Picard, from the University of Paris Panthéon-Assas – Paris II. The text corresponds to the version written for that purpose, which was meant to be a critical discussion of no more than fifteen minutes, where the main aspects of the commented paper were highlighted and some questions were raised, so as to stimulate a further debate.
Keywords: GAL, legitimacy, accountability, global constitutionalism, public interest.
1. Introductory remarks; 2. Brief Overview of the paper; 3. The GAL definition; 4. The 3 Legitimacies - their usefulness and limits; 4.1. Legal legitimacy; 4.2. Liberal legitimacy; 4.3. Democratic legitimacy; 5. Global administrative law, global constitutionalism, and global public interest.
1. Introductory Remarks
On a workshop dedicated to Global Administrative Law (GAL) and the concept of law it would be strange if legitimacy were not put on the table. The paper by
Bibeau-Picard does just that allowing for a discussion on the very nature of GAL at the same time we revisit the main theories that purport to explain the
legal nature of a normative order. Given that global administration as somewhat unanimously achieved the status of a normative order it is paramount that
one must question if it is of a legal nature, if it can claim to be law by any set of reasons other than naming itself.
As someone who looks for the legal nature of any normative order through a mix of substantive-procedural fixing of interest-balancing, Bibeau-Picard’s
paper seem to offer fresh field for insights and reflexion. Not only his tour through three chosen legitimacies begs the question of how can one claim that
such a normative order is legal but his proposed convergence of GAL and global constitutionalism seems to take issue with the quality of “publicness” as a
quality that can offer legal legitimacy to a set of rules. My interest in connecting this “publicness” appeal with the quest for the existence of a global
public interest became my main reading motivation and what the commentary that follows, although raising some issues concerning GAL’s name and the three
legitimacies chosen, addresses mainly the legal legitimacy that can be brought about through a (constitutionalized) global public interest and how I read
that into Bibeau-Picard’s paper.
2. Brief Overview of the Paper
Does a Global Administration entail a Global Administrative Law? That is the question. It is a question that is posed by Bibeau-Picard in his paper
“Legality and legitimacy in Global Administrative Law2. The author does not answer
the question right away. In fact he draws it in another way, by stating that he aims to “examine the claim that there is more to legitimacy than mere
accountability”3 showing from the beginning of his paper he is well aware of the
substantive vs. procedural legitimacies debate regarding GAL4.
He accepts the evidence of a Global Administration and the necessary consequence of a set of underlying principles that “organize and shape” it. The author
then sets about trying to figure out what is the legitimacy of these principles, if there is one, as a previous problem leading to some sort of legality:
“this paper is concerned with the legitimacy of global administrative principles insomuch as some form of legitimacy is a prerequisite to legality” 5.
Bibeau-Picard identifies, from the outset of his paper, three current debates standing on three different legitimacies, which he presents and qualifies:
first, legal legitimacy, and then liberal and democratic legitimacies.
Legal legitimacy is equated, following Dyzenhaus reading of Fuller, as inner rationality and inner morality, and liberal and democratic legitimacies hold
on a debate with Kingsbury’s positions.
Liberal legitimacy stands on the identification of liberal values in any given normative order with a Hartian rule of recognition being supplement by a
liberal conception of “publicness”.
Finally, democratic legitimacy allows for the attribution of legal quality to a normative order where one can recognize rule-adoption and rule-following by
democratic deliberative processes.
Bibeau-Picard is unable to find any of the three legitimacies satisfactory for specific reasons concerning each one of them.
The author then turns to Global Constitutionalism both as a function of Global Administrative Law, in which the latter would foster the former, and a means
to comprehensively legitimize GAL.
3. The GAL definition
What’s in a name? Concerning GAL quite a lot6. We are first impressed by the fact
that most authors use a concept - Law - to refer to an objet - Global Administration - without being able to demonstrate that the object actually contains
the elements that constitute the concept. So we begin with a kind of “wishful thinking” quality about GAL 7. It is true that the concept of Law itself it not immune to controversy but
regarding GAL it seems we are using it more to convince ourselves than because we have a clear set of attributes by which we define Law and that we find in
a Global Administration. But if it is so we are also using GAL to motivate ourselves to explain the legal nature of something that although already has
“law” in its name, continually begs us to continue the debate. Bibeau-Picard’s paper first virtue is to clearly set this debate between those we could call
the “substantivists” and the “proceduralists”8. If GAL is to be Law, and that was my
main interest in reading Bibeau-Picard’s paper and in writing this commentary, than we have to know what we are discussing. By centering the discussion on
legitimacy it is the very name and nature of GAL that is being discussed. The way in which we, from very early on, understand this and see it as the
framework for the paper strikes me as very important, even if formally we are well within the section dealing with legal legitimacy when this introductory
question is fully realized. This formal aspect should be address to clarity.
4. The 3 Legitimacies - their usefulness and limits
I find the choice of the three legitimacies very interesting as it provides a good summary of the current debate regarding legitimacy in GAL. The arguments
raised about each legitimacy however leave me wandering and a little lost concerning some points. One aspect in particular will be especially important
later on this commentary: Bibeau-Picard’s choice of legitimacies and the framing of the debates they call upon seems to reveal a preference - acknowledged
or not - for one side of an important discussion concerning GAL (and Global Constitutionalism for that matter): the place of national law in the
construction of Global Law. The debate revolves around what we could call the deductive process - in which we create GAL from common legal principles in
national administrative laws - and the pluralist process - in which we allow for different principles of administrative law to cohabit and contend for the
constitution of GAL according to the way in which Global Administrations apply them9.
This is for me a very important discussion and one which links to the conclusions of Bibeau-Picard’s paper regarding Global Constitutionalism. The author
seems to allow for a deductive-constitutive process of a Global Constitution, actually fostered by GAL - “greater accountability of global regulators could
somehow foster the emergence of a global demos”10 - and I would like to see the
author pursue this point further, especially in the context of such an important question as the rise of a global community and its normative implications
Each of the types of legitimacies addressed by Bibeau-Picard reveal an aspect of the discussion concerning the possibility of the emergence of a global
political community out of a deliberative process versus the recognition of such global political community based upon a pluralist dialectic background in
which different interests and procedures compete to achieve legitimacy (and legality) by rational discourse and acceptance. To this discussion also
matters, as I previously mentioned, the emphasis we put on national administrative laws. Bibeau-Picard’s paper also helps us to clearly form a picture in
which we are given two choices: on the one hand to build GAL’s legality on the combination of domestic laws legitimacies and on the other hand to forsake
that goal completely and build its legitimacy on the new aspects of the Global Administrations. That is why I will address each one of the legitimacies
4.1. Legal legitimacy
Bibeau-Picard discusses legal legitimacy supported on Dyzenhaus reading of the Fullerian “inner morality of the law”. I would like to take issue with the
relation between congruence-accountability-generality. If I read the author right congruence as a Fullerian requisite for legality implies a “space for
participation of the ruled in the interpretation of the general norm”12. This
participation will then generate accountability because the ruled will want to control how power conferred normatively is exercised. This demand begs
Generality in GAL functions as a safeguard against exclusion from procedures of global governance of those who could be subjected to that governance.
Generality assures that subjects remain custodians, even if indirectly and through representative mechanisms. It is thus difficult to accept its waiver as
a prerequisite for legal legitimacy. Demanding it on the deliberative phase but allowing for its omission on the executive phase does not seem to solve the
problem: generality still stands as a necessary prerequisite. Such generality must be understood as allowing for a certain amount of subjective discretion
on the part of global administration bodies (which however are substantive and procedurally accountable because their competences are normatively
attributed to them through a method that comprises generality for the reasons mentioned). I read Bibeau-Picard’s apparent suspicion of the merits of legal
legitimacy in this way.
4.2. Liberal legitimacy
After legal legitimacy, much supported by Dyzenhaus reading of Fuller13, liberal
legitimacy is introduced by way of Kingsbury, Krisch and Stewart articulating the “Hartian perspective of law as a social fact” 14 with the concept of “publicness”, which in way changes the tune from a natural
law legitimacy for GAL to a normativist legitimacy. But we are soon dealing with much more that a Hartian perspective according to the reading of
Bibeau-Picard, following Kingsbury, when he says that “basically, the traditional sources of international law are insufficient to qualify global
administration as law”15. So Bibeau-Picard discusses the requisite put forth by
Kingsbury: the concept of publicness acting as a rule of recognition. I am quite in agreement with the conclusions the author extracts from this
discussion: given that the liberal values that conform “publicness” are open for debate not only that puts a heavy toll on a liberal legitimacy but opens
it up to a transformation onto a democratic legitimacy, as a process that could settle an accepted meaning of publicness in a community. Although I agree
with this argument I would have liked to read more on the cases in which there has been a liberal legitimacy to a certain kind of global administration
(namely the protection and enforcement of human rights under States and the ECHR) and how that might pose a problem to the argument of necessary transition
to a democratic legitimacy.
4.3. Democratic legitimacy
The last of the legitimacies that Bibeau-Picard deals with is the democratic legitimacy. Here the author again contends with Kingsbury, this time regarding
his argument that GAL strengthens democracy and again comes up dissatisfied with what this type of legitimacy can offer to GAL. I find the author’s remark
regarding democracy within the context of GAL very much to the point when he states that “GAL offers a mix of forensic-accountability and
consumer-accountability where no one is directly accountable to the people «severally and jointly» for the actions of global administrative bodies” 16.
Regarding this section I take issue with the connection made by Bibeau-Picard between a democratic legitimacy and the normative qualification (or its
absence) of the people to whom democracy is referred. In way the author names the problem - “The general public being virtually absent from the equation,
this would indeed be a post-public, privatized conception of legitimacy”17 - but it
seems to be left unanswered within the discussion of what to accept as a true democratic legitimacy. For instance, can we have democracy in which “We the
people” are not a community that refers to a State, but a community that refers to a purpose (eg: all those who want to enjoy safe and reliable airline
trips). Would that be enough to ground a democratic legitimacy for a global legal order? Since this links directly to the last section of Bibeau-Picard’s
paper, I will come to this point presently.
5. Global administrative law, global constitutionalism, and global public interest
Given that none of the three legitimacies that Bibeau-Picard diagnosed as the relevant ones in the ongoing debate regarding the legal nature of GAL gave
satisfactory explanations18, the author moves on to Global Constitutionalism as a
tool to address the legitimacy problem of GAL. This is in itself problematic given the incipient theoretical foundations of Global Constitutionalism.
Concerning this problem, the author questions the possibility of GAL performing the role of a “small-c constitution” to a global “big-c constitution” but
finds apparent unsurmountable obstacles: “In the absence of a «people», as in «We the People», the small-c constitution looks very technocratic. It rests
on the crude legitimacy of bureaucratic efficiency mobilizing principles of administrative rationality” 19. It is not enough to generate legality. At least for the time being. The
ultimate conclusion that Bibeau-Picard seems to arrive at then is not so much the inadequacy of the three chosen legitimacies to ground the legality of GAL
but their inadequacy to ground them on the current state of the global network of interactions with normative potential. He seems to accept, as we have
tried to show, that both the legal and the liberal legitimacies end up at some kind of concept of democratic legitimacy but for that legitimacy to hold we
still need a global demos to rise up normatively. This is not the end of the story, as he puts it. It merely seems to transfer Bibeau-Picard’s concerns on
this paper to Global Constitutionalism and to its democratic legitimation, which he argues that could be boosted by global governance concerns regarding
accountability, which have been, as his paper well shows, the proto-legal approach to legitimize GAL as law.
On my final comments on Bibeau-Picard’s stimulating paper I would like to equate this relation between GAL and Global Constitutionalism under the scope of
global normative public interest, if there is such an object. On a constitutional level it is hard to accept such a legitimacy by procedure as we are
willing to accept on an administrative level, so if one wants to talk about global constitutionalism one must address the issue of global public interest.
Every constitution is about finding the perfect balance between the definition and satisfaction of public interest and the definition and protection of
individual liberties. So the question seems to be: more than a legitimation by procedure (rectius, accountability) does GAL not imply a legitimation
by the result of such procedure, that is, global public interest? One could immediately end this discussion by recalling what Bibeau-Picard points up as a
flaw on democratic legitimacy - the presence and even dominance of certain private elites in global administrations 20 - but is there a way to bypass such a criticism?
One way to reconcile some frustration with democratic legitimacy being unable to ground GAL and the absence of a global demos preventing the problem to be
solved on a constitutional level is to confirm that there is in fact a chance of determining a global demos, albeit rooted on different characteristics
than those we usually associate with Westphalian States. Such is the proposal of Cohen and Sabel when they argue that “if the accountability of global
administration depends on arrangements that are elsewhere anomalous and exceptional, then the demos to which it is ultimately accountable may be a
comparably anomalous global demos that does not comprise the members of a single ethnically-defined people, nation, or state. Still, the anomalous demos
may be sufficiently familiar to give substance to the now-fugitive idea of a global democracy without a global state or nation” 21. This, I think, goes to the heart of the matter, not only because it offers us
an avenue to explore democratic constitutionalism and its limits in a global order, but also to question ourselves - question that Bibeau-Picard leaves
open and that begs a follow-up - if the legitimacy of GAL is not all together a conceptually autonomous entity from global democracy, standing on its own
set of elements. It seems that we are nowhere near a constitutional foundation for global governance that can ground a specific legitimacy for GAL, but at
the same time if we allow for a constitutional foundation of a different kind than the one we associate with Nation-States (heterarchical, not hierarchical 22) we might find that a global, normative public interest might ground a global
demos and legitimize a global administrative law. Since “GAL and global constitutionalism can only be addressed separately for so long” 23, it seems mandatory to inquire if existing theories of global democracy - as a
constitutional foundation - do not supply a legitimacy criterium for Global Administrative Law. Or, if on the contrary, the failure to ground a global
democracy necessarily denies legitimacy to GAL. No global demos, no global democracy, no global public interest, no global administrative law? seems to be
the methodological nexus of normative grounding that a legitimacy argument as yet to offer. Even so, Bibeau-Picard’s paper leaves this nexus much more
clear to further research.