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On the constitutional question in global governance : global administrative law and the conflicts-law approach in comparison
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Kuo, Ming-Sung (2013) On the constitutional question in global governance : global administrative law and the conflicts-law approach in comparison. Global Constitutionalism, Volume 2 (Number 3). pp. 437-468. doi:10.1017/S204538171300004X ISSN 2045-3817.
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Official URL: http://dx.doi.org/10.1017/S204538171300004X
Abstract
The question of constitutionalization cuts through the heart of theoretical debate on the fragmentation of global governance. This paper aims to contribute to this debate through a comparison of global administrative law (GAL) and the conflicts-law approach. While the conflicts-law approach espouses the move towards global constitutionalism, GAL disavows constitutional ambition. I make a twofold argument. First, the differing diagnoses these two approaches make of global governance lead to their distinct proposed solutions. GAL identifies the lack of accountability as the underlying concern of global governance and responds to fragmented global governance through balancing-centred legal management. The conflicts-law approach instead attributes the challenges facing global governance to the ill-designed democratic institutions in nation states and turns to ‘democratic juridification’ as the solution. Second, GAL and the conflicts-law approach reflect two distinct images of constitutionalism. GAL’s ‘constitutional deficit’ suggests its implicit embrace of a version of constitutionalism rooted in the tradition of populist democracy. The conflicts-law approach situates transnational democracy in the conflicts-law process in which inter-regime conflicts are resolved, suggesting a prototype of constitutionalized global governance underpinned by an epistemic understanding of democracy.
| Item Type: | Journal Article | ||||
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| Subjects: | K Law [Moys] > KC International Law K Law [Moys] > KM Common Law, Public Law |
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| Divisions: | Faculty of Social Sciences > School of Law | ||||
| Library of Congress Subject Headings (LCSH): | Administrative law, Constitutional law, International relations, World politics, Globalization, Democracy | ||||
| Journal or Publication Title: | Global Constitutionalism | ||||
| Publisher: | Cambridge University Press | ||||
| ISSN: | 2045-3817 | ||||
| Official Date: | November 2013 | ||||
| Dates: |
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| Volume: | Volume 2 | ||||
| Number: | Number 3 | ||||
| Page Range: | pp. 437-468 | ||||
| DOI: | 10.1017/S204538171300004X | ||||
| Status: | Peer Reviewed | ||||
| Publication Status: | Published | ||||
| Access rights to Published version: | Restricted or Subscription Access | ||||
| Date of first compliant deposit: | 1 August 2016 | ||||
| Date of first compliant Open Access: | 1 August 2016 |
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