Departing from the Westphalian tradition, global administrative law is
seen as arising from the pragmatic needs of transboundary regulation
underpinned by a normative aspiration to rule of law beyond national
boundaries. Unhinged from state consent, however, it faces a twofold
challenge: legality and legitimacy. The former centers on the distinction
between law and non-law; the latter is concerned with the legitimacy of
global administrative law. Benedict Kingsbury’s The Concept of ‘Law’
in Global Administrative Law attempts to answer this twofold challenge by
centering the new paradigm of international law, as epitomized by global
administrative law, on the notion of publicness. First, he pins its solution
on the substantive concept of publicness. Second, he portrays global
administrative law as an inter-public law, governing the relationship
among regulatory regimes in accordance with the value of publicness.
This Reply argues that Kingsbury’s publicness-centered conception of
international law does not resolve the challenges facing global
administrative law. Rather, his version of global administrative law does
not so much correspond to an inter-public law as points to a post-public
conception of legitimacy, reflecting the trend of addressing the issue of
fragmentation by tacitly adopting the strategy of privatization in global
administrative law scholarship
