Global Administrative Law: a new branch of law or a quest for an academic Grail?

• Autor(a) principal: Martins,Ana Gouveia
• Data de Publicação: 2015
• Tipo de documento: Artigo
• Idioma: eng
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://scielo.pt/scielo.php?script=sci_arttext&pid=S2183-184X2015000300012
• topic: the concept of Global administrative law; the concept of law in Hart Theory; doctrinal and political project; International law; international custom and general principles of international law

The present article discusses whether is possible to recognize in the concept of ‘global administrative law' (GAL) a new field of law or it is simply an academic and doctrinal project that cannot be qualified as ‘law', although it can set up a valuable approach to a phenomenon that needs doctrinal analysis and theoretical reflection. Endeavoring to support the concept of law in GAL project, as including also codes of conduct, mere recommendations and other practices and instruments that are not encompassed within standard conceptions of ‘international law', Kingsbury has proposed to use a positivist theory of law based on H.L.A. Hart doctrine with some extensions or modifications, view which is, however, far from convincing. We conclude that it not possible to declare at the present day the existence of a Global administrative law, even in a stricter sense, bypassing the lack of general constitutive or substantive administrative rules, since it cannot be stated the existence of a unitary body of global procedural law. In sum, we argue that the expression GAL is inaccurate and misleading since, as a minimum, the designation adopted should be used in the plural form (‘Global administrative laws') and highlight that it concerns not only laws but also simple practices (‘Global administrative laws and practices') and above all it should be accurately characterized we as a kind of a legal holy GRAIL (Goals Required to a kind of Administrative International Law): a doctrinal project which aims to ensure the placing under a set of procedural principles and some substantive standards the actions of actors in the global space regardless of their consecration in sources of international law or domestic law. It is undeniable that Gal project has the merit of promoting research centered not only in formal sources of law and formal arrangements, emphasizing the need to get a wider and deeper understanding of how the phenomenon of global regulation is actually being developed and the urgency in subjecting this phenomenon to doctrinal analysis and theoretical reflection. Nonetheless, we do not share the view that GAL project is the only way to address problems and challenges that global governance has risen up. To address these issues proves to be of utmost importance to recognize the need to promote the adaptation of internal administrative law and constitutional law, as well of international law to the new emerging realities. In particular, we advocate a new conceptualization of the classical notion of international custom in order to overcome the current dogma of conferring relevance only to state practices as evidence of a general practice, which is no longer acceptable, considering the increasing dynamism of denationalization. Another possibility that deserves further investigation is the recourse to the notion of general principles of law in order to aloud the recognition of the main principles of procedure law in certain global regimes and in major legal systems as general principles of international law.