Divergent Legal Conceptions of the State: Implications for Global Administrative Law

Abstract

International and domestic public law, in the common law tradition, conceive of the state in fundamentally different ways: the former as a permanent unified entity and the latter as a disaggregated set of competing institutions. The strategies for transnational government most likely to be successful are those that can assimilate these conceptions and apparently eliminate the differences between them. One such strategy is for domestic administrative law courts to enforce the executive's commitments made at international law when the executive exercises its discretion domestically. However, in some cases, even this strategy will have to confront crucial differences in how international and domestic law view a state's fundamental constitutional commitments. Further, and paradoxically, the paper suggests that some of the very strategies that eliminate the conceptual differences between the archetypes of the international and domestic state (thus enhancing the prospects for transnational government) may also threaten the applicability of administrative law techniques and values in the newly created global administrative space.