50199 - ADMINISTRATIVE LAW - GLOBAL ADMINISTRATIVE LAW
Course taught in English
Go to class group/s: 31
Lezioni della classe erogate in presenza
This course focuses on the logics, dynamics, and challenges of “global administrative law”. This term refers to a situation in which: (1) relationships between the interests of individuals and public authorities are influenced or governed by multiple normative systems (from informal social norms to law, from specific rules to the general principles of law), with the consequence that such systems co-exist and compete with one another within the same territory or domain of activity; or (2) two or more systems of governance – such as the courts of different legal orders – claim authority over the same domain of activity. Topics include: the criteria governing the expropriation of aliens; due process of law in regulatory and adjudicatory procedures; the tensions between custom, state law, and human rights in developing countries; and the ways in which the pluralist structure of international treaty law and organization are transforming law and courts at the national level.
Part I – Introduction: Public Law in a Globalized Perspective
- The Globalization of Law: While less recent theories were based on the assumption that law coincides with the State, it is increasingly globalized. As a consequence of this, traditional boundaries tend to blur and new problems arise.
- Public Law Beyond the State: Within domestic settings, public law is essentially concerned with democracy, the rule of law, and sound governance. Are these values and principles relevant and significant beyond the State? And which are the “models” of GAL?
- Relationships between public authorities: Traditionally, the external dimension of public authorities was based on the paradigm of the State-as-a-unit. More recently, a more complex web of relationships has emerged. This provides opportunities for cooperation between public authorities, but raises issues of accountability and transparency.
Part II – Public Values and General Principles of Law
- Democracy: Democracy is, with the Rule of law, at the heart of Western constitutionalism. However, beyond the States its contours and its effectiveness raise complex issues. This is not without repercussions on domestic institutional frameworks.
- Rule of Law (I): Meaning: The Rule of law is a central value of Western legal orders. It is protected by both national constitutions and international treaties. However, its meaning is disputed and its respect is exposed to various threats.
- Rule of Law (II): Critique: Whatever its importance for Western constitutionalism, the Rule of law is increasingly criticized by political leaders and scholars for its failure to achieve its promises or, even worse, for its “perversion”.
- Fundamental Rights: Especially after 1945, the protection of fundamental rights is increasingly globalized. Europe provides a particularly interesting legal environment, with its supranational charter and courts.
- Proportionality: When several interests, individual and collective, must be considered and weighed by agencies and courts, the principle of proportionality is increasingly used within national, international and supranational legal orders. Whether it is conceived and used in the same manner is, however, questionable.
Part III – When Legal Orders Collide
- Indigenous Groups and Property: A central element of a legal order is its social dimension. In contrast with late nineteenth century ideas and beliefs about the unity of the people, there can be and there are mixed societies. This raises complex and important issues from the viewpoint of legal pluralism, especially when the rights of minorities, such as indigenous peoples, are at stake,
- Collective Security and Due Process of Law: A collision between legal orders may also emerge when there is a contrast between rules and decisions aiming at promoting certain collective interests, such as security, and the principles protecting individual rights, particularly due process of law. The “Kadi” saga, which involves national, EU and UN law, is a good example of this.
- Foreign Investment and National Rules: Another terrain of collision between national and international rules concerns direct foreign investment. In this field, disputes between investors and States are not adjudicated by national courts, but by arbitral bodies, in a variety of ways.
Students are expected, first and foremost, to acquire a better understanding of how public authorities work; second, to be capable to distinguish the pros and cons of various administrative techniques; third, to understand why those techniques are used by global regulatory regimes.
Given the emphasis that is put on the elaboration and discussion of response papers, one of the main expected outcome of this course is an improvement of students’ abilities to critically examine (legal) documents and to explain and discuss their points of view, also within teamwork (e.g. with regard to judicial decisions). All this aims at improving critical thinking.
- Face-to-face lectures
- Online lectures
- Case studies /Incidents (traditional, online)
- Individual assignments
This is an advanced course, based on “law in action”. The class surveys approaches to understanding global law in a range of settings, focusing on “inter-normativity”: the various ways in which autonomous normative orders, including systems of law with fully-fledged courts, interact with one another. A variety of issues concerning legal principles and rules, as well as their underlying values, are thus considered, on the basis of the readings and documents that are available on the Bboard platform of the course.
Attending students will be evaluated on the basis of:
(A) a short (2 pages) "response paper" on the weekly readings (40%),
(B) attendance and participation (20%),
(C) a final oral exam
For the students who do not attend the course, there will be a written and oral exam, on the same day.
- B. KINGSBURY, N. KRISCH, R.B. STEWART, et al., The Emergence of Global Administrative Law, 68 Law and Contemporary Legal Problems 2005; the NYU Global Administrative Law Project (www.iilj.org/gal).
- S. CASSESE, The Global Polity. Global Dimensions of Democracy and the Rule of Law (Editorial Derecho Global / Global Law Press) 2014, available at http://es.globallawpress.org/wp-content/uploads/02-TheGlobalPolity.pdf.
- For a perspective on trasnational administrative justice, see: G. DELLA CANANEA, Due Process of Law Beyond the State. Requirements of Administrative Procedure (Oxford University Press, 2016).
- S. CASSESE, et al., Global Administrative Law: the casebook (IRPA, 2012). This volume, which examines several cases, is available on http://www.irpa.eu.