Holding transnational regulation to account: the view from GAL

GAL is a normative response to the fact that with the increasing needs of global governance, regulatory decisions and their effects have extended beyond the control of national administrations.^{Footnote 17} In an essay that lays the foundations for GAL, Benedict Kingsbury, Nico Krisch, and Richard Stewart situate GAL’s emergence in ‘the vast increase in the reach and forms of transgovernmental regulation and administration designed to address the consequences of globalized interdependence’ in diverse regulatory fields.^{Footnote 18} Emerging from this context of global governance are the ‘transnational systems of regulation or regulatory cooperation’ established in various forms.^{Footnote 19} Consequently, transnational administrative bodies, governmental as well as nongovernmental, are in charge of the implementation of transnational regulation without being subject to direct control by national governments or state parties to treaty-based regulatory regimes. Thus arises the question of accountability deficit.^{Footnote 20} In addition, the externality of domestic regulatory decisions is another concern at the core of global governance.^{Footnote 21} It is true that the spillover effect of domestic regulatory decisions on other states, international organizations, or other stakeholders in transnational regulation, has been a lingering issue.^{Footnote 22} Nevertheless, as governance issues become globalized, adverse effects from regulatory decisions made by national administrations raise more eyebrows.

To respond to the dual challenges of accountability deficit and regulatory externality, advocates for GAL observe that traditional administrative law tools adopted in domestic legal systems have been deployed in the transnational regulatory environment. On the one hand, concerns over accountability deficit are seen to be mitigated with the development of administrative law mechanisms on the global level and the extension of national administrative law to the domestic effects of decisions made by transnational regulatory bodies.^{Footnote 23} On the other hand, as transnational regulatory regimes, under which national governments are subsumed, evolve, administrative law mechanisms are utilized to address the issue of regulatory externality when domestic regulatory decisions affect other state parties to transnational regimes. National administrative decisions with external effects to other states need to be scrutinized and justified in light of administrative law standards.^{Footnote 24} In view of these developments, GAL defines itself as a normative theoretical approach that focuses on

Under this view, traditional international organizations and new forms of administrative bodies, governmental and nongovernmental, which jointly constitute ‘global administration’,^{Footnote 26} take part in the decision making of transnational regulation. Taking account of the development of national administrative law in response to the rise of modern bureaucracies of nation states, GAL aims to bring these new clusters of regulatory power underpinning global governance under control. This is where the normative idea of publicness comes in. Inspired by the experiences of domestic administrative law, which is regarded as resting on the idea of publicness and its associated principles,^{Footnote 27} the crucial distinction is made between law and non-law with respect to the regulatory decisions and administrative practices of global governance in light of the normative criteria associated with the idea of publicness.^{Footnote 28}

Regardless of its effect of constitutional significance,^{Footnote 29} GAL disavows constitutional ambition but instead is focused on how to enhance the legitimacy and rationality of decentred transnational regulatory powers in the variegated global administrative space by means of administrative law mechanisms and standards.^{Footnote 30} Underlying this understanding of global governance is a landscape of legal pluralism.^{Footnote 31} Against this backdrop, the steering of relationships between regulatory regimes in the variegated global administrative space is central to the functioning of global governance, raising the issue of ‘conflicts of laws arrangements’ in the face of the fragmented global governance.^{Footnote 32} Specifically, as governance issues become complex and diverse, new arrangements as to the exercise of regulatory power are made in global governance. To the extent that governance issues are intertwined, it is not clear which regulatory body constitutive of global administration holds sway in individual cases. Leaving this inter-regulatory regime relationship unaddressed, however, global governance would be plunged into regime collisions as literature on the fragmentation of international legal order suggests.^{Footnote 33} Thus, beyond its original focus on the legitimacy and rationality of transnational regulatory powers, GAL takes up the steering role in the relations between regulatory jurisdictions arising from the multiplicity of networks of sectoral governance regimes.^{Footnote 34}

Bearing this landscape of legal pluralism and the need for ‘conflicts of laws arrangements’ in mind, Benedict Kingsbury appeals again to the idea of publicness in his attempted comprehensive jurisprudential account of GAL. In addition to the enhancement of the legitimacy and rationality of decisions of individual regulatory regimes, GAL pivots its ‘conflicts of laws arrangements’ on the balance in the inter-regulatory regime relationship in light of the idea of publicness and its associated principles.^{Footnote 35} To avert the possible regime collisions, the intricate interrelationships between regulatory regimes is steered with consideration of the underlying principles of the idea of publicness, including principles such as the limitation of power, the requirement of justification and proportionality, the procedural mechanism for deliberate decision-making, and the protection of human rights in each governance sector. Notably, the steering of the inter-regime relations is carried out on a case-by-case basis. In each instance of conflicts of laws arrangements, the laws of two regulatory regimes in conflict are balanced against each other to decide which one to apply in each case.^{Footnote 36} Thus, when it comes to conflicts of laws arrangement, GAL relies on the exercise of balancing.^{Footnote 37}

Taking democracy deficit seriously: the thrust of the conflicts-law approach

While the issue of ‘conflicts of laws arrangements’ takes a back seat in the GAL project, concerns over regime conflicts lie at the heart of the conflicts-law approach to global governance.^{Footnote 38} Tracing the turn to governance in transnational regulation to early regulatory reforms in response to the dysfunctional regulation of the interventionist administrative state, the conflicts-law approach situates global governance in the multiplicity of regulatory regimes that have evolved from the problem-solving efforts of variegated regulatory bodies alongside nation states.^{Footnote 39} Instead of substituting transnational regulatory regimes for national administrative bodies, the ‘conflicts-law school’, headed by Christian Joerges at the University of Bremen,^{Footnote 40} argues that global governance concerns how to choose the best solution to the regulatory issue at hand in the face of various regulatory regimes.^{Footnote 41}

To fully appreciate the uniqueness of the conflicts-law approach, it is necessary to see how it diagnoses the issues of global governance. Compared to other approaches, the conflicts-law approach identifies a more serious problem than regulatory failure in global governance. According to Joerges and his followers, global governance not only brings to the fore the issue of accountability deficit of transnational administrative bodies as diagnosed by GAL scholars. The issue of regulatory externality further exposes the problematic nature of democracy in modern states.^{Footnote 42} The spillover effects of decisions made by national administrations are not merely a result of lacking regulatory co-ordination between them, which can be addressed through the component mechanisms of GAL as are developed under transnational regulatory regimes concerned.^{Footnote 43} Rather, the Joerges School argues that the very fact that the effects of domestic regulatory decisions spill over to those who do not belong to the political community where the aforesaid decisions are made is symptomatic of the problematic decision-making processes in modern democratic states.^{Footnote 44} To the extent that those who are affected by national policies and live outside the political community are kept from participating in the decision-making processes, those policy decisions made by national administrations cannot be considered democratic. In this way, Joerges turns the discourse on the democracy deficit of transnational regulatory regimes upside down.^{Footnote 45} The root of democracy deficit in global governance lies in the problematic nature of democracy that has taken the form of the modern nation state.^{Footnote 46}

Thus understood, the question of democracy deficit finds itself alongside the classical issue of how to stabilize individual expectations in international transaction in the face of variegated foreign legislation and policies, a central concern to the field of private international law and conflict of laws.^{Footnote 47} While private international law and conflict of laws were traditionally regarded as part of the domestic legal order, that individuals are the protagonists in the functioning of this distinct division of international law has inspired liberal theorists of international relations in the post-World War II era.^{Footnote 48} To counter the emphatic role of state interest in international relations as advocated by the realist school, some liberal theorists have drawn upon the practices of private international law and conflict of laws with an aim to introducing ‘transnational law’ in the place of public international law.^{Footnote 49}

It is in these liberal lines of reversing the relations between individuals and the state in the international legal order that the Joerges School takes its conflict of laws predecessor further, characterizing democracy deficit as conflicts of laws between different regulatory regimes. With the spillover effects to other states, domestic administrative regulations penetrate through jurisdictional boundaries. Notably, the penetration of domestic administrative regulations through jurisdictional boundaries is not a one-way phenomenon. The interpenetration of domestic regulations in global governance results in conflicts of laws between national jurisdictions.^{Footnote 50} Furthermore, with the development of new forms of administration, jurisdictional conflicts extend beyond the interpenetration of domestic regulations to the intertwinement of decisions made by different regulatory regimes.^{Footnote 51} Against this backdrop, the conflicts-law approach praises transnational administrative arrangements as opening regulatory decisions to the influence from all those affected, thus making up for democracy deficit incurred from the domestic decision-making processes of modern democratic states. In this way, transnational regulatory decisions are acquitted of the charges of democracy deficit. Transnational regulatory bodies are regarded as a solution, not a problem, to the democratic mechanisms of the nation state; the functioning of transnational regulatory bodies amounts to a new conflict of laws in that individual expectations are stabilized thereunder in the face of criss-crossing national regulations.^{Footnote 52}

Taking the experiences of the European Union (EU) as the prototype of transnational governance, Joerges identifies three types of conflict resulting from the intermesh of regulatory competences in the EU and its member states: ‘vertical’, ‘horizontal’, and ‘diagonal’.^{Footnote 53} In a recent article, Joerges and his collaborators state:

Based on this diagnosis, Joerges purports that inter-jurisdictional conflicts or regime collisions pose the fundamental challenge to global governance.^{Footnote 55}

It should be noted that treaty-based formal transnational regulatory bodies are not the only response to the question of democracy deficit resulting from national regulations. Rather, new regulatory arrangements such as public–private partnership and the outsourcing of regulatory functions to private bodies have become significant players in global governance, making the issue of inter-jurisdictional conflicts or regime collisions more complicated.^{Footnote 56}

Bearing the centrality of individuals to inter-jurisdictional conflicts in global governance in mind, Joerges draws inspiration from private international law and conflict of laws scholars in Germany and the United States (US) to resolve these three types of conflicts.^{Footnote 57} In particular, based on Brainerd Currie’s realist view of ‘new choice of law’ that choice of law decisions centre on policy choices, Joerges translates the question of global governance into one of conflict of laws among multiple regulatory regimes in the globalizing legal landscape.^{Footnote 58} Thus, under the rubric of the conflicts-law approach, the Joerges School puts forward a ‘three-dimensional conflicts law’ as the key to global governance overshadowed by potential regime collisions.^{Footnote 59} In articulating this three-dimensional conflicts law, Joerges shifts emphasis from the relationship between regulatory regimes to the types of regulatory bodies involved in transnational regulation.^{Footnote 60}

Under this analytic framework, conflicts law of the first dimension deals with the relationship between two formally autonomous regulatory bodies in global governance, including inter-state, inter-treaty regime, and state-treaty regime relations.^{Footnote 61} Joerges emphasizes that the conflicts-law approach does not subscribe to the view that democratic legitimacy has been fully transposed to transnational regulatory arrangements, although the democratic form of the modern state is problematic.^{Footnote 62} Transnational regulatory regimes, which work in co-operation with states concerned, are regarded as a mechanism of enhancing the democratic legitimacy of the modern state. For this reason, in the EU example, the relationship between EU and member states with respect to regulatory competence should not be regarded as hierarchical. Rather, underlying the seemingly supremacy of the EU law with respect to its enumerated competences of regulation is a special ‘conflicts law’ that is aimed to resolve the jurisdictional conflicts between member states.^{Footnote 63} In other words, to make sense of the relationship between the EU and the member states, we need to understand the rationale behind choosing the EU law over national laws. What decides the supremacy, or, rather, primacy of the EU law is not the hierarchical structure in which the EU is seen as sitting above member states but rather the better accommodation of individual expectations provided by the EU law, thereby alleviating the democracy deficit of national laws.^{Footnote 64} In this train of thought, Joerges notes the relationship between the WTO and the EU as another example of the conflicts law of the first dimension.^{Footnote 65}

Compared to this conflicts law of the first dimension, the second and third dimensions of conflicts law respond to the rise of unorthodox legal measures and regulatory arrangements in global governance. In its second dimension, conflicts law concerns new transnational arrangements in which transnational bureaucrats and representatives of national administrative agencies hammer out regulatory policies with the participation of nongovernmental experts.^{Footnote 66} These hybrid regulatory bodies function as better accommodating arrangements as to individual expectations in the face of regulatory issues that require the cooperation between private individuals and public officials. Comitology of the EU is regarded as the best example in the second dimension of conflicts law.^{Footnote 67}

In addition, as the function of accommodating individual expectations exceeds the capacity of traditional administrative bodies and other regulatory arrangements in the contemporary complex regulatory environment, nongovernmental entities are formed taking on the regulatory role. Thus, the conflicts law of the third dimension is conceived as a normative response to the ramifications of the ‘self-justifying ruling power’ of ‘non-statal institutions and para-legal regimes’.^{Footnote 68} ‘[H]ow to open up law to informal or para-legal regimes’ constitutes the central concern in the third dimension of conflicts law.^{Footnote 69} The standardization bodies involved in the concretization of various safety standards in the EU regulatory regime illustrate the third dimension of conflicts law.^{Footnote 70}

Taken as a whole, Joerges’s three-dimensional conflicts law comes down to the legal processes within the innovative institutional arrangements through which criss-crossing transboundary regulations are to be negotiated and managed so as to avoid legal conflicts in global governance. As the conflicts-law approach attributes the problem of global governance to the problematic nature of national democratic institutions, the three-dimensional conflicts law seems to suggest a solution to the democracy deficit facing nation states as it functions to dissolve regulatory and policy conflicts through legal mechanisms. How the Joerges School takes this further and turns the three-dimensional conflicts law into the incubator of transnational democracy is among the themes I address next.

Governing fragmentation in global governance: legal management or democratic juridification?

Both GAL and the conflicts-law approach concern the de facto self-justifying governance authorities independent of nation states. Also, both aim to resolve the inter-regime conflicts resulting from fragmented global governance within a legal framework.^{Footnote 71} In response, GAL analogizes the issue of global governance to that resulting from the rise of the modern administrative state.^{Footnote 72} From this perspective, the underlying concern of the administrative state is the lack of political accountability of administrative agencies. Modelled after the development of the US administrative law,^{Footnote 73} GAL is focused on how to enhance the legitimacy and rationality of the exercise of regulatory power by procedural safeguards of administrative decisions. The issue of how to steer interrelationship between regulatory regimes is thus secondary to the establishment of procedural safeguards of decision making in individual regulatory regimes. It should be resolved by some ‘conflicts of laws arrangements’ that operate in accordance with the principle of proportionality and balancing on a case-by-case basis. To sum up, legal management through balancing characterizes the way that GAL responds to fragmented global governance.^{Footnote 74}

In contrast, the conflicts-law approach attributes the fundamental challenge from global governance to the democratic institutions in the modern state. Accordingly, it rests its proposed solution on the legal processes in which conflict of laws issues regarding global governance are resolved and the democracy deficit of nation states are compensated for, which the Joerges School provocatively characterizes as ‘democratic juridification’.^{Footnote 75} In the eyes of the conflicts-law approach, conflict lies at the core of global governance. Moreover, the underlying cause of inter-regime conflicts is the insufficiency of the democratic institutions in the modern state to accommodate individual expectations in the face of complex regulatory issues. In other words, traditional democratic mechanisms fail to live up to high hopes for its epistemic function of recognizing and responding to regulatory and other societal needs satisfactorily.^{Footnote 76}

Against this backdrop, recast in its three-dimensional response to new organizational configuration of global governance, the new conflicts law as preached by the Joerges School in effect makes a strong claim on democracy in its attempt to resolve various types of conflicts between regulatory regimes.^{Footnote 77} While the conflicts-law approach appears to ‘juridify’ global governance by translating inter-regime conflicts into conflict of laws issues, what lies beneath this attempt of juridification is the aspiration to accommodate the diverse needs of different individuals or stakeholders through innovative organizational arrangements under which the epistemic failure of traditional democratic institutions can be addressed. Characterized as ‘democratic juridification’,^{Footnote 78} the three-dimensional conflicts-law arrangement is not only a law proper but also an instance of institutionalized democracy, corresponding to the epistemic function of the democratic processes and thus paving the way for its further constitutional claims on global governance.^{Footnote 79}

Against the background of populist democracy: discovering GAL’s elusive constitutional vision

Nico Krisch, one of the founding theorists of the GAL project, challenges the ‘constitutional ambition’ held by scholars of different stripes who have attempted to frame global governance in legal terms. In contrast to those constitutionalist approaches, he rests the legal vision of GAL on non-constitutional terms, asserting that GAL’s constitutional unambition makes it a more desirable legal solution to the issues of global governance.^{Footnote 81} Nevertheless, it does not mean that the idea of constitutionalism or constitution does not exist in GAL at all.^{Footnote 82} To see how it relates to constitutionalism, we need to take a short detour for the evolution of law-making processes in global governance.

At the core of the phenomenon of global law-making in relation to global governance is what Jean Cohen calls ‘the juridification of the new world order’.^{Footnote 83} In traditional international law, state consent is the legal basis for the authority of international legal regimes and national constitutions provide the framework within which controversies regarding state consent are resolved. In contrast to the Westphalian world composed of national jurisdictions, the world order envisaged by legal globalists does not rest entirely on state consent. Rather, it emerges mainly from a global process of juridification whose linkage to an individual state’s will and its constitutional framework has been loosened.^{Footnote 84}

More importantly, the global process of juridification is set apart from the development of ‘juridification’ in municipal law by the way that the law is conceived. In contrast to the court-centred concept of domestic juridification,^{Footnote 85} the global process of juridification extends to the operation of non-judicial actors in global governance. Through the lens of global juridification, the modus operandi of each subject field that emerges from the practice of everyday governance is institutionalized through myriad self-regulatory networks, developing into a networked global legal regime.^{Footnote 86} Moreover, the global legal regime generalizes and stabilizes normative expectations in each sector of subject matter and thus enhances global governance. Taken together, the networked norm-making regime is embedded in the norms that autonomously materialize in the processes in which governance becomes globalized.^{Footnote 87}

Furthermore, this new model of norm-making is regarded as constituting a kind of ‘ultimate rule of recognition’ on a global scale, according to which the distinction between law and non-law is made. On this view, the question of what is law and non-law in the traditional municipal legal system can no longer be decided solely by reference to national constitutions.^{Footnote 88} Rather, it has to be determined in light of the global rule of recognition in that municipal legal systems are re-conceptualized as components of the globalized legal system, suggesting the emergence of a ‘constitutional’ order for the world.^{Footnote 89} In this way, those GAL norms, i.e., the regulatory norms that underlie global administration and draw the attention of the GAL camp, not only play the pivotal role in the juridification of global governance but also seem to assume the constitutional function for a globalizing legal order as they develop the criteria of distinguishing law from non-law in global governance.^{Footnote 90}

Layered with normative implications, GAL norms spill further into global constitutionalism.^{Footnote 91} As pointed out above, GAL norms echo their domestic counterpart, comprising the normative values of due process, transparency, and accountability at the core of constitutionalism. Some of GAL’s main proponents have argued that GAL norms fall short of a ‘framework of a more constitutionalist character’ because they leave out the decisions concerning ‘important questions of principle (who should have ultimate authority?)’.^{Footnote 92} On the other hand, however, GAL norms have notably been equated with ‘all the rules and procedures that help ensure the accountability of global administration’.^{Footnote 93} In light of the increasing self-constitutionalization of the emerging legal regimes beyond the nation state,^{Footnote 94} the normative values underpinning the GAL norms appear to pave the way for the constitutionalization of global governance.^{Footnote 95}

It is noteworthy that our experiences with constitutionalism are formed in the legacies of state constitutionalism,^{Footnote 96} which further frame our imagination of the new global constitutional ordering. Accordingly, the trend to extend constitutional ordering beyond the state needs to be analysed in light of our inherited constitutional experiences.^{Footnote 97} Among the legacies of state constitutionalism, citizens’ inclination to turn to the guardian of the constitution, mostly the (constitutional) courts, to hold the government to account for fully implementing constitutionalism is the underlying cause of the contemporary expansion of constitutionalism, driving the constitutionalization of politics.^{Footnote 98} Moreover, the inclination to turn to the court and its equivalent for the full implementation of constitutionalism by interpreting the constitution in light of the idea of justice is rooted in a modernist state of mind, in which the centrality of constitution to the rule of law idea is conceived. On this view, the state power ordained by the constitution is conceived of as part of ‘a project of theory, as well as of practice’.^{Footnote 99} The state or the polity cannot be disassociated from the idea of justice but is rather considered the means to achieve justice. Correspondingly, a constitution that underlies the state or a polity is to be read and interpreted through theories of justice. As the multiplication of the functions of fundamental rights and the expansion of the catalogue of constitutional rights suggest,^{Footnote 100} the full implementation of constitutionalism is carried out by reading theories of justice into a constitution. For this reason, constitutionalism tends to be tied to the idea of justice, standing as the ideal model of a sophisticated legal system.^{Footnote 101} Viewed this way, it is conceivable that GAL norms are taking on constitutional character as it continues to perfect its normative values.^{Footnote 102}

Thus, the development of GAL norms extends beyond the pragmatism of functional administration to global constitutionalism with the increase of its constitutional spillover effects. In other words, from a functionalist point of view, GAL norms have evolved close to a so-called small-c constitution.^{Footnote 103} Even so, advocates for GAL stand firm against attempts to conceptualize GAL norms in constitutional terms. GAL disputes the constitutional character of the law that emerges from the global law-making processes as noted above.^{Footnote 104}

The insistence on the non-constitutional character of the global law-making process suggests that GAL makes two assumptions on constitutional ordering. First, GAL makes an empirical assumption of the functioning of existing national constitutional orders. As its diagnosis of the issues resulting from the exercise of transnational regulatory power suggests, what needs to be addressed is how to enhance the political accountability of administrative bodies without questioning the institutional designs enshrined in national constitutions.^{Footnote 105} This attitude corresponds to the US response to the rise of the modern administrative state. As this period of US history indicated, the political system resting on the US Constitution was not regarded as problematic. The democratic legitimacy of the US constitutional regime was not called into question. Instead, administrative law reform, which resulted in the enactment of the US 1947 Administrative Procedure Act, was the legal remedy for the lack of political accountability as a consequence of the rise of the administrative state.^{Footnote 106} Paralleling the US experience that focused on the enhancement of the political accountability of administrative bodies, GAL assumes that the core of existing national constitutions is still well-functioning without questioning their legitimacy. Enhancing the political accountability of transnational and domestic administrative bodies constitutes GAL’s underlying concern.

Second, relating to this empirical assumption, GAL assumes a particular conception of the process in which a constitution, or, rather, a national constitution, is created. Questioning the constitutionalist approaches to the legal issues of global governance, GAL points to the traditional association of a constitution with a political community and a demos. Constitutions only materialize in political communities. Only when a demos resorts to its constituent power can it give a constitution to the political community in which it resides.^{Footnote 107}

Thus, assuming a conception of constitutionalism that is rooted in the idea of popular sovereignty, GAL rejects the call for global constitutionalism. This conception of constitutionalism echoes the French-American revolutionary tradition of constitution-making.^{Footnote 108} A constitution owes its legitimacy to the exercise of the constituent power by the people, i.e., the demos. The process that results in the making of a constitution is not only political in nature but is also to be separated from normal law-making processes.^{Footnote 109} For this reason, the GAL project denies itself any constitutional implications because there exists no separate process of global constitution-making from the global law-making processes in which GAL norms takes shape. Instead, it subscribes to the prima facie legitimacy of national constitutions in that they are perceived to have been conceived in the demos-centred political processes.^{Footnote 110}

To sum up, as a global political community remains elusive, if not lacking at all, GAL insists, there is no bestowing constitutional character upon the law resulting from the global law-making processes, even if GAL norms have functioned as a small-c constitution of global governance. In resisting the move towards global constitutionalism, GAL empirically assumes the effectiveness and legitimacy of existing national constitutions. Moreover, despite its self-consciously disavowing any constitutional claim, it implicitly accedes to a populist conception of constitutionalism, which associates the democratic process of constitution-making with the idea of popular sovereignty.

Beyond the constitutional ambition of the conflicts-law approach: an emerging epistemic constitutionalism?

In its attempt to resolve regime collisions resulting from the emergence of unconventional regulatory bodies and fragmented global governance, the conflicts-law approach sets itself apart from traditional conflict of laws by resting its own legitimacy on its claimed democratic character. As many commentators have already indicated, the conflicts-law approach re-orients the apolitical, universalistic character of its nineteenth-century private international law predecessors by linking the conflicts of laws to the mediation of the conflicts between legal regimes.^{Footnote 111} On the one hand, Joerges traces the intellectual roots of the current conflicts-law approach to the nineteenth-century private international law theories of von Savigny as well as Joseph Story.^{Footnote 112} He subscribes to the view that private international law is oriented towards interstate co-operation and universalism with an eye to stabilizing individual expectations in international transaction.^{Footnote 113} Yet, he parts company with his nineteenth-century predecessors over the nature of private international law. Instead of resting private international law on ‘an apolitical Gesellschaft’, Joerges turns to Currie’s conflict of laws theory.^{Footnote 114} Through this realist lens, the choice between conflicting legal regimes is concerned with policy decision.^{Footnote 115} Thus, the conflicts-law approach deviates from the apolitical Savignian legacy. Rather, it regards the choice of legal systems governing the issue at hand as a matter of policy making in the tradition of legal realism, which is political in nature, rather than an articulation of universal norms.^{Footnote 116}

As a whole, Joerges re-characterizes the legacy of private international law by shifting focus from its universal claim to the steering of inter-regime relations to its functional role in providing a platform on which conflicts between legal regimes can be resolved.^{Footnote 117} Yet, departing from Currie’s seemingly nationalist position in favour of the law of the forum, the conflicts-law approach points to the factor of institutional design in the decisions regarding the choice of law.^{Footnote 118} Defying the legalist, even doctrinalist, view of conflict of laws, the conflicts-law approach claims to be rooted in democracy as it regards itself as providing a solution to the question of democracy deficit haunting the democratic form of nation states.^{Footnote 119} To drive this point home, Currie’s nationalist position is reinterpreted in light of institutionalized democracy in nation states. The conflicts-law approach argues that Currie’s preference for the law of the forum is not a reflection of nationalism. Rather, it suggests that in the world order underpinned by nations states, each state is assumed to be an equal democracy with the legislature/parliament as the principal political mechanism through which public opinions are channelled into policy making. Thus, in terms of democratic legitimacy, the forum court should choose the law of the forum, which is enacted by the domestic legislature, over foreign law.^{Footnote 120} In this way, Currie’s seemingly nationalist strand of conflict of laws theory is treated as a legal response to the state of democracy at his time.

As noted above, however, the conflicts-law approach points out that the self-contained nation state has been eroded as a result of economic globalization. The decision-making mechanism as epitomized in the nation state does not control the effect of its policy choices, spilling over beyond its boundaries. This spillover effect of policy choices in the age of globalization defines contemporary legal conflicts.^{Footnote 121} For this reason, when private international law fulfils its traditional function in the mediation of legal conflicts, it also plays a role in the resolution of the democracy deficit rooted in the state-centred world order. To the extent that the three-dimensional conflicts law functions as the platform on which the democracy deficits of traditional national legal systems and their resulting conflicting external effects can be compensated, the conflicts-law approach takes on democratic character.^{Footnote 122}

Further along this line of thought, the central role of traditional national parliaments and their function in policy making are regarded as being eroded too.^{Footnote 123} As a consequence, parliaments are no longer superior to courts in terms of democratic legitimacy and thus there is no reason to assume that parliaments are better placed to resolve policy issues. Instead, Joerges suggests that through what he calls ‘a discovery procedure of practice’ underpinning the legal processes in resolving the conflicts of regulatory regimes in global governance, the conflicts-law approach is capable of lending legitimacy to the entities that exercise governance authorities.^{Footnote 124} Under the conflicts-law approach, the institutional innovations in response to global governance as indicated in the three-dimensional conflicts law as well as courts will be chosen over other political channels as the desirable institution in addressing contemporary legal conflicts and the fundamental concerns of cross-border democracy deficit because of their superior democratic credentials.^{Footnote 125} Thus, in resolving the conflicts of regulatory regimes, conflicts law transmits legitimacy to those who exercise powers in global governance. Moreover, as the applicable law emerging from the confrontation, negotiation, and compromise between conflicting regulatory regimes in global governance is decided in accordance with conflicts law, the three-dimensional conflicts law further functions as the ‘law of law production’.^{Footnote 126}

It is here where the conflicts-law approach reveals its constitutional ambition. On the one hand, the law that steers global governance turns out to be the applicable law chosen in each exercise of conflict of laws decision. In this way, the three-dimensional conflicts law assumes the traditional constitutional function in governing law production. Moreover, committed to the normative principles of constitutionalism, conflicts law distinguishes itself from its intellectual predecessors by undergoing a deep process of constitutionalization as it rests more on normative values than on functional concerns.^{Footnote 127} Taken together, to the extent that conflicts law rests its mediating role in regime collisions on democratic concerns, the conflicts-law approach seems to realign the law with democracy. It is through this alignment of law and democracy that the three-dimensional conflicts law legitimately and normatively decides the law steering global governance and thus emerges as the prototype of transnational/global constitutionalism.^{Footnote 128}

However, a closer look at the conflicts-law approach reveals that its image of law more resembles that held dear by its nineteenth-century private international law predecessors, especially von Savigny, than embodies a democracy-rooted archetype of constitutional ordering. Based in the reality of the postnational world order, the conflicts-law approach does not rest its claim of democratic character on a transnational political community.^{Footnote 129} Rather, the conflicts-law approach acknowledges the emergence of different legal orders alongside national legal systems and regards each legal system as resulting from the interaction of stakeholders involved.^{Footnote 130} In the eyes of the conflicts-law approach, the democracy deficit of traditional democratic mechanisms lies in failing its epistemic function of recognizing and responding to regulatory and other societal needs satisfactorily. Thus, the different institutional configurations of global governance as conceived by the conflicts-law approach are expected to compensate for the democracy deficit by providing the institutional platform in which regulatory needs can be adequately addressed with the input of required knowledge and information from epistemic communities concerned.^{Footnote 131} In each instance of conflicts law decision, within and without the court, it is a democratic imperative for the conflicts of law arrangements to take account of the interests of the stakeholders by maintaining the integrity of each legal regime in conflict. To this end, judges in the judicial proceedings and other players in extrajudicial conflict of laws settings have to weigh and balance interests and different factors in resolving legal conflicts without the integrity of each legal regime being prejudiced.^{Footnote 132} Moreover, weighing and balancing in each instance of legal conflict management is conducted with an eye to achieving justice ‘in the concrete operations in place’.^{Footnote 133} In this way, law finds democratic legitimacy within, not without, the legal system.

Looked at this way, the multiple epistemic communities (including the legal profession), which consist of stakeholders with different epistemic backgrounds and are in charge of steering the inter-regime relations in each instance of legal conflict management, judicial or not, are expected to act as the ‘organ’ of transnational democracy in the form of the mediation of legal conflicts.^{Footnote 134} Interestingly, this echoes the liberal reform of modern international law in the nineteenth century when it was proposed that a legal scientific institute be established as the ‘“organ” of legal conscience-consciousness of the civilized world’.^{Footnote 135} According to Martti Koskenniemi, the centrality of legal academics as epitomized in the nineteenth-century liberal reform of modern international law can be traced to the German historical school of law, particularly von Savigny.^{Footnote 136} As a reaction against the abstract rationalism of Enlightenment thought and as a critique against the legislating of comprehensive codes, von Savigny stressed, ‘Positive law lives in the common consciousness of the people’.^{Footnote 137} Moreover, Koskenniemi notes, ‘[t]he word “positive” here had nothing to do with recognition by each and every member of the Volk, nor with majority decision’. Rather, ‘it denoted a real, supra-individual historical process’.^{Footnote 138} What is important here is that this ‘organic theory’ was directed at ‘a renewal of legal scholarship’.^{Footnote 139} In other words, to von Savigny’s mind, the ‘Volk’ was ‘a cultural concept, an intellectual tradition and not an actual people’.^{Footnote 140} Thus, ‘a community was neither a raw notion nor a bundle of free-floating individuals but an institution and a history’.^{Footnote 141} It is here where the role of legal profession, academic lawyers in particular, comes into play. Under von Savigny’s view of the volkish law, the academic lawyers ‘stand in a reflexive relationship to the Volk; taking the law as they find it in a nation’s history and customs and exposing it in the codes they prepare for the nation’.^{Footnote 142}

In other words, as the principal holder of knowledge necessary to make sense of the volkish law, the Savignian community of academic lawyers serves as the prototype of the epistemic communities at the heart of the conflicts-law approach. Both acquire the epistemic sensitivity to the dynamics in which their object of knowledge evolves.^{Footnote 143} While the Savignian community of academic lawyers embodies the apolitical character of this universalistic volkish law, the epistemic communities underpinning the conflicts-law approach depart from the universalistic orientation of von Savigny’s private international law and instead brace themselves for the role of politics in the operation of transnational constitutionalism. Nevertheless, the image of law as revealed in the conflicts-law approach in conceiving of global constitutionalism heightens the positing of groups of stakeholders with the special epistemic discernment of their respective fields of knowledge, echoing von Savigny and his followers in the nineteenth-century liberal reform of modern international law.^{Footnote 144}

If so, democratic aspirations of the conflicts-law approach seem to stand in stark contrast to populist constitutionalism in the French-American revolutionary tradition of constitution-making. Rather, its ‘democratic’ claim of constitutionalism evokes the epistemic conception of constitutionalism. In contrast to populist constitutionalism, the constitutional form of the conflicts-law approach takes the existence of non-state legal systems as its starting point instead of identifying an ultimate source of political authority.^{Footnote 145} Moreover, it ascribes democratic character to these already existing legal regimes in terms of their epistemic function. Instead of choosing between these legal orders with variances on their democratic character, the conflicts-law approach accepts the maintenance of the integrity of each legal regime in conflict as the baseline concept of postnational democracy and transnational constitutionalism. To substantiate these premises, the conflicts-law approach appeals to the mediating role of the law as the proxy of democracy.^{Footnote 146} In this way, the conception of constitutionalism conceived in the conflicts-law approach resolves the constituent power and its democratic implications into the application of the law, suggesting a version of constitutionalism based on an epistemic understanding of democracy.

Political judgment and constitutional (un)ambition

With respect to the constitutionalization of global governance, GAL and the conflicts-law approach stand in stark contrast: the former shows a kind of constitutional timidity, refusing to view global governance in constitutional terms; the latter’s self-designated champion of transnational constitutionalism reeks of constitutional conceit. Moving beyond the surface of two opposite constitutional mentalities, the contrast between GAL and the conflicts-law approach reflects two distinct versions of constitutionalism: the former emerges against a background concept of constitution rooted in the tradition of populist democracy; the latter is based on an epistemic understanding of democracy. Neither version of constitutionalism gives full account of the constitutional condition of global governance.^{Footnote 147} Of course, neither GAL nor the conflicts-law approach should be taken as aiming to provide a definitive answer to the issues surrounding global governance. Nevertheless, each stance suggests a particular political judgment on the state of global governance.

In the eyes of GAL, the perceived constitutional politics of global governance would be closely intertwined with the founding and re-founding of a political order, which is supposed to stand apart from politics of legal interpretation within the complex of legal systems in transnational regulation.^{Footnote 148} As a result, GAL disavows any constitutional ambition, while it is focused on the issue of accountability deficit overshadowing regulatory bodies in global governance. Moreover, GAL’s distancing itself from the effort of constitutionalizing current global governance suggests its sceptical attitude towards the capacity of global politics to re-found the global political ordering on a constitutional basis. In other words, compared to its national counterparts, a global civil society that would underpin a global political community is judged as rudimentary, falling far shy of generating an order-founding political process.^{Footnote 149} On this view, ‘constitution talks’ about global governance is rhetoric at best. Even worse, it would distract attention from the reform effort to rein in global governance by the rule of law.^{Footnote 150} As a whole, from the vantage point of GAL, nation states remain the main arenas where political actions take place; a version of politics that is capable of transforming global governance into constitutional ordering remains elusive on the global scale.

If GAL’s constitutional unambition implies the suspension of constitutionalizing the juridification of global governance, the conflicts-law approach displays the opposite. Calling for the constitutionalization of global governance, the conflicts-law approach entertains the judgment that the juridification of global governance without constitutional underpinnings would be vulnerable to the whims of world politics and global economy.^{Footnote 151} Accordingly, as part of the effort to reform the practice of global governance, the conflicts-law approach sets out to claim the mantle of leadership in global constitutionalism through its theoretical stance. With theoretical innovation, the conflicts-law approach believes that constitutionalism would thrive in the global legal landscape, resting global governance on solid normative foundations. In this way, the conflicts-law approach acts as the herald of a looming global constitutional moment.^{Footnote 152}

In sum, the contrast between GAL and the conflicts-law approach in regard to the constitutional question indicates their differing judgments on whether constitutionalization would play a positive role in the continuing reform of global governance. GAL’s scepticism about the move towards global constitutionalism suggests its unease about how those state-embedded constitutional ideas can possibly be transposed to the pluralistic transnational settings; the conflicts-law approach’s optimism about the constitutionalization of global governance results from its critical stance on the political institutions in national democracy.