Ersatz Normativity or Public Law in Global Governance: The Hard Case of International Prescriptions for National Infrastructure Regulation

摘要

Taking global prescriptions for national infrastructure regulation as a case study, this Article examines the nature and implications of the mingling of law, governance, and economics that is increasingly prevalent in global regulatory governance. It focuses on three sets of formally non-binding but influential instruments issued in the 2000s by the World Bank, the OECD, and UNCITRAL, each of which promotes far-reaching reforms to existing public law and institutions. The Article excavates these instrumentsu27 unarticulated theories of the state and its roles, and their visions of the nature and preferred features of law. It explores the use by these instruments of law-like hierarchies of norms and their deployment of legal concepts within a hybrid vocabulary of law, economics, and policy disciplines. This may amount merely to ersatz normativity. But this Article posits that, by bringing discourses of public law and regulatory governance into relation, instruments of this kind open possibilities for renovation of traditional public law within the state through the opening to an incipient global public law. The production and use of these instruments largely escapes the reach of orthodox public and private international law, and of national constitutional or administrative law. Conceivably, global public law could transform the ways in which such prescriptions are developed, and their invocation in particular cases, and might eventually contribute to the reimagination or reinvigoration of public law as a distinct mode of ordering. To assess whether these are possibilities, we take the infrastructure provisions as a u27hard caseu27 against which to analyze two approaches to global public law: u27international public authorityu27 and u27global administrative law.u27 The infrastructure case illustrates significant limits in the current doctrinal framings and institutional specificities of these approaches, and indicates the importance of future struggles among multiple different political and legal projects concerning the roles of law in global regulatory governance.