Constitutional Versus Administrative Ordering in an Era of Globalization and Privatization: Reflections on Sources of Legitimation in the Post-Westphalian Polity

Abstract

The current trend towards globalization and privatization has resulted in the proliferation of a plurality of legal regimes that lack the unity and hierarchy guaranteed by a working constitution in the typical nation-state. One important question raised by these developments is whether a suitable constitutional ordering and constitutional legitimation can succeed at the transnational level. In the alternative, it has been suggested that administrative ordering and legitimation may suffice, provided constitutional anchoring remains firm within the confines of the nation-state. With this in mind, this article explores the conceptual underpinnings of the contrast between a constitutional regime and an administrative one; assesses how these two regimes compare in relation to supra-national entities, focusing mainly on the EU; concentrates on the challenges posed by privatization; and considers whether public law ought to be re-conceived in light of the preceding analysis.

Keywords: constitutionalism, privatization, globalization, legitimacy, European Union, nation-state, global administrative law, public/private distinction