The Politics of Rule of Law Reform: From Delegation to Autonomy

AuthorDeval Desai
DOIhttp://doi.org/10.1111/1468-2230.12554
Publication Date01 Nov 2020
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Modern Law Review
DOI:10.1111/1468-2230.12554
The Politics of Rule of Law Reform: From Delegation
to Autonomy
Deval Desai
How can we understand the delegation of power and authority – for example, from a polity
to an administrator - in a world of fragmented governance? In this paper,I introduce the prac-
tices of contemporary ‘rule of law’ and ‘governance’ reform, which reframe this question in p olitically
powerful ways.These practices are increasinglyimpor tant in development contexts, and beyond.
Practitioners begin with the assumption that some sort of administration occurs in the develop-
ment contexts in which they work.They then focus on how to convene a political community
in which to embed – and potentially legitimate - that administration. They therebyrecongure
the question of delegation into one of autonomy – or managing the extent to and ways in which
the administrative legal system self-produces. In doing so, I argue that contemporar y rule of law
practitioners wield constitutional power under the rubric of workaday administrative reform.
At the same time, they eace their political accountability.
INTRODUCTION
The shift from government to governance has altered the contemporary terrain
of debates over administration and its rules.1The state and its law are no longer
a precondition for,but have become one (of many) challenging objects of, ad-
ministration.Administrative rules are now understood to be diuse,multi-scalar,
and networked; they emerge from practices as much as pr inciples, and produce
complex normativities.2As a result, those theor ising administrative law out-
side of a state context (whether as a matter of abstraction or scale) struggle
to nd new frameworks of thought to capture this fragmented administrative
world. They increasingly move beyond the ‘domestic analogy’ to capture the
interactions between politics and administration – where neither politics nor
Lecturer in International Economic Law, University of Edinburgh Law School; and Postdoctoral
Research Fellow,Albert Hirschman Centre on Democracy,Graduate Institute,Geneva. I am grateful
to Michael Fakhri, David Kennedy,and Rebecca Tapscott for comments on earlier versions of this
paper.I am also g rateful to two anonymous reviewers for the constructive and careful comments. All
errors and omissions remain my own.
1 R.A.W.Rhodes, ‘Understanding Governance:TenYears On’(2007) 28 Organization Studies 1243;
R.A.W.Rhodes, ‘The Hollowing Out of the State: The Changing Nature of the Public Service
in Br itain’ (1994) 65 The Political Quarterly 138.
2 M.-S. Kuo,‘Law-Space Nexus, Global Governance, and Global Administrative Law’ in D. Stone
and K. Moloney (eds),The Oxford Handbook of Global Policy and Transnational Administration (Ox-
ford: OUP, 2019); N. Krisch, ‘Liquid Authority in Global Governance’ (2017) 9 International
Theory 237.
© 2020 The Author.The Modern Law Review© 2020 The Moder n Law ReviewLimited. (2020)83(6) MLR 1168–1187
Deval Desai
administration are fully constituted, but both still need to happen in a context
of the ‘diverse activities of a complex,multifarious world.’3
A central political question of this administrative law scholarship is delegation.
How can one understand the delegation of power and authority – for example,
from a polity to an administrator – in a world of fragmented governance? In
this scholarship,neither sovereign polity nor administrator is stably constituted –
and thus mapping the delegation of power and authority that legitimates ad-
ministrative action is analytically challenging,even as it is normatively desirable.
In par ticular, this fragmented, or postmoder n’, condition of administrative law4
troubles four basic yet once stable dimensions of delegation:what to delegate,
how to do so, from whom to whom, and on what principles. Scholars of ad-
ministrative law, transnational law, and international politics, in particular have
worked to capture and theorise the complexities and movement in each of these
four questions and stitch them together into some view of the administrative
lawofgovernance.
5
In this paper, I introduce a set of contemporary practices of governance re-
form that, rather than tackle this question, reframe it in what I argue are politi-
cally powerful, and perhaps troublesome, ways.These practices, under a general
rubric ofcontemporary ‘rule of law’ and ‘governance’ reform,are of i nterest becaus e of
the novelty of their approach,and also because of their scale.They are not in any
meaningful sense paradigmatic – in that they have not cohered into an agenda
or discipline. However, they emerge out of the operations of international de-
velopment (meaning they have transnational scale);and are large enough to be a
‘movement’6networked into a range of domestic and global public authorities
(inuencing their policies and expenditure).
As I will argue, they engage with, and move beyond, postmodern admin-
istrative law in ways that administrative law and regulation scholars need to
understand. These practices are novel insofar as they are marked by the self-
denial of the knowledge, power,and exper tise of their practitioners – or their
self-eacement – in ways that limit or bracket the constitutive role of these prac-
titioners. Not only do practitioners recognise the challenges of constituting a
polity and administrator,they embrace the challenges, continually pointing out
that it is impossible to adequately theorise who a polity and administrator might
be. Instead, they begin with the assumption that some sort of administration
occurs in the development contexts in which they work – ie that politics and
administration will always already be related in some way. They call this an ‘ad-
ministrative ction’. Their practices then focus on how to convene a political
3 P. Wapner, ‘Governance in Global Civil Society’ in O. Young (ed), Global Governance: Drawing
Insights from the Environmental Experience (Cambridge, MA: MIT Press,1997) 82.
4 K.-H. Ladeur, ‘The Postmodern Condition of Law and Societal ‘Management of Rules’’ (2016)
27 Zeitschrift für Rechtssoziologie 87; L. R. Hirshman, ‘Postmodern Jurisprudence and the Problem
of Administrative Discretion: Trends in the Law’ (1987) 82 Northwestern University Law Review
646.
5 For a summary,see A.von Bogdandy,M. Goldmann and I. Venzke,‘From Public International to
International Public Law:Translating WorldPublic Opinion into Inter national Public Authority’
(2017) 28 European Journal of International Law 115.
6 M. Andrews, L. Pritchett and M. Woolcock, Building State Capability: Evidence, Analysis, Action
(Oxford: OUP,2017).
© 2020 The Author.The Modern Law Review© 2020 The Moder n Law ReviewLimited.
(2020) 83(6) MLR 1168–1187 1169

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