I would like to comment on a significant part, albeit a rather small one contentwise, of Dr Sinclair’s very interesting book – To Reform the World: the use of administrative law analogies in relation with the making of modern international organizations. Before going further, we would need to agree on a definition of analogy. Popular culture may help in that regard. According to Britta Perry, a student at Greendale Community College in the TV Show Community (video available here), an analogy can be defined as “a thought with another thought’s hat on”. In her convincing de Beauvoiresque analogy between “weddings” and “little girls’ tea parties”, Britta however highlights three differences between them, while analogies are generally focusing on “accepted similarities between two systems” (P. Bartha, “Analogy and Analogical Reasoning”, The Stanford Encyclopedia of Philosophy, available here).
Legal analogy, for Chaïm Perelman and Lucie Olbrechts-Tyteca, is not defined as an imperfect resemblance, but as an identity of relations within different domains (See C. Perelman & L. Olbrechts-Tyteca, La nouvelle rhétorique. Traité de l’argumentation, PUF, 1958, p. 500). Analogy then implies that a is to b like c is to d. The goal is to explain a relation that is unknown (a to b), called theme, with the help of a known relations (c to d), called phore. The theme states what one means or wishes to prove, while the phore states what one says so that it may better be expressed or proven. For example, One good piece of news does not guarantee happiness is like one swallow does not make a summer (O. Reboul, “The Figure and the Argument”, in M. Meyer (ed.), From Metaphysics to Rhetoric, Kluwer Academic Publishers, 1989, pp. 175-176). The phore is generally more concrete, or at least more familiar, than the theme. It is the resemblance between the two relations which allows us to infer the fourth term from the three others. We prove b given a, c and d, since the relation between a and b resembles that between c and d. The point of the reasoning, in this example, is that “one has no right to generalize”.
We should also distinguish analogies from metaphors. The metaphor occurs when analogy is condensed through the omission of certain terms. It reduces the resemblance to an identity by evacuating the difference. One can say to reassure an old person anxious about death that it is only a kind of sleep. This metaphor implies an analogy : that death is to living like sleep is to waking (O. Reboul, “The Figure and the Argument”, op.cit., pp. 175-176).
I would like to focus on one particular specie of analogy, the one in which the phore (the known relation) is domestic law, also known as domestic analogies.
Domestic analogies implies a similarity between domestic and international phenomena, in particular that “the condition of order within states are similar to those between them, and that therefore those institutions which sustain order domestically should be reproduced at the international level” (H. Suganami, The Domestic Analogy and World Order Proposals, Cambridge University Press, 1989, p. 1). The main argument behind the use of the domestic analogy by Suganami is that the instability of the international system is to be attributed to its decentralized structure.
In Guy Sinclair’s very interesting book that we are commenting here, domestic analogies come in mainly two incarnations. We first meet the analogy of constitutional growth and second the analogy of international administration. Although I will mainly focus on the second one, I would like to have a quick look first at the constitutional growth analogy.
The analogy of constitutional growth has, according to Dr Sinclair, two origins. It is drawn upon an American tradition of thought about living constitutions in domestic legal systems; the claim that the constitution has a dynamic meaning or that it has the properties of an animate being in the sense that it evolves over time (G. F. Sinclair, To Reform the World, p. 18). Such a Darwinian vision of the constitution, originated by Howard Lee McBain, implies that its boundaries are dynamic, congruent with the needs of society as it changes (G. F. Sinclair, To Reform the World, p. 18).
Constitutional growth also originates from what Georg Jellinek termed “constitutional transformation”, understood as the change that allows the text to remain formally unchanged and is caused by facts that need not to be accompanied by an intention or awareness of the change (G. F. Sinclair, To Reform the World, p. 18).
Constitutional growth is used by Dr Sinclair in an analogical reasoning that highlights the resemblances between a theme, highlighting that constituent instruments of international organizations are evolving, and a phore, the fact that domestic constitutions are considered to be living instruments, for which a constitutional growth is a natural, organic process.
By recalling that in each of its three case study, the constituent instruments of the respective organizations was considered analogous to domestic constitutions, Dr Sinclair shows that the constitutional analogy helped the process of acceptability of changes incarnated by notions of emergency powers, necessity and exception (G. F. Sinclair, To Reform the World, pp. 39-40; p. 204). The analogy of constitutional growth ultimately helped, according to Dr Sinclair, to imagine and legitimize transformation in the governing practices of both International organizations and States.
Let me now turn to the other public law domestic analogy used by Dr Sinclair, the international administration.
It seems that the idea of an international administration finds its origin, for Dr Sinclair, in the figure of the international civil servant, who is seen as “bridging national and international forms of government with an ideal combination of personal virtue, specialist knowledge, and fidelity to the law” (G. F. Sinclair, To Reform the World, p. 19).
As part of the international administration, the civil servant appeared to act following what Dr Sinclair called “a self-consciously administrative mode of thinking about representing and practicing law” (G. F. Sinclair, To Reform the World, p. 19).
I must admit I had some problems first to identify what “administrative mode of thinking” meant; a concept that I found rather vague. This analogy, when transposed to the Perelman/Olbrechts-Tyteca model, tends to expose a somehow imperfect structure in which: civil servants of international organizations (a) are acting like an administration (b) is like domestic civil servants (c) are part of an administration (d). In this analogy b and d appeared to be quite similar, if not identical given that it is quite clear that domestic administrations also act like an administration because they are an administration.
I decided then to find out more about what this administrative mode of thinking concretely meant.
The first manifestation of this administrative dimension is that the expanding role of expertise within the ILO contributed to a view of its functions as essentially administrative in nature. Came with a functional, administrative view of the law to the international sphere, the fact that the civil servant was more perceived as a specialized technician than a diplomat (G. F. Sinclair, To Reform the World, p. 72). I also found this relation between the international civil servants and expertise in other parts of Dr Sinclair’s book.
As a second manifestation, Dr Sinclair highlights that the ILO’s work was described in the “mundane terminology of administration” (G. F. Sinclair, To Reform the World, p. 70). In the literature produced in the first decades of the ILO, the organization but also the whole network of international bodies was described as an “international administration”. It was indeed at that time that the new field of administrative international law was emerging, represented by scholars such as Paul Reinsch, Enrico Catellani or Pierre Kazansky.
I then realized that there is in fact, in this idea of international administration, two intertwined but distinct analogies fulfilling different functions.
The first analogy links civil servants and expertise. Civil servants of international organizations are seen more as experts than diplomats is like domestic civil servants are performing technical tasks.
In this first analogy, the domestic source of the phore seems to be found in the Swedish tradition of public administration, later exported by former Secretary-General Dag Hammerskjöld to the UN.
The function fulfilled by this analogy is a heuristic one (See, for example, J. Salmon, “Le raisonnement par analogie en droit international public”, in Droit international et argumentation, Bruylant, 2014, p. 286). It translate and transpose to the international realm an approach to governance. It provides a “common imaginary” (G. F. Sinclair, To Reform the World, p. 294) which has the purpose, according to Dr Sinclair, to make the informal expansion of international organizations’ powers seem “natural and inevitable” (Idem).
The second analogy links international organization and administrative functions. International organizations have functions protecting the interests of individuals is like domestic administrations have administrative functions.
At the source of the idea that international organizations can be seen as part of an international administration is the idea that they are protecting the interests of individuals rather than the interests of the States. According to Kazansky, five functions were particularly concerned : the means of communications between people, police, social interests, health and the protection of workers’ interests (P. Kazansky, “Théorie de l’administration internationale”, RGDIP, 1902, p. 362).
The function fulfilled by this second analogy is a creative one, an analogy to fill lacunas. In the first decades of the twentieth century, as rightly pointed out by Dr Sinclair (G. F. Sinclair, To Reform the World, p. 70), there was indeed no proper discipline of the law of international organizations or international institutional law. The new field of international administrative law was there to fill this lacuna. With the progressive construction of international institutional law, this field did lose its function, and its existence is almost forgotten nowadays.
Both analogies have something in common. It is the relationship between administrating and acting, or being perceived as acting, like an Administration. In this context, what matters is not what they are actually doing, but what international organizations believe they are doing. Or what external observers are interpreting in their actions. Both are analogies because, even though acting like an administration and administrating are similar, they are not identical.
At the end of this journey, I was however still a bit confused regarding two aspects of Dr Sinclair argumentation.
In several occasions, Dr Sinclair mentioned a different path without exploring it further: the path of global administrative law (G. F. Sinclair, To Reform the World, pp. 5-6; p. 109; p. 295). It is recalled, for example, that global administrative law assembles new conceptual and normative frameworks through which problematic institutional practice can be analyzed, subject to critique, and remedied (Ibid., pp. 5-6). Or that ILO is considered as one type of administrative actor in a global administrative space (Ibid., p. 109).
Global administrative law is also based on an analogical reasoning. But a different one than the two main administrative analogies that I described before. Its function is to frame the authority exercised by global institutions by imposing, or rather by promoting, the respect of a set of administrative law type of principles (See E. Fromageau, La théorie des institutions du droit administratif global. Étude des interactions avec le droit international public, Bruylant, 2016, pp. 96-99).
My second source of confusion is the jump made in the conclusions of Dr Sinclair’s book from international administration to administrative law. According to Dr Sinclair, “the activities of IO came to be seen as a form of international administration, parallel to and intricately connected with the growth of state bureaucraties in Europe, North America, and their colonial territories. The law that international organizations created, and which regulated their activities, could be considered a species of administrative law” (G. F. Sinclair, To Reform the World, p. 293, italics mine).
I am, of course, not confused by the fact that what could be considered as an international administration could also be considered as a form of administrative law. However, this jump from an institutional analogy to a normative one is not self-explanatory and could have benefited from more argumentative steps.
In conclusion, I must acknowledge the risk that Dr Sinclair took by using domestic analogies as one, even rather small, part of his argumentation. Using domestic analogies is indeed a risk. The risk is to be misunderstood, or understood differently depending on the reader’s point of view. When used with caution, domestic analogies could be nevertheless powerful explanatory tools and Dr Sinclair’s book is a great example in that regard.