Government to State: Globalization, Regulation, and Governments as Legal Persons

Is the state dead, in retreat, or increasingly significant? Much of the globalization literature disputes these questions. Responses tend to vary according to the discipline invoked and its preexisting assumptions about the state. A legal account of the nation-state, together with an account of how the dominant legal conceptions are shifting, may provide fresh insights into the phenomenon of globalization. This paper focuses on how governments have typically been conceived as legal persons in the Anglo-American tradition and traces how the increasing significance of international treaties and contractual modes of governance has affected those conceptions. There is no single version of government as a legal entity. The law conceives of government differently depending on the subdiscipline involved. The internally-focused public law subdisciplines of administrative and constitutional law construct government as an entity fragmented by the separation of powers. The externally focused international law subdiscipline constructs government as a whole, unified in the executive. Contract law shares this version of government as a unified legal person dominated by the executive. How the government actor is constructed will depend on which