Immanence and Irreconcilability: On the Character of Public Law as Political Jurisprudence

Abstract

In Foundations of Public Law, Martin Loughlin constructs an intricate conceptual triangle made up out of religion, law, and politics, in order to offer an account of the character of public law as a secular, political, jurisprudence. In this essay, I argue that this account takes neither religion nor law seriously - and this in revealingly similar ways. Loughlin’s book presents public law as an irreducibly paradoxical discourse, devoted to sustaining ‘the irreconcilable’ within society. Relative to this discourse, religion - understood by Loughlin as absolutist dogma - appears in the book only as a threat, whereas law - seen as a mere tool - becomes a necessary and innocent means for its support. I offer a critique of both these lines of argument, as not sufficiently attentive to religion and law as fields with their own histories, internal dynamics, and forms of efficacy. Religion, when seen in terms of practice, discipline, and ritual, in fact has much in common with - and considerable resources to offer to - Loughlin’s own vision of public law. And attention to the legalism so deeply embedded in juristic discourse reveals law as posing precisely the absolutist threat that Loughlin fears (but only associates with religion and ‘the social’). Bringing these two lines of argument together, I argue that Loughlin’s own ambition for public law as a prudential discourse of contained irreconcilability, is better served, not by striving for radical - and impossible - immanence, but by acknowledging that discourse’s dual character as a phenomenon both immanent and transcendent. I also suggest that ritual practice may have an important role to play in maintaining this dual, and paradoxical, character.