Questioning a Uniform Concept of Public Law

Abstract

In this paper I focus on the claim that it is possible to identify a general and substantial understanding of Public Law which has a significant bearing on our efforts to comprehend individual instances of public law within particular political communities or jurisdictions. It concentrates on the arguments Martin Loughlin puts forward in his book, FOUNDATIONS OF PUBLIC LAW, to advance a singular foundational understanding of public law, but also refers to arguments raised by Jack Goldsmith and Daryl Levinson in regarding “public law” as determining what a well-ordered, properly functioning state amounts to. The motivation for challenging a uniform concept of public law is based on three concerns. First, such a uniform concept detracts from the importance of local differences among individual cases of public law which are then considered subservient to a general normative trajectory inherent in public law itself, serving to determine the well-ordered state. Secondly, the marginalisation of local differences distracts attention from the peculiar social and political conditions (conditions that in an important sense precede the legal) which determined the precise contours and characteristics of the public law of a particular political community or jurisdiction. Thirdly, a uniform juristic concept of public law elevates the legal to a position that may become unstable, or dangerous. Within the paper I challenge four key positions adopted by Loughlin in his book: the autonomy of public law; the general relationship between a science of political right and public law; the idea of political jurisprudence as a prudential approximation for a science of political right; and, the grammar of public law. In the course of making these challenges, I attempt some wider reflections on the manner in which tensions within the political community or the law are negotiated and resolved; on the idea of a coherent conceptual scheme within a Wittgensteinian perspective on language; and on the puzzle of the strange confidence placed in the legal over the political. Or, to rephrase that last point as a question: Why should public law succeed where ideology has failed?