The Nature of Public Law

Abstract

This chapter explains that the nature of the concept of public law is revealed only by examining the conditions of its formation. Public law is a modern concept which offers an account of governing authority in legal terms and is formed by reworking the medieval idea of natural law against the background of the emergence of the modern idea of the sovereign state. The nature of the concept is explained mainly through an examination of the writing of Bodin, Pufendorf, and Rousseau. The objective of this treatment is twofold. It shows, first, that public law is a broader concept than positive law: it comprises the entire body of rules, principles, practices, and maxims that establish, sustain, and regulate the activity of governing the state. Secondly, it enables us to appreciate not only the scope, function, and operative principles of the concept but also its ambiguous character. These ambiguities, it is argued, permeate modern public law thought, leaving it with a polarized consciousness that remains evident in a variety of influential studies of the subject. The chapter concludes by claiming that although public law may not assume an aesthetically pleasing form, it remains an effective medium through which to grasp the nature of the challenges with which the activity of governing is confronted today.