Questioning the Foundations of Public Law

Michael A Wilkinson, Michael W Dowdle, Michael A Wilkinson, Michael W Dowdle

• Publisher: Hart Publishing
• Year: 2018
• Print ISBN: 9781509941162
• eBook ISBN: 9781509911684
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

In 2010, Martin Loughlin, Professor of Public Law at the LSE, published Foundations of Public Law, 'an account of the foundation of the discipline of public law with a view to identifying its essential character'. The book has become a landmark in the field, and it has been said, notably by one of its major critics, that it now provides the 'starting point' for any deeper inquiry into the subject. The purpose of this volume is to engage critically with Foundations – conceptually, comparatively and historically – from the viewpoints of public law, private law, political, social and legal theory, as well as jurisdictional perspectives including the UK, US, India, and Continental Europe. Scholars also consider the legacy and continuing relevance of Foundations in the light of developments in transnational law, global law and regional integration in the European Union.

Part I

Introducing the Foundations of Public Law

1

Questioning the Foundations of Public Law and Questioning Foundations of Public law

MICHAEL A WILKINSON AND MICHAEL W DOWDLE

I.Introduction

This book is about Foundations of Public Law, but also about the foundations of public law.¹ The chapters do more than just address Martin Loughlin’s text; they examine broader issues surrounding the nature of the subject, its autonomy and its methodology, and the nature of the object with which it is so intimately associated; the modern state. Loughlin’s Foundations of Public Law, however, represents a distinct if not unique attempt to outline the conceptual building blocks of both subject and object, and it is where we will begin.

Foundations of Public Law represents both a challenge and an opportunity for the discipline. It offers a thorough reworking of the study of public law, converting it into a wide-ranging, interdisciplinary investigation into the foundational elements and evolutionary character of the modern state. This is challenging in its rejection of the idea that public law can meaningfully be captured through juridical doctrine alone, or by a method of positivist jurisprudence more generally. Instead, it requires an approach that is capable of incorporating political philosophy, political sociology and state theory. Public law is recast through Foundations as integral to these disciplines. Conversely, by bringing public law into conceptual and discursive interplay with these other disciplines, it provides a vital opportunity to free public law from its own jurisprudential straitjacket.

Such a reworking demands critical interrogation. Can public law maintain its internal coherence if extended in this way? Does Foundations offer the normative resources to renew the discipline in the context of the many serious challenges it faces? Is Foundations’ methodology a suitable one for understanding the concrete phenomena associated with public law? Can Foundations capture the idea of public law as it emerges and operates outside the European nation-state or after the exhaustion of the Westphalian paradigm? The purpose of this volume is to critically explore these questions, and to advance our understanding of the challenges Foundations poses, as well as the opportunities it provides for the development of the discipline.

Foundations offers a reconstruction of public law at once traditional and radical. It presents public law not simply as a discrete set of juridical doctrines and practices but as an integral part of our capacity to make political sense of the world. Public law is not an autonomous legal discipline, nor a doctrinal offshoot of private law or common law; it is an essential feature of the modern political imaginary. Public law, in this account, is not derivative but foundational to the construction and maintenance of the modern idea of the state.

If it is commonplace that in modernity the idea of the state and its authoritative apparatus of rule anchors our political being, Foundations argues this to be a thoroughly juridical phenomenon, but one that cannot be grasped by focusing on the judicial branch of government or the positive law alone. It can only be grasped through an analysis of the key conceptual building blocks of political authority, along with a thicker historical contextualisation of their evolution over time.

The outcome of this contextualisation suggests that, although central to ‘seeing and thinking like a state’, to constructing a scheme of political intelligibility, this juridical phenomenon is vulnerable, even in danger of being eclipsed, subverted or transformed in contemporary conditions—partly due to material transformations in the nature and techniques of governing and partly due to the pressures on the nation-state as the primary locus of political power and authority.² But the prospective loss is also a result of the increasingly specialised and technical nature of the discipline of public law (and jurisprudence more generally), a retreat encapsulated in the turn to systematisations of positive public law, which has its analogues in general jurisprudence (in diverse schools of legal positivism and legal pluralism).

Foundations of Public Law attempts to redefine the discipline of public law away from a court-centric doctrinal jurisprudence concerned primarily with judicial review—whether in positivist or moralist guise—towards a ‘political jurisprudence’. This proceeds by way of retrieval and refoundation of the discourse of public law and jurisprudence through a historical reconstruction of its origins and development.

In performing this radical reorientation of the enterprise of public law—radical only in the proper sense of uncovering and reclaiming its roots—Foundations draws on work in legal scholarship as well as writing in political theory, social theory, moral theory, state theory (Staatslehre), and political science. It does this in a historical rather than abstract orientation, integrating material from the UK, continental Europe, and the US, much of which has evolved independently, to offer an evolutionary narrative of public law, tracking the development of the modern state and the pressures it faces in the latter half of the twentieth century.

In the manner of this synchronic retrieval, Foundations develops a unique theoretical frame by incorporating writers in the cannon of political and legal philosophy—Hobbes and Rousseau, Kant and Hegel, Schmitt and Foucault, amongst many others—who have sought to uncover ‘the laws of the political’, or the basic rules and precepts of political association. Throughout Foundations, these giants of political philosophy are rendered central figures in the tradition of political jurisprudence and of a reconstructed public law.

For these reasons Foundations stands as deserving of special attention, not only from public law scholars, but also from political theorists, constitutional theorists, constitutional historians and all those interested in the fate of the modern constitutional state and the chances of its survival, renewal or transcendence. Even those who contest the particular claims made in Foundations, or doubt its overall endeavour, will not doubt that it contributes centrally to this project, if only, as one major critic notes, because it now provides the starting point for any deeper inquiry into the subject of public law.³

The purpose of this collection is to begin precisely such an inquiry. And it aims to do so in a thoroughly critical manner, taking neither the methodology nor the content of Foundations for granted. To pursue this aim, we have collected commentators from diverse traditions and disciplines to contest the claims—both general and particular—made in and by Foundations.

In the remainder of this introduction we first single out and examine in more detail two features in Foundations that stand out: the integration of law and politics into a coherent conceptual scheme, and the integration of the history of public law into the state’s evolving political form. We then turn to consider, categorise and summarise the series of trenchant critiques made of Foundations in the chapters that follow. Serious doubts remain about the viability of the project of Foundations as a whole, as well as about its discrete claims; the doubts raised are conceptual and synthetic, methodological as well as particular. These doubts—and the critiques that generate them—will be categorised here under four headings: methodological, normative, materialist, and comparative, in an attempt to organise the critical reflections, and provide some coherence to the endeavour.

II.Law and Politics

Constitutional theory and public law scholarship commonly approach politics as outside the law, to be tamed or contained by law, or even as antithetical to the logic of the law. Political order is presumed to follow a distinct logic of power, or to inhabit the realm of fact as opposed to norm. Alternatively, it is ignored, occluded by a formalist or positivistic approach to the constitution of the polity. In normativist traditions, particularly in the liberal constitutional imagination, public law exists to protect the individual from interference by the political organs of the state; constitutional scholarship then consists in identifying, specifying or offering suggestions for the consolidation or improvement of these structures, explicating their interrelationship and their overall architecture.

Foundations suggests this ubiquitous vision to be distorting. Public law, understood in the broader sense of political jurisprudence, does not simply constrain the organs of the state; it creates, shapes and maintains them. It does so by establishing and sustaining the governing relationship, between rulers and ruled. And since this governing relationship is not exhausted by the positive law narrowly conceived, public law as political jurisprudence captures all aspects of its institutionalisation and regulation, and also, significantly, those occasions of abrogation or suspension of ordinary forms and norms.

Public law as seen through the lens of political jurisprudence thus consists in the fundamental laws and practices that structure the governing relationship as well as those prudential judgments required to maintain—or regain—stability in that relationship. The set of practices and the manner of their ordering is captured in the term droit politique or ‘political right’. This might be usefully contrasted with what in the English-speaking world has emerged in the field referred to as ‘general jurisprudence’. If the purpose of general jurisprudence is to provide an account of the systemic coherence of positive law as such, the purpose of Foundations is to provide an account of the socio-epistemic coherence of the laws of politics, of what gives claims to political authority traction—and of what undermines them—in the world of lived experience.

To capture the phenomenon of public law therefore demands an analysis that transcends the positive law. This is reconstructed through an account of the key building blocks of ‘state’, ‘constitution’ and ‘government’, as they emerge and evolve in concrete public law traditions (especially but not limited to the German tradition of Staatslehre) and in tandem with classical works of political theory, from Hobbes through to Foucault, which seek to explain or deconstruct the grounds of authority of the modern state.

It is from the practice and discourse of political right as a state- and polity-building exercise that the distinctive jurisprudence of public law is reconstructed. The task of this political jurisprudence is to make theoretical and practical sense out of the various relations and configurations of power and authority that emerge, enabling their recognition as a set of relatively coherent phenomena. But because of the inherently conflictual nature of the human condition—conflict over material as well as symbolic resources—the ways in which relative coherence and stability are achieved will perpetually evolve.

For the governing process to remain in productive tension, converting conflict into manageable contest, an overall unity of purpose and character needs to be established and maintained through representational devices. And the dominant mode this takes in the context of modern public law is the unity of the state and autonomy of the political on which its power and authority rests. The arrangements of public law thus contribute to the maintenance of the state as a political unity, one that discharges political responsibility to its subjects.

This political unity, according to Loughlin, can never be fully captured by rule-based categories, not least because conflict can never be fully or finally resolved. If ‘the establishment of an autonomous domain of the political is therefore a historical achievement’,⁴ it is also a precarious one, particularly as through late modernity the legal-political coupling is put under increasing pressure from social, economic and geo-political developments.

The significance of this reconstruction—as well as the pressure it is put under—can be appreciated by considering that outside the Anglosphere, in both continental Europe and in Asia, the formational appeal of public law continues to exist precisely in its state-creating and state-shaping functions. The same can be said of the public law of the European Union, where the polity-building function of the law, as well as its limits in performing this function, is well documented and continues to offer an experimental case in reconfiguring relations of political power and authority. Foundations thus facilitates the cross-fertilisation of public law scholarship, representing the most promising framework to date for integrating diverse experiences of public law into a common discourse rooted in the particular context of modern European state development.

III.The Evolution of the Modern State

To expand on this last claim, we can consider briefly a crude version of the exercise in historical reconstruction. There are two key foundational shifts that occur with the emergence of the modern state. The first is a change in the belief system on which political authority rests: political jurisprudence thus captures the process of secularisation of authority, corresponding to Weber’s well known account of the process of modern ‘disenchantment’, involving a loss of faith in divine or substantive natural law. In a constitutional vernacular associated with the period of modern revolution, but which becomes widespread over time, ‘We, the people’ are the new foundation of political authority.

But Foundations rejects the equation of this process of secularisation with total positivisation of rules and norms, of the reduction of power to sheer coercive force, and the complete separation of fact and value. The normative power of the factual—including the symbolic imaginary—survives secularisation; disenchantment is far from total. This is nowhere more apparent than in the realm of public law, despite the pressures of modernisation. And the point of political jurisprudence is to capture in a scientific manner the ways in which the normative power of the factual is retained in the modern constitutional imagination (if also transformed in comparison to the medieval and the pre-modern understanding).

The second foundational shift that characterises the modern state is more material in nature: the evolution in the structures of power and authority necessary to produce and sustain a political community in the face of political and economic pressures. To respond comprehensively to military and other kinds of security threat and provide for the well-being of the people in conditions of economic scarcity requires the actual exercise of particular forms of governing power. This real power to dominate can be captured by the term, used initially by Spinoza, potentia, in contrast to a rightful claim to command and assert political rule understood as potestas.⁵ The state cannot govern by potestas alone; the legitimacy of the governing relationship must be based on more than a claim to a formal right to rule, even as its authority becomes increasingly rationalised on the basis of legal rules and formal practices. The state must generate allegiance through its actual achievement of certain public goods—not least in order for its claim to rightful rule to be credible and match a corresponding set of beliefs in its legitimacy on the part of those who are ruled.

To put the point differently, authority requires both a claim to rightful rule and the compulsion or compliance that corresponds with actual obedience; authority is de jure and de facto. But for the purpose of understanding public law in terms of political jurisprudence, it makes little sense to make a formal separation of these elements. Authority is thus not a purely normative concept—reducible either to moral principle or positive law. Neither, however, is it a purely materialist concept that can be reduced to sheer coercion or violence or any other causal forces of nature. It...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Table of Contents
• Contributors
• Part I: Introducing the Foundations of Public Law
• Part II: The Methodological Critique
• Part III: The Normative Critique
• Part IV: The Material Critique
• Part V: The Comparative Critique
• Part VI: The Response
• Bibliography
• Index
• Copyright Page