A Matter of Perspective: Global Governance and the Distinction between Public and Private Authority (and Not Law)
Max Planck Institute for Comparative Public Law and International Law
November 4, 2013
The emergence of global governance has raised the question whether it is still possible and meaningful to distinguish between private and public law, institutions, procedures, or instruments. This paper argues that a clear-cut distinction between public and private authority on the international level is both necessary and feasible.While the significance of this distinction had long been under dispute between individualistic (or liberal) and holistic (or republican) approaches to the relationship between state and society, discourse theory reconceptualizes the relationship between state and society and confirms the need for such a distinction. The emergence of global governance requires shifting the focus of discourse theory from public law to public authority, and from a single society to a pluralistic order. On this basis, the distinction between public and private authority becomes one of perspective: “public” is the authority exercised within a certain self-defined community in the interest of that community, and “private” the authority by which the actors pursue their self-interest. To the extent that private authority creates externalities, it requires regulation or needs to be shifted to an institution which is able to exercise public authority for a community including all relevant individuals and entities. However, not every community has a shared identity required for the legitimate exercise of public authority. The operationalization of this approach leads to some unexpected insights about the classification and legitimacy of certain phenomena in domestic and international law.
Number of Pages in PDF File: 28
Keywords: public law, private law, authority, globalization, governanceworking papers series
Date posted: May 4, 2013 ; Last revised: November 5, 2013
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