On the Necessarily Public Character of Law

Abstract

This paper asks whether and how modern law may be understood as necessarily public in character. It begins by looking at the two main ways - doctrinal and disciplinary - in which law is understood as only selectively and contingently public. In both these cases law's public quality is counterposed to its private quality. However, publicness can also be conceived of as the juridical master category embracing the public and the private in the disciplinary and doctrinal senses. This conception of the necessary and irreducible publicness of law draws on the tradition of ius publicum, recently revived in the Anglophone world in the work of Martin Loughlin. That body of thought conceives of the state as a pre-positive and generically public jural foundation - a scheme of intelligibility for making sense of the positive law (constitution, statute law, common law) of the state. This is a plausible and powerful way of understanding the history of the modern state-based, sovereigntist legal constellation. However, it may be challenged both methodologically for elevating the state-based account to the status of the only plausible narrative, and substantively for its inability to capture the state-decentring aspects of contemporary globalization. A conception of pre-positive publicness no longer simply proposed as a dominant, value-neutral historical paradigm of explanation, but now underpinned by a normative commitment to democracy, is proposed as way of addressing both the methodological and the substantive limitations of the ius publicum account.

Keywords: Public, Private, Doctrine, Discipline, Ius Publicum, Globalization