The End of the Road to Serfdom?
University of Toronto Law Journal, Forthcoming
23 Pages Posted: 31 Mar 2012
Date Written: 2012
This is a review article of Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010). The promise of the book is that the retrieval of public law understood as a prudential discourse of public right will show us how liberal democratic societies have learned to negotiate between the horns of the fundamental dilemma Loughlin supposes we face. This is the dilemma articulated by Rousseau: a society has, on the one hand, to take deliberate steps to produce through law free citizens in order to ensure that it is one in which freedom endures, and, on the other hand, such steps create the danger of ‘bureaucratic oppression’ of the sort that produces a society composed of chiefs and slaves. However, at the end of the book Loughlin suggests that the dilemma has been resolved and that we are in danger of finding ourselves living, or perhaps even are already living, in the society of chiefs and slaves. And if the idea of public right is retrieved only to show that it is either moribund or dead, we have reached the end of what FA Hayek called in 1944 ‘the road to serfdom.’ I argue that Loughlin comes to this surprising conclusion because of a fundamental flaw in his argument about the rule of law, in which he both reduces the rule of law to an instrument of power and suggests that it has to fail on its own terms.
Keywords: Public Law, Rule of Law, Rechtsstaat, ius, lex, legal positivism, constituent power
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