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A Matter of Perspective: Global Governance and the Distinction between Public and Private Authority (and Not Law)

29 Pages Posted: 4 May 2013 Last revised: 26 Jan 2015

Matthias Goldmann

Max Planck Institute for Comparative Public Law and International Law; Goethe University Frankfurt - Research Center SAFE; Goethe University Frankfurt - Cluster of Excellence Normative Orders; Goethe University Frankfurt

Date Written: January 25, 2015

Abstract

This paper argues that even in times of global governance, a distinction between public and private authority is both desirable and feasible, at least as a regulative idea. The distinction between private and public law suffers from complications stemming from different understandings of the relationship between state and society in liberalism and republicanism. Discourse theory with its idea of the co-origin of democracy and human rights re-conceptualizes the relationship between state and society in a way that does justice to both liberal and republican approaches. Accordingly, the private/public distinction is crucial for the realization of democracy and freedom. However, the emergence of global governance has raised the question whether the distinction can be maintained. The paper first recalibrates discourse theory for the realities of global governance, shifting the focus from public law to a broader notion of public authority, and from the state to a pluralistic, cosmopolitan world order. Second, in such a setting, the distinction between communicative and strategic action, one of the bedrocks of discourse theory, provides a key for the distinction between public and private authority on a global level: communicative action characterizes communities. Accordingly, public authority is the authority exercised on behalf of a community in relation to its members. In relation to non-members, the same act may constitute an exercise of private authority. It is a different question whether such acts are legitimate. Some examples illustrate the approach. They confirm common convictions about the public/private distinction, while providing some unexpected insights.

Keywords: public law, private law, authority, globalization, governance, discourse theory

Suggested Citation

Goldmann, Matthias, A Matter of Perspective: Global Governance and the Distinction between Public and Private Authority (and Not Law) (January 25, 2015). Available at SSRN: https://ssrn.com/abstract=2260293 or http://dx.doi.org/10.2139/ssrn.2260293

Matthias Goldmann (Contact Author)

Goethe University Frankfurt ( email )

Theodor-W.-Adorno-Platz 3
HoF H4
Frankfurt, 60629
Germany

HOME PAGE: http://https://www.jura.uni-frankfurt.de/62222403/Goldmann

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

HOME PAGE: http://www.mpil.de/ww/en/pub/organization/scientific_staff/mgoldman.cfm

Goethe University Frankfurt - Research Center SAFE

House of Finance
Theodor-W.-Adorno-Platz 3
Frankfurt am Main, 60323
Germany

HOME PAGE: http://www.safe-frankfurt.de

Goethe University Frankfurt - Cluster of Excellence Normative Orders ( email )

Germany

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