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
January 25, 2015
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.
Number of Pages in PDF File: 29
Keywords: public law, private law, authority, globalization, governance, discourse theory
Date posted: May 4, 2013 ; Last revised: January 26, 2015