Public Law and the Autonomy of the Political: A Material Critique

Abstract

Modern public law, according to Martin Loughlin’s Foundations of Public Law, depends upon the autonomy of the political realm. This is explained on the basis of an orthodox secularisation thesis of modernity, the autonomy of the political emerging through its successful separation from the theological. But when viewed in relation to the economic (the material realm), the autonomy of political ordering looks more fragile, subject to the continuing struggle between democracy and capitalism. The concrete features of this struggle are explored by way of a stylised diachronic overview of the transformation of the Western European state and regional state-system in the twentieth century, first with the interwar breakdown of political order, then with postwar reconstruction in the project of European integration. In the recent Euro-crisis phase it again enters a critical period. All of this, however, escapes the lens of a purely political jurisprudence.