Rethinking the Public-Private Law Divide in the Age of Governmentality and Network Governance: A Comparative Analysis of French, English and Dutch Law

Abstract

This article presents an analysis of the ways in which the public-private law divide is envisioned in French, English and Dutch law. First, it explains why French law’s tradition of regarding public and private law as ‘two separated worlds’ is now outmoded, failing to live up to the present trends of ‘governmentality’ and ‘network governance’ determining the modern art of government. Subsequently, it argues that the holistic tradition of English common law as French law’s conceptual counterpart is equally outmoded, with its ideology of ‘self-government’ within a ‘stateless society’ being out of touch with an age of governmental managerialism in which the state withdraws from society only to increase its grip on societal processes. Finally, it proposes a paradigm recently developed in Dutch doctrinal thought as an attractive theoretical framework for structural innovations that may contribute to a stable and legitimate system of modern European public law that attunes to its present context without being alienated from its central classical tenets – be it either those rooted in the French or the English tradition.

Keywords: public-private divide, public law, legal theory, comparative administrative law, governance, neoliberalism