Transcending the Public Law-Private Law Divide
Forthcoming in C Harlow (ed), A Research Agenda for Administrative Law (Edward Elgar 2022)
28 Pages Posted: 14 Jun 2022
Date Written: June 10, 2022
Nearly every major legal issue today implicates both public law and private law. Yet legal scholars have struggled to deliver solutions to many of these issues. A core reason for this is continuing reliance on the public law-private law division. That division offers a problematic basis for legal reasoning. It has little historical pedigree in the common law, is out of step with the organisation of contemporary society, is at odds with the structure of the legal system, and has encountered significant problems where invoked normatively. But perhaps the strongest argument for not deploying the division is that there are simply better modes of reasoning available to us, which are more likely to generate solutions to legal problems.
The chapter moves on to demonstrate how we might engage with complex legal questions in ways that avoid pitfalls associated with the division, arguing that orthodox legal methods offer a path forward. This argument is developed by reference to several possible research agendas: field-interaction; differential treatment of ‘public’ and ‘private’ entities; and novel challenges, including contracting-out, regulation of big tech, and global administrative law. Ultimately the chapter argues that specific problems call for specific solutions, and illustrates this approach by reference to examples drawn from a range of fields including tort, contract, human rights and judicial review.
Keywords: public law, private law, public-private divide, legal method, legal theory, legal taxonomy
JEL Classification: K00, K1, K23
Suggested Citation: Suggested Citation