The Idea of Public Law

Citation

Loughlin, M. (2003). The Idea of Public Law. Oxford University Press.

Chapter Summary

Context and Argument

Loughlin, Professor of Public Law at the London School of Economics when the book appeared, argues that public law must be treated as a special, indeed autonomous, subject. In his view many of the difficulties and controversies of contemporary jurisprudence and of public law practice come from neglecting or suppressing that claim. The influence of legal positivism has, on his account, obscured the distinctive character of the subject, which is formed by the tasks it performs. His method is therefore to ask what public law does, in order to show how it does it.

The argument is conceptual and uses history. The book explains the idea of public law as it evolved in modern European thought and draws on political thinkers such as Bodin, Hobbes, Locke and Pufendorf, together with modern scholars, to show the juristic significance of political thought. It then argues that the basic building blocks of the subject are governing, politics, representation, sovereignty, constituent power and rights, and uses them to say what the nature and method of public law are. The text runs to about 160 pages in nine chapters.

Chapter 1: Introduction

A short opening chapter (pp. 1–4) states the question, the claim that public law is an autonomous subject, and the approach of inquiring into what public law does.

Chapter 2: Governing

The chapter begins from the activity that public law regulates. It considers governing and the distinction between rulers and ruled, and the emergence of the modern state and the expansion of its tasks. It is the first of the six building-block chapters.

Chapter 3: Politics

The chapter (pp. 32–52) takes the second building block, politics, and so the relation between public law and the political sphere in which government operates.

Chapter 4: Representation

The chapter treats representation as a basic element of public law and as a source of legitimacy for governmental authority, and examines its historical development and the models of representation that follow.

Chapter 5: Sovereignty

At 27 pages this is, with Governing, the longest of the building-block chapters. It traces the idea of sovereignty and its relationship to the state, and the implications for legal and political theory.

Chapter 6: Constituent Power

The chapter looks at the authority to create or change the constitutional order and the tension between democratic legitimacy and legal continuity.

Chapter 7: Rights

The chapter examines rights in public law, from the history of rights theories to their role in limiting governmental power.

Chapter 8: Method

The chapter draws the conceptual elements together into an account of the method of public law, the framework for understanding it in its own terms.

Chapter 9: The Pure Theory of Public Law

The last chapter presents the outline of public law as an autonomous discipline that the earlier chapters build towards. The book ends with notes and an index.

Key Concepts

Chapters 1–3

• Autonomy of public law: public law has a distinct character because of the tasks it performs, and cannot be treated as an extension of private law or political theory.
• Critique of legal positivism: the view that positivism has separated law from its social and political origins and so obscured the character of public law.
• Governing and politics: the activity that public law regulates, and the political setting of that activity.

Chapters 4–7

• Representation: the relationship by which government acts for and is legitimised by the people.
• Sovereignty: the supreme authority claimed by the state.
• Constituent power: the power to make or remake the constitutional order.
• Rights: the claims that limit and shape governmental power.

Chapters 8–9

• Method of public law: the way the subject is to be understood, from what it does.
• Pure theory of public law: the classificatory frame that the book offers for the subject.

Critical Analysis

Strengths

• A single sustained argument. The book follows one thesis through nine chapters, so it reads as a single monograph and not a collection of essays. The six building blocks give the argument an explicit architecture.
• Combines political thought and legal analysis. The use of Bodin, Hobbes, Locke and Pufendorf shows readers that public law's categories have an intellectual history, which helps them to read doctrine more critically.
• A challenge to the dominant presentation. Because it challenges the dominant positivist way of presenting the subject, it is useful for students who want to think about what public law is for, and not only what the rules are.
• Compact. About 160 pages of text make it manageable for a reader who wants the theory without a very long treatise.

Limitations

• Demanding for beginners. It assumes familiarity with legal and political theory, and it offers no doctrinal introduction to the institutions or cases of any legal system. A student without that background will find it hard.
• One school's argument. The claim that public law is autonomous and the critique of positivism are contested. Read the book as one side of a debate and compare it with positivist accounts.
• Abstract. The method is conceptual and historical, so it gives little help with applying law to particular problems.
• Date. Published in 2003, it predates later developments in constitutional law.

Where It Fits in the Course

Among the constitutional and administrative law titles, the textbooks (Bradley and others; Le Sueur and others) and Harlow and others' Law and Administration teach the institutions and doctrines. Hickman's Public Law after the Human Rights Act is a specialised monograph on one development. Bingham's The Rule of Law is an accessible essay on one principle. Loughlin's The British Constitution: A Very Short Introduction is the author's shorter and easier book on the British case.

This is the course's most theoretical title. It is best read after a doctrinal textbook has supplied the material that it analyses, and after the Very Short Introduction if the reader wants to meet the author's ideas in a gentler form.

How to Use This Book

It is written for graduate students and advanced undergraduates, and for scholars interested in the foundations of public law. A first course in constitutional or administrative law and some exposure to political theory are the sensible prerequisites.

A practical plan:

• Start with the Introduction and the last two chapters (Method and The Pure Theory of Public Law) to see where the argument is going.
• Then read the six building-block chapters in order, from Governing to Rights, taking notes on how each concept is defined.
• Pair chapters with doctrine: read Representation and Sovereignty alongside the sections of your textbook on parliamentary sovereignty and the electoral system, and Rights alongside the human rights material.
• Test the thesis: after reading, write a paragraph setting out the positivist view that Loughlin criticises and your assessment of his reply.