Professor Loughlin's Idea of Public Law

Nicholas W. Barber

University of Oxford - Faculty of Law

2005

(2005) 25 Oxford Journal of Legal Studies 157-167
Oxford Legal Studies Research Paper

Abstract:     
The Idea of Public Law is a rich and complex book. Martin Loughlin examines a number of key concepts in public law, looking at, amongst other topics, sovereignty, rights, representation and constituent power. These are analyzed in the style that has characterized Loughlin’s previous work: a potent mixture of historical survey and political theory. Loughlin’s instance that the elements of constitutional theory can only be fully understood once placed in their historical context pays dividends: several of the chapters illuminate concepts obscured by the ahistorical turn of contemporary writing. Loughlin’s goals are ambitious: his book aspires to explain the nature of public law and to reveal it as an autonomous part of legal systems. Stripping public law of political ideology, though continuing to insist on its intimate connection with the practice of politics, Loughlin hopes to provide us with a ‘pure’ theory of public law, an entity that has remained hidden from view until now. In very brief terms, Loughlin contends that public law comprises those precepts of conduct that regulate and constitute the activity of government. These precepts are generated through political competition, and are distinctively prudential in aim and origin. They are prudential in aim, as they seek to preserve and foster the stability and authority of the state. They are prudential in origin, as they emerge through reflection on past experience and history. Public law therefore ties the constituent power of the people, their raw political ability to change and establish governmental frameworks, with the power of the offices of state. Politics is the activity that seeks to preserve and strengthen this bond. For Loughlin, this connection illuminates the interplay between legal and political sovereignty, with the legal premised on the political. This reasoning leads Loughlin to two conclusions. First, that public law’s special connection with the political reveals the discipline to be a discrete area of law; one which is fundamentally split from private law. Secondly, that there is a distinct realm of the political, separate from the moral; consequently, it is possible to articulate a ‘pure’ theory of public law, which is neither dependent on moral assertions nor subject to moral evaluation. Loughlin’s theory of public law is ‘pure’ in two respects: in its separation from private law and in its isolation from morality.

There are two divisions and one connection that Loughlin must establish for his argument to hold. First, a sharp divide must be drawn between the political and the moral. Secondly, a sharp divide must be drawn between public and private law. These two divisions must then be brought together: the political must pair up with the public; the moral must pair with the private. Loughlin asserts only the former connection, but he is probably committed to the latter as well. If private law was also the product of the political the autonomy of public law would be lost: its link to the political would no longer make it unique and the basis for its autonomy would disappear. Presumably private law must then rest on the moral – if not, it is hard to see what other values it could be animated by. Loughlin’s argument is weakened by his failure to address the second half of the equation: he does not provide a sustained account of the moral, to juxtapose with the political, nor of private law, to juxtapose against public law. A challenge may be made to Loughlin’s thesis in the context of each division, and, indirectly, to the further claim that the two divisions are connected. First, the split between the political and the moral may prove unsustainable. Secondly, Loughlin’s division between public and private law might fail. Finally, even if Loughlin could defend each division he might be unable to demonstrate that they connect: public and private law might embody a mix of moral and political considerations and values.
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