Book

The Nature of Public Law

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Abstract

Public law has been conceived in many different ways, sometimes overlapping, often conflicting. However in recent years a common theme running through the discussions of public law is one of loss. What function and future can public law have in this rapidly transforming landscape, where globalized states and supranational institutions have ever-increasing importance? The contributions to this volume take stock of the idea, concepts, and values of public law as it has developed alongside the growth of the modern state, and assess its continued usefulness as a distinct area of legal inquiry and normativity in light of various historical trends and contemporary pressures affecting the global configuration of law in general. Divided into three parts, the first provides a conceptual, philosophical, and historical understanding of the nature of public law, the nature of private law and the relationship between the public, the private, and the concept of law. The second part focuses on the domains, values, and functions of public law in contemporary (state) legal practice, as seen, in part, through its relationship with private domains, values, and functions. The final part engages with the new legal scholarship on global transformation, analysing the changes in public law at the national level, including the new forms of interpenetration of public and private in the market state, as well as exploring the ubiquitous use of public law values and concepts beyond the state.
Article
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Traditional ideas about the private nature of the international legal order are increasingly being forced to contend with the development of public legal elements at the international level. The notion of the international community interest is key to understanding these developments and, as such, has transformed our understanding of international law. There are many different approaches to the public/private distinction in law, broadly categorised into relational, public authority, and interest-based approaches. These can be reduced to four key elements of publicness: the existence of a community or public; the universality of the public regime in question with its own boundaries; normative and institutional hierarchies; the objectivity of obligation and responsibility. The development of the community interest and related norms of international law can be seen to have introduced and strengthened all of these elements of publicness within the international legal system. It is thus on its way to becoming an international public legal order. This has important implications for our understanding of international law and the future development of the international legal order.
Chapter
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Die ideengeschichtliche Entwicklung des Begriffs des öffentlichen Rechts ist vor allem durch den Versuch geprägt, mit dem öffentlichen Recht einen eigenständigen Bereich innerhalb der Gesamtheit einer Rechtsordnung zu identifizieren. Insbesondere die Abgrenzung zum Privatrecht steht dabei im Mittelpunkt der Überlegungen. Nach einer vielfach verwendeten Begriffsbestimmung umfasst das öffentliche Recht diejenigen Regelungen, die das Verhältnis der Staatsorgane zueinander oder das vertikale Verhältnis zwischen Staat und Bürger regeln.
Chapter
This article seeks to elaborate a description of Administrative Law in a society differentiated in autopoietic social systems. I will employ Niklas Luhmann’s social systems theory to grasp the societal dimension of Administrative Law and characterize its systemic rationality in contemporary society. My aim is to develop a sociologically informed theory that explains why this particular field of law is configured as it is today. What is at stake is the identification of the operative logic lying behind the heterogeneity of its positive manifestations. This endeavor, if successful (or convincing), promises to: generate an unified and coherent account of Administrative Law, highlighting its regulatory core features and its distinguishing identity; focus the interplay between Administrative Law and administrative power in society; complement the predominant dogmatical discourse of administrative legal science, allowing the scholar to look at Administrative Law from a different angle and engage in a re-description and reconceptualization of its main institutes and categories. My central thesis is that current Administrative Law evinces an intersystemic rationality, translated in legal configurations that aim at regulatory reflexiveness, the establishment of structural couplings and the promotion of environmental observation. Such intersystemic rationality is an answer to the functional and organizational differentiation of society in autonomous social systems, as well as to the challenges that ensue for both the Law and the Public Administration. Finally, I focus how the aforementioned configuration of Administrative Law is, on the one hand, an essential resource for administrative power to better disseminate and assert itself across society and, on the other hand, an instrument of administrative self-legitimation. I engage in a systemic and epistemic reading of democracy to still ascribe democratic quality to said legitimation.
Article
The Final Report of the Referendum Council, which includes the Uluru Statement from the Heart, is a formal claim on the Australian people and its governing institutions. The claim is for a new conception of the unity of the Australian people so that for the first time historically it includes the Aboriginal and Torres Strait Islander peoples as the first sovereign nations of Australia. This is the significance of the recommendation that a First Nations Voice to Parliament be established in the Australian Constitution. This is not just a claim on the Australian constitution; it is a claim in public law that offers a new political‐constitutional horizon of intelligibility for the Australian constitution. In the current reception of the Final Report, this has not been properly understood.
Article
This text demonstrates some new paradigms which most directly point out the organic and vital connection of constitutional and administrative law in public law. It is the author's viewpoint that the examples of '' governance ‘‘, '' administrative constitutionalism '', and ‘‘ libertarian administrative law '' demonstrate the dynamic process of adaptation and articulation of contemporary public law to the political process of the modern state and its transborder associations. Even though the stated and other paradigms are still far from final answers, it is evident and undeniable practice that precisely they show the permanent efforts of a constitutionally democratic state towards perfection. In this sense, paradigms always point to the existence of a holistic legal process of detection and resolution of certain issues. This is why constitutional-legislative analysis of fundamental constitutional political issues and problems, their administrative processing and judicial detection and resolution constantly demonstrate the need for internal integrity and coherence of the public legal complexity of state and law.
Chapter
Die ideengeschichtliche Entwicklung des Begriffs des öffentlichen Rechts ist vor allem durch den Versuch geprägt, mit dem öffentlichen Recht einen eigenständigen Bereich innerhalb der Gesamtheit einer Rechtsordnung zu identifizieren.
Thesis
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This dissertation studies the theoretical turn in contemporary British public law scholarship with a view to understanding what is it that public lawyers do when they theorise their subject. The diversification and expansion of theoretical writings that has animated the theoretical turn was inspired by the belief that the atheoretical character of public law scholarship made it unsuited to address the contemporary problems of the field. From the critique of the ‘dismal’ performance of public lawyers came a call to scholars to embark on a search for the foundations of their subject. Most of those who answered this call understood the task to be undertaken as an inquiry into the principles or values that ground and give normative force to public law. In this sense, most approaches within contemporary British public law theory constitute a species of constructivism whose variations differ according to the theoretical resources that are employed (critical social theory, moral philosophy or political theory) and what is taken to be the normative centre of the field (the administrative process, judicial review or political accountability). Although constructivism has been dominant, it would be wrong to assume that all conceptions could be subsumed under that category. There are, I argue, two principal alternative approaches. One, called deconstructivism, contends that theory has a tendency to become estranged from practice because it fails to acknowledge constitutional change and overestimates the role of principles, creating the conditions for the unreflective reproduction of a number of ‘myths’ which have to be dispelled by uncovering the empirical foundations of the subject. The other, labelled reconstructivism, argues instead that the theorist cannot make sense of the field and its present predicaments without understanding the particular historical evolution of the subject which has been informed by competing traditions of thought. Against a widespread assumption, my contention is that these theoretical approaches are not only competitive but also complementary. Without denying that these conceptions are semantically and methodologically incommensurable, I show that this pluralised theoretical landscape represents a decisive enlargement of the understanding of the subject.
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