Summary
Summary LAWS10090 Constitutional Law Seminar 5 Notes from the Idea of Public Law
- Module
- LAWS10090
- Institution
- The University Of Edinburgh (ED)
LAWS10090 Constitutional Law Seminar 5 Notes from the Idea of Public Law
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Notes from the Idea of Public LawWhat is Public Law?
Public law is an autonomous discipline. Public law has a distinctive character that is formed from the
unique nature of the tasks it undertakes. The claim that public law constitutes an autonomous
discipline has become obscured in modern times. This is mainly due to the predominant influence
within jurisprudence of legal positivism. The general, and laudable, objective of positivism has been to
place the study of law on a scientific foundation. But legal positivists were able to establish law as a
separate subject of investigation only by drawing a distinction between law and the state or, in the
case of Hans Kelsen's more refined treatment, between the legal and the political.1 In order to be
scientifically understood, positivists claimed, law must be severed from its social and political origins:
positive law rests only on some postulated fact (a ‘rule of recognition’ whose existence is ‘an empirical,
though complex, question of fact’2) or on a hypothesis (a basic norm that validates other norms but
which is simply a presupposition that expresses the autonomy of legal order3). Such strategies might
be adequate for the purpose of presenting the idea of law as a system of civil obligation.4 But with
respect to public law, they are entirely inappropriate.
The reasons why this is the case are evident the moment we reflect on the basic tasks of public law,
which can briefly be defined as those concerning the constitution, maintenance and regulation of
governmental authority. Tasks of this nature cannot be understood without undertaking a detailed
inquiry into the relationship between law and the state, and into the affinities between the legal and
the political. The divisions on which legal positivism is founded—between law and state, between
positive law and natural law, between positive law and political philosophy—are precisely (p.2) those
that for public law must remain central issues of investigation. It makes no sense to commence an
inquiry into the idea of public law on assumptions—that state and law are distinct entities, that the
political and the legal are contrasting modes of discourse, or that government operating in the world
of fact and law occupying the normative realm belong to different worlds—that dispose of the
question.
What remains hidden from juristic knowledge within legal positivism is that it is only because of the
operation of public law that a system of private law with its own inner coherence is able to
function.5 Kelsen accepted as much when acknowledging that the maintenance of the duality of the
legal and the political ‘performs an ideological function of extraordinary significance’.6 If this is the
case, then this inquiry must be concerned with elaborating the conditions under which this
‘ideological function’ continues to be effectively performed.
In mainstream European thought, for example, the idea of public law evolved in the early modern
period, flourished during the late nineteenth and early twentieth centuries, but has since waned.8 The
situation with respect to the British case is different. In Britain, the modern conception of the subject
is founded on a negative proposition. Modern British history is based on a rejection of the idea of
public law.
The resulting confusion is thrown into relief by relaying the tale Charles Taylor tells about a passer-by
coming to the assistance of a drunk who is stumbling around late at night looking for his key under a
street lamp. After searching unsuccessfully for some time, the passer-by asks the drunk if he can
remember precisely where he dropped it. ‘Over there’, answers the drunk, pointing to a dark corner.
‘Then why are we searching for it here?’ ‘Because’, the drunk replies, ‘there's much more light
here’.12 So it is with public law in Britain. Rather than trying to reveal the shadowy practices of
government for the purpose of explaining the role of law in establishing and regulating this activity,
lawyers have shifted their ground. They have repositioned themselves so as to reveal the legal
framework of government in a sharper focus, but only at the cost of considerably narrowing the
boundaries of the subject. Having withdrawn from any serious attempt to explain the foundations of
,the authority structure of the British state, constitutional lawyers—in a manifest display of superficial
thinking—have concluded that public law does not exist.
Governing: Chapter 2
Public law maintains its distinctive character because of the singularity of its object. That object is the
activity of governing. With respect to this activity, law has a range of tasks to perform. It is only once
the nature of these tasks is appreciated that we are able to identify public law as a special body of
knowledge. But the nature of these tasks cannot be understood without first reflecting on the activity
of governing itself.
As a general phenomenon, the activity of governing exists whenever people are drawn into association
with one another, whether in families, firms, schools, or clubs. In order to maintain themselves, and
certainly to be able to develop and flourish, such groups must establish some set of governing
arrangements, however rudimentary. The formation of governing arrangements is a ubiquitous
feature of group life. Whatever the type of governing arrangement established, an iron law of necessity
holds sway. Since it simply is not possible for associations of any significant scale and degree of
permanence to be capable of governing themselves, the business of governing invariably requires die
drawing of a distinction that has become fundamental to die activity: the division between rulers and
ruled, between a governing authority and its subjects.
Although the general activity of governing is a feature of all human associations, a certain type of
association commands our special attention, and over which the struggle to establish authority has
been intense. That body has been given a variety of names. When, during the seventeenth century,
Thomas Hobbes sought to explicate its character, he made use of the expression ‘commonwealth’.5 In
modern terminology, however, the body is invariably referred to as ‘die state’.
Whatever the complexities of the modern notion of the state, we are able to recognize its basic identity
as that institution which claims the ultimate allegiance of its citizens and which maintains ‘the
monopoly of the legitimate use of physical force within a given territory’. Some scholars have argued
that the state is not qualitatively different from other group-units.8 But, especially given our juristic
objectives,9 it seems more appropriate to maintain that the state has a unique, if ambiguous, identity.
Because of its characteristic forms, distinctive ways and special tasks, die state should be regarded as
an association sui generis.
Aldiough die modern idea of the state is of central importance to our task, die main focus of inquiry at
this stage will not be on the state as such, but on die activity of governing dirough the institution of the
state. Three basic and related issues concerning die nature of diis activity need to be addressed. The
first is the question of the engagement of government: what are die main tasks that have been
allocated to (p.7) government? The second issue concerns modes of governing: how is the character
of the activity of governing to be conceptualized? The third involves an inquiry into the nature of the
office of government.
THE ENGAGEMENT OF GOVERNMENT
It might be argued that die task of governing has throughout history remained relatively constant. In
general, the basic engagement of government has been one of maintaining and enhancing the well-
being of die state and its people.
Unpacking the classical formulation, Hobbes concluded that the tasks of government fell into four
main categories: to maintain defence from external enemies; to preserve internal peace; to enable the
citizen to acquire wealth, so far as that is consistent with public security; and to promote the full
enjoyment of the citizen's liberty.17 This package presents itself as a relatively limited range of
activities. What government does within these categories, however, can vary considerably. The
, engagement of government is greatly affected by the knowledge-based and material resources at its
disposal. Before the modern period, such resources were highly limited, and the tasks of government
were correspondingly constrained. The scale and power of modern government has therefore grown in
tandem with the development of techniques that have strengthened the capacity of governments to
appropriate and deploy available resources in furtherance of these basic tasks. In the name of
promoting security, liberty, and prosperity, modern governments have greatly expanded the range of
their activities, and have now assumed responsibility for furthering economic and social development,
managing the economy, and providing for the welfare of their citizens.
The modern state is the institution through which such innovation was harnessed. With the
transmutation of the king's servants into officers of the state, a decisive step was taken in establishing
an impersonal, specialized administrative apparatus that could exploit developments in printing,
record-keeping, indexing, and such like.18Consequently, although the enforcement of justice and peace
continued to be exercised in the king's name, these activities increasingly had little to do with the
monarch.19 With the establishment of a specialized administration, statistical information-—‘political
arithmetic’ as it was called20—about the territory of die state and society was acquired: borders were
marked, maps of die country were drawn, and the population, property, and productive capacities of
society were measured.
This improved technical competence enabled the state to increase its efficiency in extracting revenues
by way of taxation.21 But as the ancient maxim of Tacitus states, (p.9) you need armies to maintain
peace and ‘you cannot have troops without pay, and you cannot raise pay without taxation’.22 So it was
that alongside the growth in revenue-generating capacity, and in a reversal of the thrust of the maxim,
a transformation in the nature and scale of warfare occurred. From being a series of essentially private
squabbles amongst members of the governing classes who drew on feudal obligations to form their
armies, warfare became a large-scale, disciplined, and highly technical activity.23 This was made
possible only because of the establishment of regular, hierarchically organized, and bureaucratically
managed armed forces of the state.
But perhaps the most significant changes in the tasks of government during the modern era have been
those that concern the management of the economy and the promotion of the welfare of society.
Government today is involved in these activities to an extent unimaginable even in the nineteenth
century. Consider, for example, the changing role of government with respect to the currency. The
function of pre-modern rulers in relation to the currency was not essentially to create value in money.
By impressing his seal on such valuable commodities as gold and silver, the king's function was mainly
that of confirming an existing value.25 By the twentieth century, however, government had become
centrally involved in the business of creating and destroying the value of money. The key stages in this
transformation might briefly be noted.
The growing involvement of government in the business of money is instructive. Once the state was in
a position to determine what counted as money, the financial restraints on governmental action—
restrictions that had caused rulers immense difficulties29—more or less evaporated. The fiscal levers
acquired by government effected a vast increase in governmental power.30 This power was applied
mainly for the purpose of strengthening the state's control over society. The changes wrought by
modernization and industrialization had eroded feudal ties and weakened the authority of the church.
The displacement of these traditional sources of social authority led to the emergence of property
ownership as the cement of modern social order. And after the possessing classes had acquired control
of the state—the singular achievement of the Glorious Revolution of 1688—the task of government
turned more explicitly to the protection of private property.
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