Is Public Law Ordinary?

AuthorMark D. Walters
Publication Date01 Sep 2012
Is Public Law Ordinary?
Mark D. Walters*
Martin Loughlin,Foundations of Public Law, Oxford: Oxford University Press,
2010, 528 pp, hb £65.00.
Is public law ordinary?That is, is the law that serves as the foundation of the state
and its laws part of ordinary law and ordinary legal discourse? Or, is public law
extraordinary? Is public law, precisely because it is the foundation of the state and
its laws, a law that exists within a sphere separate from ordinary law? There may
be some intuitive appeal to the claim that public law cannot set ordinary law in
motion and constitute part of that law at the same time. But if public law,
understood in this sense, is extraordinary, is it really law at all? Perhaps it is just a
form of political morality or a social fact–aprinciple of statecraft or a custom
followed by officials.Of cour se,it might still be thought that these foundational
norms or facts must have some legal aspect, at least from the perspective of those
people who accept their authority. But, if so, how extraordinary can that legal
aspect really be? Can the fundamental law of the state be wholly excluded from
ordinary law? Can ordinary legal discourse be stopped at the border of public
law? Are we not back at the proposition that public law, if it really is law, must
count, in some way at least, as ordinary?
Jurists within the common law tradition have long assumed that their
answers to these questions are different from those given by the civilian jurists
of continental Europe.When told that certain French decrees imposing a mari-
time blockade against Britain were based on ‘fundamental laws’, the renowned
judge of the High Court of Admiralty, Sir William Scott, observed that this
expression could not be defined with precision, though he acknowledged that
by ‘writers on public law, Grotius, Pufendorf, and others’, fundamental laws
were usually taken to mean laws ‘so deeply interwoven in th e political con-
stitution of the state’ as to be‘above the power of legislation’ – a possibility that
Scott said ‘could not well be intended here’.1For Scott, as for many English
lawyers and judges before and after him, the expressions ‘public law’,‘the politi-
cal constitution’, and ‘the state’, taken together, evoked a distinctively conti-
nental style of jurisprudence.
*Faculty of Law, Queen’s University.
1The ‘Snipe’ (1812) Edwards 381, 385.
© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(5) MLR 894–913
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
As a civilian, Scott would have been familiar with the continental ‘writers on
public law’ to whom he referred.2Yet his comments suggest that he shared the
common lawyer’s antipathy toward the idea that executive decrees might be
authorised by a ‘public law’ or ‘political constitution of the state’ that lay beyond
the range of ordinary legislative and judicial processes.That antipathy is evident
in the classic statements of British constitutionalism. It is evident,for example, in
the curt response given by Lord Camden in Entick vCarrington to the argument
that there is a separate ‘law of state’ immunising governmental actors from
ordinary legal challenge: ‘the common law’, he said, ‘does not understand that
kind of reasoning’.3It is evident too in A.V. Dicey’s assertion, made in Law of the
Constitution, that in Britain ‘the constitution is the result of the ordinary law of
the land’.4Indeed, in the course of writing that book, Dicey acknowledged
privately that he had been struck by ‘the essential difference’ between continen-
tal and English approaches to the constitution, observing that in France ‘they
seem to me to start from the notion of the state’ whereas in England ‘we start
from the rights of the individual & hardly recognise the state or Crown as having
rights of its own.5This is not to say that common lawyers have ignored the
political dimensions of constitutionalism. Dicey pointed to the way that con-
ventions shape law’s practical meaning and how the legal sovereign, Parliament,
is ultimately controlled by the political sovereign, the people.But he also insisted
that constitutional conventions are‘not in reality laws’ and the sovereignty of the
people is ‘a political, not a legal fact’.6Within the common law tradition, then,
the idea of the state is not privileged, and the foundations of political order are
thought to fall within the realm of ordinary law or outside the realm of law
altogether.There is no middle legal ground between ordinary law and politics,
no extraordinary legal domain where a special public law of state might
be found.
Martin Loughlin has long argued that this common law understanding of
public law is wrong.In his 2003 book, The Idea of Public Law, Loughlin sketched
what he called the ‘pure theory of public law’, according to which public law is
understood to be ‘an autonomous subject operating in accordance with its own
distinctive method.7In his recent book, Foundations of Public Law, Loughlin
locates the pure theory of public law within its historical intellectual context.The
result is a restatement of the continental public law tradition on a grand scale.For
English jurists like Scott the ‘writers on public law, Grotius, Puffendorff, and
others’ were foreigners to be kept at a respectful distance; for Loughlin, however,
they are more like cousins to be embraced after a long period of separation.From
the works of Bodin, Spinoza, Rousseau, Lipsius, Fichte, Hegel and others –
Grotius and Pufendorf included – Loughlin reconstructs an account of public law
2 See in general H. J. Bourguignon,Sir William Scott,Lord Stowell: Judge of the High Court of Admiralty,
1798–1828 (Cambridge: CUP, 1987) 37–38.
3Entick vCarrington (1765) 19 St Tr 1029, 1073.
4 A.V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 8th ed, 1915)
5 Quoted in M. D. Walters, ‘Dicey on Writing the Law of the Constitution’ (2012) 32 OJLS 21,29.
6 Dicey, n 4 above,199, 23, 71.
7 M. Loughlin, The Idea of Public Law (Oxford: OUP, 2003) 153.
Mark D. Walters
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 895
(2012) 75(5) MLR 894–913

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