Vol. 14 No. 6 (June 2004), pp.458-464

THE IDEA OF PUBLIC LAW, by Martin Loughlin.  Oxford: Oxford University Press, 2003.  199pp. Paperback. $29.95 / £15.99.  ISBN: 0-19-927472-X. Cloth $72 / £40.  ISBN: 0-19-926723-5. 

Reviewed by Ethan J. Leib, Department of Political Science, Yale University.  Email: ethanleib@juno.com  

Martin Loughlin’s THE IDEA OF PUBLIC LAW is disorienting – and not always in the ways Loughlin intends.  While the book offers fresh insights into some of the most basic building blocks of politics, and although it successfully explores the importance of politics in understanding law, neither Loughlin’s intended audience nor his main theses are immediately ascertainable.  The treatise announces its intention to be an investigation of public law, and to show that public law is an “autonomous” discipline.  But by the conclusion, the reader is left wondering why Loughlin’s argument is distinctive to public law (and how the public law and private law can be disentangled, if at all), and from what the public law is autonomous.  Ultimately, what is most disorienting about this work by a lawyer is that it provides no clear lesson about the law’s reform, rendering the book too inert to satisfy the lawyers or political scientists interested in gleaning practical ramifications from their readings in theory.  Loughlin has built a reputation in Britain for his interest in left-wing legal reform; one is hard-pressed to see how this book is a product of that orientation.  

First, to orient the reader, Loughlin seeks to explain why his subject matter is so urgent.  He alleges that legal positivism – the predominant school of legal philosophy in the academy – obscures the public law.  While Loughlin is correct that legal positivism exerts the most influence over Anglo-American jurisprudence, it is also true that it is regularly on the defensive: all syllabi in jurisprudence courses include study of the Herbert Hart/Ronald Dworkin debate, a debate that was the product of Dworkin’s influential critiques of positivism.  Loughlin contends that positivism, in its quest for a science of law, separates law from politics, the legal from the political – and that public law’s full nuance necessarily suffers, dependent as it must be on politics.  For Loughlin, the task of public law is to constitute, maintain, and regulate governmental authority – and this domain is more or less assumed away, he argues, by positivism’s general refusal to problematize the very authority that provides the source of a norm’s legal validity.  Thus, to the extent that positivists think that they are answering the most primary question about what law is, Loughlin suggests that they ignore that their answer, something posited by a sovereign, necessitates what turns out to be a more primary inquiry into the constitution of the sovereign through politics.  Positivism can account for public law’s regulatory aspects because those aspects recognizably have a source in the sovereign; but what constitutes the public law more generally remains untouched by positivism.  [*459] 

One problem with this seemingly auspicious beginning is that legal positivism, stripped to its bare essentials, is only the view that a norm’s legal validity depends on its sources rather than its merits.  There is little beyond that commitment that one can impute to the positivists.  And even granting the positivists’ proposition as true, there appears to be plenty of room for Loughlin’s inquiry.  Even if legal validity is determined by looking only at a norm’s sources rather than its merits, it does not follow that how that authority is constituted – even if through politics – is an improper inquiry.  The issue of whether the positivist is engaged in a form of “first legal philosophy” is purely subsidiary; establishing the primacy of their inquiry is not the positivists’ central concern.  Instead, they are satisfied if their generalized account of the concept of law is fully applicable across legal systems, quite independent from the particularized account of how authority is constituted in any given regime.  So there is no necessary conflict between positivism and Loughlin's agenda.

As an empirical matter, however, Loughlin’s indictment rings a bit truer (though it remains a somewhat caricatured picture): positivists aren’t terribly interested in politics and political theory.  And to the extent that positivists account for the vast majority of legal philosophers, their interests influence the range of what gets talked about.  Thus, although Loughlin’s implicit philosophical critique of positivism is somewhat forced, the empirical conditions that lead him to feel the urgency of his project makes a bit more sense.  Nevertheless, Joseph Raz, England’s most famous legal positivist (who – bizarrely – receives not a single mention in Loughlin’s book), has surely put the constitution of sovereignty and political and moral theory on the agenda for legal philosophers.  In any case, the field of legal philosophy can always use more intellectual diversity: the Hart/Dworkin debate and the more recent (and somewhat more boring even if more philosophically sophisticated) Hart/Raz debate between the so-called soft and hard positivists take up most of legal philosophers’ time.  New perspectives and frameworks must be welcomed to keep the field fresh.   

In the chapters that follow, when Loughlin elaborates upon the juristic significance of the foundational concepts of public law, he uncovers some very surprising and intentionally disorienting insights for legal theory – especially when one considers that these are articulated by someone who identifies with the left.  In the book’s discussions of governing, politics, representation, sovereignty, constituent power, rights, and method (each of which gets its own chapter), the reader is rewarded with provocations, many of which have their genesis in the work of thinkers associated with the right: Machiavelli, Hobbes, Bodin, Schmitt, and Oakeshott.  To be sure, Foucault and Hart & Negri are mixed in for good measure, helping leftists feel at home.  And by now left-wing Schmittism is a recognizable position, though it is always a difficult pill to swallow to expose the pathologies of liberalism. 

In the chapter on governing, Loughlin isolates public law’s principal object as the task of governing, an activity that comes into existence when any group of people come together in associations.  But the element of governing that [*460] Loughlin highlights, in this chapter and throughout the book, is the unbridgeable gap between the ruler and the ruled.  This fundamental relation – a form of inequality, to be sure – is located at the very center of public law’s task.  Although many lawyers hope that the public law can be used to achieve greater equality and/or liberty, Loughlin reveals the core of the public law to reinforce an unequal relation.  Not that he ultimately abandons a more charitable rendering of the practice of governing; he merely focuses our attention on the way in which governing must create an awkwardness between the ruler and the ruled, and notes that this must have juristic significance (essentially meaning that it has some cash value for understanding what law is).   

This first substantive chapter offers an interesting picture of governing, with much stimulating intellectual history of the state and rulership to recommend it.  Yet it would have been useful to begin with even more preliminary inquiries: Just what forms of public law does the author seek to explore?  Is he looking to draw an account of constitutional law?  Administrative law?  Criminal law?  Torts?  Defining the boundaries of the explanandum might have been a better opening than an abstract orientation (or disorientation, as the case may be) to the public law’s main object.  Moreover, by the end of a first chapter, one hopes – in this case, in vain – to be clear about the author’s intended audience: here, it is hard to tell if Loughlin wants the ears of lawyers, political theorists, or philosophers, and who might profit most from this investigation.  Even more disorienting is trying to figure out if this is a book for an English audience – or whether he seeks to describe a general theory of state, politics, and law, relevant to a more cosmopolitan scene.  One assumes the latter, but hints in the first chapter suggest that the book is targeted to explore British public law in particular, with its own version of constitutional monarchism.  Indeed, the book begins by noting that the public law is ignored in England; it would be quite strange to make such a claim about the United States.  (If anything, it is probably the private law that doesn’t get its due in the United States.)  Nevertheless, the first chapter quickly and clearly signals to the reader that the book is centrally a work of abstract theory that emphasizes political theory’s use for legal theory; it is a book at least as much about politics as it is about the law.   

It is thus substantially less disorienting that the following chapter is about politics itself.  And it is a romantic conception of politics indeed.  Loughlin adopts Schmitt’s notorious concept of the political, in which some primordial and existential contest with an enemy conceptually precedes the organization of the state and its public law.  Unlike Schmitt, however, Loughlin wants to use the existential contestation endemic to the political to illuminate the relationship between citizens within political systems, not to illuminate the field of international relations or to justify the ethnic or national character of a particular state.  This unorthodox rendering of Schmitt drives much of what follows: the state becomes theorized as a work of art, whose central function is navigating that internal conflict.  This conflict-navigation is also indirectly the work of public law, whose task becomes the maintenance of the autonomy of politics from morality and [*461] first philosophy, so that it can do its work most effectively.  

Public law is thus conceived as a means to keep politics autonomous.  Machiavelli is Loughlin’s source of this “agonal” conception of politics, a conception that Schmitt could not embrace in his quest for a broad consensus based on a political theology.  Loughlin does not think politics does or should seek the elimination of conflict, only its management; this helps to explain why politics cannot embrace a unifying morality that could put an end to conflict.  The primacy of politics in the constitution of public law renders any text or statute in public law vulnerable to the needs of politics and the bending of rules that Machiavelli made famous in his own prizing of the virtue of prudence.  If there is a lesson for the concept of law here, Loughlin urges the proposition that the law is not transcendent in any way.  He is clear that he thinks any “moral reading” of constitutional law must be abandoned because such readings suppress politics.  He blames Dworkin for taking the public law in this direction, displacing politics at least as much as positivism does.  (But one has to wonder if politics itself displaces the public law’s “autonomy” in Loughlin’s picture.) 

The next chapter is about a fundamental aspect of modern politics and, in turn, of the public law:  representation.  Every political system uses a representative mechanism, whether it be a sole executive, or some body used as a synecdoche for “the people.”  Loughlin insists that actual “government by the people” is an incoherent notion; representation is a generative act, one that makes it possible and legitimate to exercise political power.  Relying heavily upon the work of Frank Ankersmit, Loughlin rejects any theory of popular sovereignty, insisting that representation is a superior form of government.  Citing no less an authority than the FEDERALIST, he argues that representation manages conflict better than any form of direct democracy: “only through representation can conflict be positively harnessed, appropriate governing arrangements devised, and real political will established” (p. 64).  Though Loughlin does not make clear whether this claim is conceptual or empirical, either way it is as doubtful as it is provocative.  It suffices to note that a popular component to governing is not hard to imagine or spot in the real world; institutional imagination can make popular sovereignty even more a reality than it already is.  It is a hard sell to claim that direct democracy “dishonours democracy” (p. 70), and it is exciting to watch such a claim be defended from the left.  While it is easy to see that the first act of representation is generative, it is much harder to understand why that first act cannot delegate or devolve some actual, irreplaceable power to “the people.”   

Not that “the people” have no role in Loughlin’s political theory – his chapter on constituent power places “the people” at the center of the modern state, admitting that “denying juristic significance to the concept of constituent power is tantamount to rejecting the idea of public law” (p. 99).  In the final analysis, “constituent power is the juristic expression of the democratic impetus.  The concept expresses the tensions between democracy and law” (p. 100), because the source of modern political authority clearly must invoke [*462] “the people,” incoherent though they may be without representatives.  Even though he is sure that “the people” were meant only to be the foundation upon which authority propped itself, he concedes that they have “insinuated themselves” into the “founding myth” of political society (p. 100) – and are now there to stay.  Indeed, citing Machiavelli, Loughlin acknowledges that rulers must pay heed to the ruled because the ruled grasp the truth, even if they are ignorant.   

But there is a deeper constitutional point about modern political life that Loughlin traces: since the French and American Revolutions, the highest law – constitutional law – is routinely announced in the name of “the people.”  And Loughlin argues that constitutional adjudication – at least in America – ought not be seen as “an argument over the meaning of positive law, but an argument about the true character of American political identity” (p. 108).  Because Loughlin believes that there is no “the people” without a constitution (p. 109), each provision thereof is existential and generates the very “people” it constitutes.  “Constituent power is the power that gives constitutions their open, provisional, and dynamic qualities, keeping them responsive to social change” (p. 113); but change is ultimately achieved through politics, not through the transcendence of constitutional law.  Nevertheless, his final view about modern government is that it is “aristocratic” (p. 83); it is hard to know whether this really troubles Loughlin or what we might do about it if we wanted to change it. 

There are still other provocative discussions of the basic components of the public law in this dense volume; and they are worth mentioning.  Loughlin’s chapter on sovereignty focuses on sovereignty as a relation and as a political discourse with juristic significance.  Most treatments of the subject render sovereignty as a formal concept and an empirical phenomenon that needs explanation; Loughlin’s treatment explores how sovereignty inheres in the relationship between ruler and ruled (p. 83), the subject of the first chapter.  This allows him to skirt the raging debate about the declining viability of the sovereignty of the nation-state in the face of globalization.  Although he notes in passing that he remains skeptical that the EU (p. 66) or “Empire” (p. 98) is eroding sovereignty in any sense, such debates are central enough to the literature on sovereignty that avoiding a direct confrontation through redefining the concept seems a bit evasive.  Nevertheless, his vision of sovereignty as relational is provocative.  Later in the chapter, he draws from Bodin, sketching sovereignty as indivisible.  He adheres to the mantra, sovereignty divided is sovereignty destroyed; all divisions of sovereignty must actually be an explication thereof (p. 84).  

His discussion of rights similarly declines to view moments of seeming governmental weakness for what they are, proof that the law’s power is unstable.  Instead, Loughlin theorizes each right against the government as itself a mere explication of government’s power.  There is nothing pernicious here though, only a shift of perspective; yet it is one that might render alien the conviction of many that core “rights” are inalienable.  Loughlin is not the first on the left to admit boldly that rights must [*463] be “rhetorical” (p. 87) – Richard Rorty has done so before – but it is always an especially complicated commitment when it comes from the left.  What it accomplishes for the concept of public law, however, is less complicated: the commitment means that rights must be seen as political claims to be settled through political contestation.  Loughlin acknowledges that characterizing rights this way becomes substantially more complex once rights are positivized and codified in the law, as they so regularly are – bills of rights, whether in the domain of constitutional law, health law, welfare law, or labor law, are proliferating.  And once they lose their political character as right and become positive law, the architecture of public law undergoes a transformation.  Loughlin is not explicit about just what this transformation means for the public law; at least he issues a clear concession that the rights revolution – and its efforts to codify rights and remove them from the political realm – is well underway. 

Loughlin’s book is ultimately hard to summarize.  Even with the help of the propositional summary offered at the end (something Oxford University Press has done before with hard-to-summarize treatises in its Oxford Political Theory Series), the book is difficult to distill; it is full of stimulating discussions, but it does not wind up with any clear message about what it set out to do.  To be sure, it may only be fair to judge a book on the basis of the project it sets out for itself (though if we were allowed to judge a book by its cover, this one would fare well; it is a very handsome volume, even if $74 or £40 seems steep for 163 pages of difficult text).  But even by its own standards and by standards applicable to all books (readability, coherence, persuasiveness, and so on), this book leaves something to be desired.     

First, it does not really feel like a book with a unified project.  Each chapter reads as a self-contained whole.  This speaks well for the chapters themselves, but renders the whole less like a book and more like an anthology.  Trying to read the book in its entirety is, in any case, a challenge despite its short length.  It is written in a rather inaccessible style, even for those accustomed to academic prose.  It is worth some effort, but is probably best digested in small chunks. 

Second, the punch line – that public law is part of political practice – is hardly a novel conclusion; nor does it obviously follow from all that comes before.  More important, the book’s core thesis that gets repeated over and over throughout (as a chorus of sorts) – that the public law is autonomous – remains underdeveloped.  Just what the public law is supposed to be autonomous from is never made absolutely plain.  If it is the private law, Loughlin does not give us an argument.  If it is the private sphere, the thesis is essentially axiomatic.  If it is morality – as seems to be the best candidate, based upon his exhortation to prudence at the conclusion of the book – he has failed to make a consistent case.  He argues that rights discourse cannot help but draw upon ethical considerations – and since he agrees that the positivization of rights must incorporate those ethics, law get adulterated by morality inevitably (p. 127).  He may ultimately criticize the rights revolution for entrenching morality within law, but there it is.  Finally, the punch line undermines the core thesis in an obvious way: if public law is part of political practice, and so [*464] much of public law relies upon politics and politics’ core components, it is hard to call public law “autonomous.”  Public law is just politics – and that does not sound like something “autonomous” after all.   

Another point.  The public law is regularly contrasted with the private law.  But Loughlin never addresses how he understands the difference between them even though it can be inferred that he does think them somehow different.  Most frank characterizations of the private law (contract law, commercial law, property law, and the like) cannot easily be purified from public law considerations: commitments in public law, in politics, must bleed into a society’s scheme of enforcing contracts and granting entitlements to property.  There is a reason few scholars take the public law/private law distinction very seriously these days – and Loughlin fails to argue that they should.  This may be because people take the formal difference between the public law and the private law more seriously in England; but it is at least passing odd that the private law barely gets mentioned or distinguished in the book. 

Perhaps most difficult to swallow about this book – after putting to one side the seemingly antidemocratic leanings and the “liberal” use of authoritarian and Nazi thinkers – is that it leaves the reader with no programmatic or reformist approach to the public law.  It does not offer to help anyone decide constitutional cases; it does not provide clear clues about how to run the administrative state; it does not furnish any instruction about how to design the emerging democracies, save perhaps the recommendation that all forms of direct democracy be abolished.  Admittedly, this is a hard critique to launch against a book of theory that has no pretensions to practicality.  But lawyers are the sort of academics, I think, from whom we can demand a short “what-is-practically-at-stake” statement in all their work.  Political scientists and philosophers can, perhaps, get away with a modicum of irrelevance to the real world (though most political scientists – even the theorists – make an effort to touch base with the real world).  And if importing political theory into the study of public law renders the discipline of public law less capable of offering lessons for reform of the actual public law, I cannot help but be disappointed in the project.  The scholar and academic will find much that is stimulating in Loughlin’s book; figuring out what he is trying to say is half the fun, and there are pearls in each chapter.  But the lawyers and political scientists who read books about the public law in order to help them use it in the service of the public good will no doubt be frustrated by this one.

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Copyright 2004 by the author, Ethan J. Leib.