Foundations of Public Law

Author: Martin Loughlin
Publisher: Oxford University Press
ISBN: 9780199256853
Published In: June 2010
Format: Hardback , 528 pages
Jurisdiction: U.K. ? Disclaimer:
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Offers the long-awaited statement of a distinctive approach to public law integrating history, philosophy, and political theory
Presents provocative arguments against central orthodoxies in current public law theory, such as the role of public law in limiting government power
Draws on the rich constitutional theory found in French and German literature, providing a European perspective

Foundations of Public Law

offers an account of the formation of the discipline of public law with a view to identifying its essential character, explaining its particular modes of operation, and specifying its unique task. Building on the framework first outlined in

The Idea of Public Law

(OUP, 2003), the book conceives public law broadly as a type of law that comes into existence as a consequence of the secularization, rationalization and positivization of the medieval idea of fundamental law. Formed as a result of the changes that give birth to the modern state, public law establishes the authority and legitimacy of modern governmental ordering.

Public law today is a universal phenomenon, but its origins are European. Part I of the book examines the conditions of its formation, showing how much the concept borrowed from the refined debates of medieval jurists. Part II then examines the nature of public law. Drawing on a line of juristic inquiry that developed from the late sixteenth to the early nineteenth centuries-extending from Bodin, Althusius, Lipsius, Grotius, Hobbes, Spinoza, Locke and Pufendorf to the later works of Montesquieu, Rousseau, Kant, Fichte, Smith and Hegel-it presents an account of public law as a special type of political reason.

The remaining three Parts unpack the core elements of this concept: state, constitution, and government. By taking this broad approach to the subject, Professor Loughlin shows how, rather than being viewed as a limitation on power, law is better conceived as a means by which public power is generated. And by explaining the way that these core elements of state, constitution, and government were shaped respectively by the technological, bourgeois, and disciplinary revolutions of the sixteenth century through to the nineteenth century, he reveals a concept of public law of considerable ambiguity, complexity and resilience.

Readership: Advanced students and academics in public law and political theory. Barristers and judges specializing in public law.

Introduction: Rediscovering Public Law
Part I: Origins
1: Medieval Origins
2: The Birth of Public Law
Part II: Formation
3: The Architecture of Public Law
4: The Science of Political Right: I
5: The Science of Political Right: II
6: Political Jurisprudence
Part III: State
7: The Concept of the State
8: The Constitution of the State
9: State Formation
Part IV: Constitution
10: The Constitutional Contract
11: Rechtsstaat, Rule of Law, L'Etat de droit
12: Constitutional Rights
Part V: Government
13: The Prerogatives of Government
14: Potentia
15: The New Architecture of Public Law

Martin Loughlin, Professor of Public Law, London School of Economics and Political Science

"Martin Loughlin puts forward a convincing case for having a broader humanist understanding of public law" - James Grant, Times Literary Supplement

"...a very important and ambitious book...I am of the view that this is a book that can be recommended without reservation, and I think that it rewards intense interrogation and re-consideration. The argument about the function of public law in producing political power is quite outstanding" - Chris Thornhill, Public Law