Questioning the foundations of public law / edited by Michael A Wilkinson and Michael W Dowdle

In 2010, Martin Loughlin, Professor of Public Law at the LSE, published Foundations of Public Law, `an account of the foundation of the discipline of public law with a view to identifying its essential character'. The book has become a landmark in the field, and it has been said, notably by one of its major critics, that it now provides the `starting point' for any deeper inquiry into the subject. The purpose of this volume is to engage critically with Foundations - conceptually, comparatively and historically - from the viewpoints of public law, private law, political, social and legal theory, as well as jurisdictional perspectives including the UK, US, India, and Continental Europe. Scholars also consider the legacy and continuing relevance of Foundations in the light of developments in transnational law, global law and regional integration in the European Union. Acknowledgements Table of Contents Contributors Part I: Introducing the Foundations of Public Law 1. Questioning the Foundations of Public Law and Questioning Foundations of Public law I. Introduction II. Law and Politics III. The Evolution of the Modern State IV. Continuity and Critique 2. Political Jurisprudence I. Introduction II. Schools of Jurisprudence III. The Nature of the Inquiry IV. The Political Domain V. The State VI. Power and Authority VII. Constitution VIII. The Logic of Political Jurisprudence IX. Conclusion Part II: The Methodological Critique 3. Questioning a Uniform Concept of Public Law I. Introduction II. A Preliminary Digression on Goldsmith and Levinson III. The Autonomy of Public Law IV. Relating a Science of Political Right to Public Law V. The Grammar of Public Law VI. Why the Juristic Turn? 4. The Tragic Politics of Public Law I. Introduction II. 'The Whirlwind of Rights' III. The Polemical Intervention IV. Tragic Metapolitics 5. Immanence and Irreconcilability: On the Character of Public Law as Political Jurisprudence I. Introduction II. Taking Religion Seriously: Political Jurisprudence as Secular III. Autonomy and Ambivalence IV. Taking Legalism Seriously: Political Jurisprudence as Law V. Taking Exteriority Seriously: Public Law as Immanent? VI. Ritual and 'In-between' Spaces VII. Conclusion Part III: The Normative Critique 6. Concrete Order Formation or Rational Will Formation? Constituent Power as the Ratio of Voluntas I. The Dialectic of Potestas and Potentia II. Nomos and the Genealogy of Political Power III. The Social Origin of Political Power IV. Secularisation, Sovereignty and Rationality V. Constituent Power, Ratio and Voluntas VI. The Radical Democratic Reading of Constituent Power 7. Private Law, Potentia and the Ethical: On What Justification Does the State Coercively Tax its Subjects in Order to Build Bridges, Fund the BBC, and Subsidise Charities? I. Introduction II. Loughlin on Societas, Universitas, Potestas and Potentia III. Kant on Private Right and the Foundations of the State IV. Raz on the Rights of Citizens and the Justification of the State V. Potestas and Potentia, and the Moral and the Ethical VI. Justifying Potentia and the Ethical in Politics VII. Conclusion 8. A Conventional Narrative: The Rhetorical Shape of Foundations of Public Law I. Introduction: A Conventional Narrative II. The Early Modern Discovery of the Idea of the State III. The Liberal Idea of the State IV. The Twentieth Century State—The Narrative of 'the Triumph of the Social' and the Displacement of Political Right by Regulatory Power V. Conclusion 9. Foundations of Public Law and Postnational Constitutionalism I. Introduction II. What Would Count as Evidence of an Underlying Shift? III. On Whom Lies the Burden to Imagine and Chart the Future? Part IV: The Material Critique 10. Putting Public Law in its Place: State-Theoretical Comments on Foundations of Public Law I. Introduction II. Seven Approaches to the Analysis of the State III. Conceptual History and its Limitations IV. Beyond Allgemeine Staatslehre V. Public Law, the Multi-Dimensionality of the State and Substantive Crisis Mechanisms VI. Concluding Comments and Direct Questions 11. The Materiality of Political Jurisprudence I. Introduction II. Methodology: The Prudential Rationality of Political Jurisprudence III. Trajectory: From a Functional to a Reflexive Political Jurisprudence IV. Object: Right Ordering and its Grammar V. Subjectivity: The Material Constitution 12. Public Law and the Autonomy of the Political: A Material Critique I. Introduction II. What Grounds the Autonomy of the Political? III. The Relation between the Political and the Economic in the Material Ordering of the Nomos IV. The Interwar Breakdown of Public Law: A Crisis of the State V. The Post-War Constitutional Imagination: A Transformation of the State VI. Conclusion Part V: The Comparative Critique 13. Foundations of Public Law: A View from the United States I. Introduction II. US Constitutionalism: No Itch to Scratch? III. The UK's Position in a Changing World 14. The Elusive Quest for Community: The Making of Political Identity in Modern Indian Constitutionalism I. Introduction II. The Authority of Community in Public Law III. Constitutionalism as the Search for Community in Colonial and Post-Colonial India IV. Adjudicating Minority Rights in the Indian Constitution V. Locating Loughlin against Gandhi's Rejection of the Nation VI. Searching for the 'Foundations' of Indian Constitutionalism 15. Uncovering the Foundations of Administrative Law? I. Introduction II. Public Law as (Essentially) 'Sporadic and Peripheral' III. In Search of a Foundation IV. Conclusion: Towards a Loughlinian Framework for Contemporary Public Law? Part VI: The Response 16. Excavating Foundations I. Introduction II. Approaches to Public Law III. Method and Objective of Foundations IV. State Theory V. State and Power in Analytical Jurisprudence VI. The Secularisation Thesis VII. How is Public Law Law? VIII. Is Foundations Conservative? IX. The Material Critique X. The Civic Republican Critique XI. The Rise of the Social XII. The Post-National Critique XIII. The Post-Colonial Critique XIV. American Exceptionalism XV. Conclusions Bibliography Index Questioning the foundations of public law and questioning foundations of public law / Michael A. Wilkinson and Michael W. Dowdle -- Political jurisprudence / Martin Loughlin -- Questioning a uniform concept of public law / Andrew Halpin -- The tragic politics of public law / Panu Minkkinen -- Immanence and irreconcilability : on the character of public law as political jurisprudence / Jacco Bomhoff -- Concrete order formation or rational will formation? : constituent power as the ratio of voluntas / Hauke Brunkhorst -- Private law, potentia, and the ethical : on what justification does the state coercively tax its subjects in order to build bridges, fund the BBC, and subsidise charities? / James E Penner -- A conventional narrative : the rhetorical shape of foundations of public law / Anna Yeatman -- Foundations of public law and postnational constitutionalism / Neil Walker -- Putting public law in its place : state-theoretical comments on foundations of public law / Bob Jessop -- The materiality of political jurisprudence / Marco Goldoni -- Public law and the autonomy of the political : a material critique / Michael A Wilkinson -- Foundations of public law : a view from the United States / Mark Tushnet -- The elusive quest for community : the making of political identity in modern Indian constitutionalism / Mathew John -- Uncovering the foundations of administrative law? / Denis Baranger -- Excavating foundations / Martin Loughlin In 2010, Martin Loughlin, Professor of Public Law at the LSE, published Foundations of Public Law, “an account of the foundation of the discipline of public law with a view to identifying its essential character”. The book has become a landmark in the field, and it has been said, notably by one its major critics, that it now provides the ‘starting point’ for any deeper inquiry into the subject. The purpose of this volume is critically to engage with Foundations—conceptually, comparatively and historically—from the viewpoints of public law, private law, political, social and legal theory, as well as jurisdictional perspectives including the UK, the US, India, and Continental Europe. Scholars also consider the legacy and continuing relevance of Foundations in the light of developments in transnational law, global law and regional integration in the European Union.