Foundations of public law / Martin Loughlin.
2010
K3150 .L677 2010 (Map It)
On loan from , due 16. May 2025
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Details
Author
Title
Foundations of public law / Martin Loughlin.
Published
New York : Oxford University Press, 2010.
Call Number
K3150 .L677 2010
ISBN
9780199256853 (hardback)
0199256853 (hardback)
0199256853 (hardback)
Description
xii, 515 pages ; 24 cm
System Control No.
(OCoLC)610466946
Summary
"Foundations of Public Law offers a distinctive, provocative theory of public law, building on the views first outlined in The Idea of Public Law (OUP, 2003). The theory aims to identify the essential character of public law, explain its particular modes of operation, and specify its unique task. Public law is conceived 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 16th-19th centuries, he reveals a concept of public law of considerable ambiguity, complexity and resilience"--Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 467-510) and index.
Record Appears in
Table of Contents
Introduction: Rediscovering Public Law
1
I.
ORIGINS
1.
Medieval Origins
17
I.
Theological-Political Question
18
II.
Papal Monarchy
19
III.
Empire and Papacy
22
IV.
Theocratic Kingship
25
V.
Regnum and Sacerdotium
28
VI.
Conciliarism
32
VII.
Secularization of Government
37
VIII.
Medieval and Modern Constitutionalism
46
2.
Birth of Public Law
50
I.
Methodological Turn
51
II.
Bodin's Method
56
III.
Absolutism
62
IV.
Constitution of Sovereignty
69
V.
Modern Natural Law: Subjective Right, Security, and Sociability
73
VI.
Transition Paradoxes
83
II.
FORMATION
3.
Architecture of Public Law
91
I.
Right Ordering
91
II.
Early-Modern Formation
94
III.
Architectural Metaphor
98
IV.
Architecture of Power
102
V.
Constitutional Architecture
106
4.
Science of Political Right: I
108
I.
Political Right
108
II.
Rousseau's Science of Political Right
112
III.
Sovereignty and Government in The Social Contract
117
IV.
Modernity and German Idealism: Kant's Rechtslehre
120
V.
Formal Science of Political Right
127
5.
Science of Political Right: II
132
I.
Rousseau's Pessimism
132
II.
Political Pact in Historical Practice
134
III.
Rousseau's Sociology of Political Right
137
IV.
Fichte's Foundations of Natural Right
140
V.
Concept of Political Right in Hegel's Rechtsphilosophie
146
VI.
Struggle for Recognition
153
6.
Political Jurisprudence
157
I.
Public Law as Political Jurisprudence
158
II.
Power
164
III.
Liberty
171
IV.
Grammar of Public Law
178
III.
STATE
7.
Concept of the State
183
I.
Sovereignty: A Conceptual Sketch
184
II.
Status, Estate, State
186
III.
Staatslehre
190
IV.
Community, Society, State
196
V.
State as a Scheme of Intelligibility
205
8.
Constitution of the State
209
I.
Concept of the Constitution
209
II.
Normative Power of the Factual
216
III.
Constituent Power
221
IV.
Public Sphere
228
V.
Droit Politique as the Constitution of the State
231
9.
State Formation
238
I.
European State-building Practices
239
II.
Formation of the English Parliament
243
III.
Parliament and the Formation of the Modern State
250
IV.
Struggle for Responsible Government
255
V.
Formation of the Parliamentary State
259
VI.
Representative and Responsible Government
262
VII.
State, Law, and Constitution
268
IV.
CONSTITUTION
10.
Constitutional Contract
275
I.
Modern Constitutions
276
II.
Constitutions as Contract
278
III.
Revolution and Constitution
282
IV.
Constitution as Fundamental Law
288
V.
Constitutional Maintenance
297
VI.
Constitutional Patriotism
305
VII.
Reflexive Constitutionalism
310
11.
Rechtsstaat, Rule of Law, l'Etat de droit
312
I.
Ambiguous Character of the Rule of Law
312
II.
Origins
314
III.
Mode of Association
324
IV.
Rule of Law as Liberal Aspiration
332
V.
Rechtsstaat or Staatsrecht?
337
12.
Constitutional Rights
342
I.
Natural Rights, Civil Rights, Constitutional Rights
343
II.
Civil Society
346
III.
Bills of Rights
350
IV.
Constitutional Adjudication
356
V.
Subjective Rights and Objective Law
367
V.
GOVERNMENT
13.
Prerogatives of Government
375
I.
Prerogative Power
376
II.
Locke on the Prerogative
383
III.
Executive within Modern Republican Government
387
IV.
Government Growth, Executive Power, and Modern Constitutions
391
V.
Prerogative Transformed
396
VI.
Prerogative Sublated
402
14.
Potentia
407
I.
Disciplinary Revolution
408
II.
Cameralism
417
III.
Police Power
422
IV.
Justice and Police
429
V.
Growth of Administrative Power
432
15.
New Architecture of Public Law
435
I.
Emergence of Administrative Law
435
II.
English Quarrel with Administrative Law
440
III.
Administrative Government and the Separation of Powers
445
IV.
Rise of the Ephorate
448
V.
New Separation of Powers
452
VI.
Transformation of Public Law
456
VII.
Triumph of the Social?
461
Bibliography
467
Index
511