Defending the Domain of Public Law

Research output: Chapter in Book/Report/Conference proceedingChapter (peer-reviewed)peer-review

Abstract

This chapter explores common understandings of the nature of the public and the private, and its relationship to law through the public/private divide. It departs from a commonplace that the public/private divide is a relative and flexible phenomenon, which does not reveal any ‘truth’ about the world, challenging three common assumptions about the public/private divide in the law. These assumptions are that there is or should be no cross-fertilization between the meaning of the public in the various instances of the divide scattered across legal systems; that its expression in the law is necessarily political or ideological; and that the divide can be dispensed with when it hinders the achievement of particular goals such as the effective protection of human rights. Focusing on one expression of the public/private divide in the law — s. 6 of the UK's Human Rights Act 1998 — it is argued that the practice of adjudication of the divide in the law reveals a deeper-rooted sense of the public and the private, which permeates the legal system which is more stable than the commonplace of its radical relativity suggests. In the light of this more structural understanding of the public, there is necessarily a measure of cross-fertilization between particular instances of the divide in a legal system, that it is less political or ideological than is claimed, and that its elimination can be extremely problematic, particularly for the achievement of effective human rights protection. The chapter concludes by characterizing this deeper structure of the public/private divide in terms of a ‘legal archetype’, and identifies the role of positive law in relation to this archetype as a parergon.
Original languageEnglish
Title of host publicationAfter Public Law
EditorsCormac Mac Amhlaigh, Claudio Michelon, Neil Walker
PublisherOxford University Press
Pages103-29
ISBN (Print)9780199669318
DOIs
Publication statusPublished - 2013

Publication series

NameOxford Constitutional Theory
PublisherOUP

Keywords

  • public/private divide
  • adjudication
  • domain of public law
  • human rights law
  • human rights act
  • horizontal effect

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