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, 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.
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