The boundaries of public law
The boundaries of public law are increasingly becoming a point of contention amongst legal scholars across the globe.
Professor Denis Baranger weighed into this debate at the 2017 Miegunyah Distinguished Visiting Fellow Lecture. A professor of public law at Université Panthéon-Assas since 2001, Professor Baranger’s CV boasts a plethora of awards, fellowships and public works, and he is one of the world’s leading scholars in the area of public law.
In his lecture, Professor Baranger contended that “you don’t get to understand public law by searching for its foundations, but by identifying its boundaries.”
With this contention as a basis, Professor Baranger went on to make two key claims in relation to the external and internal boundaries of public law. In regards to external boundaries, he suggested that “public law has emerged in a process of differentiation from private law.” In the context of internal boundaries, he said that there are two sides to public law; “the rational side…. and the political or autonomy side.”
Beginning with the external boundaries of public law, Professor Baranger attempted to undermine the arguments of those from the American realist and critical legal studies schools who assert that the divide between public and private law does not exist.
“These critical arguments point very interestingly to the utter lack of conceptual clarity or stability of the public-private law divide, but they have never challenged it successfully,” Professor Baranger said.
“The divide survives. Critics never prevail. This is mostly, I would contend, because the public/private law divide is institutionalised.”
He then showed how the public-private divide exists, largely through the fact that “rules of public law derogate from rules of private law, and appear as deviations from the private law rule.” Key examples from the structure and case law of the French and English jurisdictions were given to prove this point.
In the context of internal boundaries of public law, Professor Baranger explored both the rational side and autonomy side of public law.
The rationality side of public law is a limit on public law power, and “deals with the way public authorities exercise their power over the legal subjects” of a jurisdiction. Professor Baranger used the British case of Council of Civil Service Unions v Minister for the Civil Service and the recent widening of administrative acts that are subject to judicial review in France to demonstrate how this pursuit of rationality has expanded the boundaries of the rational strand of public law.
However, while the rationality side of public law has “been successfully developed overtime”, Professor Baranger argued that the autonomy or self-governance strand has not.
‘The greatest dangers to public law come from this state of underdevelopment. The glorious rise on the rational side of public law…should not make us underestimate the political side of things.’
Professor Baranger finished by drawing on the example of Brexit to demonstrate the divide between the rational and autonomy sides of public law. Before Brexit, the UK was in many regards “the model student of European Union law…yet the political crisis was looming,” however the importance of rationality has been overshadowed by calls for autonomy.
“Whatever you might think of British Brexit-teers, their political ideology reads an attempt to reclaim self-governance or autonomy. It’s relative popularity with the electorate shows there is something legitimate about it. Collective autonomy stands at the very core of modern politics.”
This point was driven home by the example of European Union law, which Professor Baranger believes has “failed very poorly from the point of view of the requirement of autonomy” as EU law is not the expression of the general will.
While Professor Baranger admitted to not having a solution to the problem of the rational and autonomy divide in public law, his lecture raised some very interesting points for those in attendance to take away and consider.