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The Idea of Public Law$
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Martin Loughlin

Print publication date: 2004

Print ISBN-13: 9780199274727

Published to Oxford Scholarship Online: February 2010

DOI: 10.1093/acprof:oso/9780199274727.001.0001

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(p.131) 8 Method
The Idea of Public Law

Martin Loughlin

Oxford University Press

This chapter investigates what is special about the method of public law. It explains that the tendency to confine the idea of law to positive law is due to the phenomenon of juridification, which is the tendency to conceptualize extensive spheres of public life in legal terms. It examines Henry de Bracton’s texts that contain numerous statements regarding law and royal authority that don't seem to be compatible. It also evaluates Jean Bodin’s views on sovereignty. It evaluates the ideas regarding ‘fundamental laws’ and droit politique. It also assesses the relations between politics and morality. It explains that the method of public law is the method of prudence. It adds that this prudential method is a juristic interpretation of Machiavelli’s thought. It clarifies that the prudential method is a form of practical reason in which rules serve as maxims whose meaning and application vary according to circumstance.

Keywords:   method of public law, positive law, juridification, Henry de Bracton, Jean Bodin, droit politique, Machiavelli

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