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After Public Law$
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Cormac Mac Amhlaigh, Claudio Michelon, and Neil Walker

Print publication date: 2013

Print ISBN-13: 9780199669318

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199669318.001.0001

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Public Law and the Emergence of the Political

Public Law and the Emergence of the Political

Chapter:
(p.25) 3 Public Law and the Emergence of the Political
Source:
After Public Law
Author(s):

Chris Thornhill

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199669318.003.0003

This chapter addresses the relation between the construction of the modern political system and the emergence of public law. It argues that the political system developed through a triadic process of functional differentiation and abstraction, in which European states obtained, first, a judicial order; second, a fiscal apparatus; and third, mechanisms for representation. Each of these stages was made possible by an increasingly ordered system of public law, which underscored the political system's self-organization and autonomy. The dimension of public law relating to rights has particular significance in this process; rights form the underlying code for the differentiated political system. The chapter proceeds to argue that the heterarchical dispersal of the law in contemporary society is not discontinuous with classical public law. The transnational, rights-mediated constitution of global society actually extends classical constitutional law, and it reconfigures the basic functions of public law as a medium for the abstraction of the political system.

Keywords:   state formation, political abstraction, rights, heterarchy, transnational public law

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