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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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The Public, the Private, and the Law

The Public, the Private, and the Law

Chapter:
(p.83) 5 The Public, the Private, and the Law
Source:
After Public Law
Author(s):

Claudio Michelon

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199669318.003.0005

Reflections on the movement towards a ‘publicization of private law’ are often presented as narratives of encroachment of a public law mentality into private law. Conversely, discussion on the movement towards the ‘privatization of public law’ is also presented as a narrative of encroachment running in the opposite direction. This chapter shows how these narratives rest on an oversimplified account of the relationship between, on the one hand, the underlying normativity of the public and the private domains of social action and, on the other, the normativity of public and private law. A more complex (and less naïve) understanding of that relationship would allow for a better understanding of both movements. As the argument goes, some of the central underlying normative assumptions of law (in general) do not overlap significantly with the broader normative assumptions embedded in the distinction between a public and a private domain of social action (as it is often assumed). Once those different normative assumptions are laid bare it is possible to re-imagine the ‘publicization of private law’ as a narrative of fulfilment, rather than a narrative of encroachment.

Keywords:   theory of private law, public/private divide, normativity of law, legal theory, public law/private law boundary

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