Baranger on the Boundaries of Public Law

Readers may be interested in listening to Professor Denis Baranger’s Miegunyah Distinguished Visiting Fellow Lecture at the Melbourne Law School. A helpful summary is available here:

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.”

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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.’

There is much to the argument that the study of the boundaries of public law can be revelatory. Indeed, the case law on extra-statutory decision-making reveals a judicial concern with balancing rationality on the one hand (in terms of upholding good governance and protecting individual rights) and with autonomy on the other hand (in terms of not interfering unduly with regulatory choices made by experts). The same can be said of case law on the review of prerogative powers, where there is an added concern for autonomy in terms of the democratic legitimacy and accountability of the decision-makers.

The lecture, and the comments from the audience, are worth listening to.

This content has been updated on September 14, 2017 at 12:15.