Plural Public Law

“Plural Public Law” (2020) 51 Ottawa Law Review 396-416

We live iN a world of increasing com- plexity, submerged by tidal waves of statutes, delegated legislation, soft law, judicial decisions, and administrative adjudication, and swept along by vicious rip tides of technological and social change. What role can and should com- mon law public lawyers play in a world of complexity and change? For public lawyers to remain relevant — never mind influential — requires plural public law, an approach based on a plurality of prin- ciples, sources, and methodologies. Rejecting any conception of the legal world as a neatly ordered set of norms proceeding logically from agreed prem- ises, I argue that public law is influenced by a plurality of principles: examining how these operate in the real world of legislation, executive action, adminis- trative adjudication, and judicial review sheds light on public law and provides public lawyers with tools to manage complexity and influence change. These principles are found in a plurality of sources, of which judicial decisions are only one. The legislative process, executive action, and adminis- trative adjudication also generate public law principles. With a massive volume of material pouring forth from these sources, public lawyers need to act quickly to triage the relevant from the irrelevant, a task for which social media (including blogs) are indispensable. Ensuring that a variety of meth- odological approaches are brought to bear on public law enriches our understanding of these principles. Normative, theoretical/philosophical, empirical, institutional, and inter- disciplinary approaches all have their place, as long as proponents of these approaches are epistemically modest enough to recognize that they probably will not be able to generate a unified field theory of public law and be sensi- tive to the legal system’s requirements of doctrinal rigour and coherence.

This content has been updated on May 2, 2023 at 15:30.