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Theorising the Rainbow? The Puzzle of the Public-private Divide

Theorising the Rainbow? The Puzzle of the Public-private Divide Two influential approaches to conceptualising the relationship between public and private law have suggested that the distinction between them should be abandoned. The first, as exemplified by Oliver, suggests that the distinction should be abandoned in favour of fusion based on the notion of commonality. The second, as exemplified by Teubner, rejects fusion, arguing for the replacement of the distinction with a concept capturing the multi-dimensional complexity of law in multiple social contexts: `polycontexturality'. This article focuses primarily on exploring conceptual puzzles presented by Oliver's `commonality thesis', and argues for a reconceptualisation of the relationship between public and private law as multi-layered. Monolithic and rigidly binary concepts alike should be replaced by a complex set of relationships – a position broadly supportive of Teubner's. However, it is argued that the relationships between public and private law are to be seen as existing on a spectrum, or even on an overarching meta-spectrum, in which the existence of distinctive `archetypal conceptual paradigms' influence as `meta-spectrum extremities'. This presents a limited caveat to Teubner's thesis. I suggest that explicit theoretical attention to both the implications of polycontexturality and the existence of the archetypal conceptual paradigms as meta-spectrum extremities might avoid occluding important distinctions and nuances within a fusion that tends illegitimately to subsume private law within a public law paradigm. Such an analysis, I argue, could enhance the coherence of the law in complex, multi-dimensional cases at the troubled borderline between public and private law. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Res Publica Springer Journals

Theorising the Rainbow? The Puzzle of the Public-private Divide

Res Publica , Volume 9 (2) – May 1, 2003

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Publisher
Springer Journals
Copyright
Copyright © 2003 by Kluwer Academic Publishers
Subject
Philosophy; Philosophy; Ethics; Philosophy of Law; Philosophy of Religion
ISSN
1356-4765
eISSN
1572-8692
DOI
10.1023/A:1024125527021
Publisher site
See Article on Publisher Site

Abstract

Two influential approaches to conceptualising the relationship between public and private law have suggested that the distinction between them should be abandoned. The first, as exemplified by Oliver, suggests that the distinction should be abandoned in favour of fusion based on the notion of commonality. The second, as exemplified by Teubner, rejects fusion, arguing for the replacement of the distinction with a concept capturing the multi-dimensional complexity of law in multiple social contexts: `polycontexturality'. This article focuses primarily on exploring conceptual puzzles presented by Oliver's `commonality thesis', and argues for a reconceptualisation of the relationship between public and private law as multi-layered. Monolithic and rigidly binary concepts alike should be replaced by a complex set of relationships – a position broadly supportive of Teubner's. However, it is argued that the relationships between public and private law are to be seen as existing on a spectrum, or even on an overarching meta-spectrum, in which the existence of distinctive `archetypal conceptual paradigms' influence as `meta-spectrum extremities'. This presents a limited caveat to Teubner's thesis. I suggest that explicit theoretical attention to both the implications of polycontexturality and the existence of the archetypal conceptual paradigms as meta-spectrum extremities might avoid occluding important distinctions and nuances within a fusion that tends illegitimately to subsume private law within a public law paradigm. Such an analysis, I argue, could enhance the coherence of the law in complex, multi-dimensional cases at the troubled borderline between public and private law.

Journal

Res PublicaSpringer Journals

Published: May 1, 2003

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