A conventional narrative : the rhetorical shape of foundations of public law

Loughlin's melancholic and pessimistic conclusion as to the current fate of public law sustains the conventional narrative to which I referred at the beginning of this article. I have argued that this narrative is driven by essentially liberal-conservative presuppositions where it is impossible to reconcile the rise of the social with the idea of law. Since the rise of the social is inexorable, this position requires us to adopt a view that is generally biased against the state in its late-modern incarnation(s). I have argued also that this view is not just insufficiently nuanced, but that it represses the knowledge that Loughlin most certainly has of a conception of freedom as the ground of political-juridical authority that is not liberal, but early modern. It is this early modern idea of freedom as immanent within sovereign power that permits an alternative account of the challenges that the rise of the social poses for the state thought of in Hegelian terms as ethical life: as both the system of public office and political society. In the suggestions I have offered as to how this alternative approach might work, I have sought to suggest an evaluative criterion by which we can distinguish when the state's responses to the rise of the social are congruent with the early modern understanding of the conditions of being free and when they are not. I have suggested that on this approach, regulation and juridical modes of state agency do not have to be thought of as in opposition but that on the contrary they can be thought of as complementary approaches, where one is able to do what the other cannot. Human rights, understood on this approach as the most recent iteration of the idea of the status of a free being, can be viewed as a late modern expression of political right to which both regulation and juridical modes of agency are to be held to account.