A conventional narrative. The rhetorical shape of Martin Loughlin’s Foundations of Public Law

Despite the many virtues of Foundations of Public Law, Martin Loughlin’s account of the idea of public law is marred by a failure to reconcile his use of the early modern account of public law with the liberal conception of the rule of law. The early modern account depends on an anti-feudal idea of what Skinner calls the idea of liberty before liberalism. Here it is the state that makes possible the status of freedom, there being no freedom under feudal rule, where the state as an organized system of public office does not exist. In the liberal conception the role of law is to confirm a natural condition of freedom that pre-exists the state and to check the tendency of the state to interfere with or violate this condition. The difference of these conceptions is of consequence for how the rise of the social is conceived. The early modern conception can be developed to fit this new historical concept. When this occurs, new powers of administration and regulation that belong to the state in relation to the social are conceived so that they articulate and respond to the principles of public law. However, on the terms of the liberal conception, the rise of the social in its implications for state power signals a set of antagonistic forces for the principles of public law, now interpreted as safeguards for a natural condition of individual freedom. Loughlin opts for this latter account of the 20th century administrative state which thereby commits him to a particular liberal-conservative and pessimistic view of the possibilities of the contemporary state and public law.