‘The public’ is a crucial concept in the disciplinary division and doctrinal
understanding of the legal realm, whilst also animating much scholarly exposition
of the relationship between law and society. This work provides a synoptic
overview of the instantiations of ‘the public’ which appear in a number of legal
spheres, and attempts to ascertain whether the notion can maintain a coherent
essence in spite of the heterogeneity of its application. A key question framing
the contributions relates to the work which is done by ‘the public’ in structuring
the relationship between law and society – the extent to and manner in which it
allows the interests and opinions of social groups to be represented and reflected
in legal discourse. A related, and subsequent question, concerns the ability of the
legal system to effectively impose such collectively-generated imperatives upon
political and economic actors.
It is clear that the notion of ‘the public’ plays a ‘gathering’ role in relation
to law and legal research that pertains to issues such as: the production and
management of public goods; the mediation of the relationship between citizens
and state agencies, and the rights and responsibilities entailed therein, and the
process of constitutional democracy that produces consensus from the interplay
of a plurality of opposed political interests. What is less certain, however, is
whether ‘the public’ functions in reality as an interface between law and the
political community, or rather inaugurates a process of self reference whereby
the legal system reproduces its own guiding logics. To the extent that ‘the public’
does genuinely operate as a hinge between the legal system and the collective
demands of an extra-legal political community, it should further be considered
whether the interests and identity of the latter are distorted in their transversal
of this boundary; is ‘the public’ deformed by its refraction into the legal? If the
movement from the ground zero of the population at large to the rising edifice of
‘the public’ is one of selective filtration, what can be said to have been lost in this
process of reduction? Further and related issues arise as to whether law’s function
can best be understood as representative or constitutive – questions which bear on
the fundamental relation between law and politics and the ontological (and thus
analytical) priority accorded each. In addition to these questions, the volume will
explore more broadly whether the notion of ‘the public’ is immanent to the form
and function of law as an institution, a discourse or a sub-set of social relations –
whether law has a necessarily public quality.