ABSTRACT
What is the nature and scope of public law? There are three types of definition: descriptive, analytic and normative. A descriptive definition would comprise an amalgam of the table of contents of standard public law texts and a codification of the topics taught in public law courses. Such a definition will be conservative in the sense that it reproduces prevailing principles, concepts and practices of public law. To overcome that problem, an analytic definition might try to identify the meaning of the term public law, contrasting ‘public’ and ‘private’ law and pointing out that ‘law’ refers to legislation, rules and processes. The difficulties of this type of definition have been clearly documented by Andrew Le Sueur and Maurice Sunkin and they adopt the innovative strategy of supplementing that discussion with vignettes of public law as perceived by a government minister, a citizen and an academic.1 In including the citizen’s perspective, this strategy introduces a normative element, a matter of principle, into the definition of public law, for it emphasises how the constitutional system ought to relate to individual citizens or campaigning groups. The fullest development of this approach is to give a normative definition of public law, a proposal for how public law ought to be studied. Indeed, a standard text of public law opens with the vigorous claim that:
The starting point for studying constitutional law should ideally be the same starting point as for studying political philosophy, or the role of law and government in society. How is individual freedom to be reconciled with the claims of social justice? Is society founded upon a reciprocal network of rights and duties, or is the individual merely a pawn in the hands of state power?2
