‘Down the Rabbit Hole’: The Projection of the Public/Private Distinction Beyond the State

Abstract

This paper deals with two of the greatest “dualisms” present in contemporary legal systems: the distinction between international law and domestic law on one hand, and the distinction between public law and private law on the other.

The evolution of these two great dualisms is linked to the emergence of global public interests, the strategic role played by States and domestic administrations in the global arena, and the need to control and review how global hybrid institutions exercise their increasing powers. This contributes significantly to the emergence of a multipolar administrative law, in which both public and private traits, and both domestic and international dimensions, constantly interact. Beyond the State, public and private law find new ways of combining, borrowing tools and imitating solutions. In particular, when the public/private distinction goes international, it operates as a technology of global governance: it is a “proxy” for bringing given values into a new legal context and for re-creating a “familiar” legal endeavour beyond the State. But this projection can be problematic: like in Carroll’s “Rabbit-Hole”, there is no guarantee that, when the values and legal mechanisms behind them are moved from one level to another, they will remain the same.