The Lie of Constitutional Governance

This intervention takes up the chapter on the substitution (of political for market constitutionalism) which is played out under the sign of governance. Where in the past the distinction between public law and private law organised the field and demarcated the spheres of public interest and individual freedom respectively, today we confront the pervasive move that no longer pits them against each other but underwrites them both. The market principle that was understood as the principle subtending the transactional nature of private law as distinct from public law, gradually becomes the arbiter of the separation itself and guarantor of the circulation (‘balancing’ in the preferred idiom) of public goods. The discussion will both track the solidity of this reconstruction and the availability of constitutional redress