"Down the rabbit-hole": The projection of the public/private distinction beyond the state

This article deals with two of the greatest “dualisms” present in contemporary legal systems: the distinction between international law and domestic law on the 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 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 finds 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 recreating a “familiar” legal endeavor beyond the state. But this projection can be problematic: like in Lewis 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.

This article deals with two of the greatest "dualisms" present in contemporary legal systems: the distinction between international law and domestic law on the 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 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 finds 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 recreating a "familiar" legal endeavor beyond the state. But this projection can be problematic: like in Lewis 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. © The Author 2014. Oxford University Press and New York University School of Law. All rights reserved.