Public law

Last updated

Public law is the part of law that governs relations and affairs between legal persons and a government, [1] between different institutions within a state, between different branches of governments, [2] as well as relationships between persons that are of direct concern to society. Public law comprises constitutional law, administrative law, tax law and criminal law, [1] as well as all procedural law. Laws concerning relationships between individuals belong to private law.

Contents

The relationships public law governs are asymmetric and unequalized. Government bodies (central or local) can make decisions about the rights of persons. However, as a consequence of the rule-of-law doctrine, authorities may only act within the law (secundum et intra legem). The government must obey the law. For example, a citizen unhappy with a decision of an administrative authority can ask a court for judicial review.

The distinction between public law and private law dates back to Roman law, where the Roman jurist Ulpian (c. 170 – 228) first noted it. [3] It was later[ when? ] adopted[ by whom? ] to understand the legal systems both of countries that adhere to the civil-law tradition, and of those that adhere to common-law tradition.

The borderline between public law and private law is not always clear. Law as a whole cannot neatly be divided into "law for the State" and "law for everyone else". As such, the distinction between public and private law is largely functional rather than factual, classifying laws according to which domain the activities, participants, and principal concerns involved best fit into. [2] This has given rise to attempts to establish a theoretical understanding for the basis of public law.

History of public law

The distinction between public and private law was first made by Roman jurist Ulpian, who argues in the Institutes (in a passage preserved by Justinian in the Digest ) that "[p]ublic law is that which respects the establishment of the Roman commonwealth, private that which respects individuals' interests, some matters being of public and others of private interest." Furthermore, he defines public law as the law concerning religious affairs, the priesthood, and offices of the State. [4] Roman Law conceived of the law as a series of relationships between persons and persons, persons and things, and persons and the State. Public law consisted of the latter of these three relationships. [5] However, Roman lawyers devoted little attention to this area, and instead focussed largely on areas of private law. It was, however, of great importance in Teutonic society, as noted by German legal historian Otto von Gierke, who defined the Teutons as the fathers of public law. [6]

Drawing a line between public and private law largely fell out of favor in the ensuing millennium, [7] though, as Ernst Kantorowicz notes, Medieval jurists saw a concern with the Roman conception of the res publica inherent in the legal fiction of the king's two bodies. [8] However, legal philosophers during this period were largely theologians who operated within the realm of Canon Law, and were therefore instead concerned with distinctions between divine law, natural law, and human law. [9] The "public/private" divide in law would not return until the 17th and 18th centuries. Through the emergence of the nation-state and new theories of sovereignty, notions of a distinctly public realm began to crystalize. However, the claims made by monarchs, and later parliaments, to an unrestrained power to make law spurred attempts to establish a distinctly private sphere that would be free from encroaching State power in return. [10]

Public law in civil law and common law jurisdictions

Traditionally, the division between public and private law has been made in the context of the legal systems found in Continental Europe, whose laws all fall within the tradition of civil law. However, the public/private divide does not apply strictly to civil law systems. Given public law's emphasis on aspects of the State that are true of all systems of government and law, common law legal systems acknowledge, even if they do so unconsciously, that actions which must be prohibited by the State need not necessarily be prohibited for private parties as well. [7] As such, legal scholars commenting on common law systems, such as England [11] and Canada, [12] have made this distinction as well.

For many years, public law occupied a marginal position in continental European law. By and large, private law was considered general law. Public law, on the other hand, was considered to consist of exceptions to this general law. [13] It was not until the second half of the twentieth century that public law began to play a prominent role in European society through the constitutionalization of private law, as well as the development of administrative law and various functional fields of law, including labor law, medical law, and consumer law. Though this began to blur the distinction between public and private law, it did not erode the former. Instead, it elevated public law from its once marginal state, with an acknowledgment that there are few, if any, areas of the law that are free from potential State intervention. [14] In Italy, for example, the development of public law was considered a project of state-building, following the ideas of Vittorio Emanuele Orlando. Indeed, many early Italian public lawyers were also politicians, including Orlando himself. [15] Now, in countries such as France, [16] public law now refers to the areas of constitutional law, administrative law, and criminal law.

Areas of public law

Constitutional law

In modern states, constitutional law lays out the foundations of the state. Above all, it postulates the supremacy of law in the functioning of the state – the rule of law.

Secondly, it sets out the form of government – how its different branches work, how they are elected or appointed, and the division of powers and responsibilities between them. Traditionally, the basic elements of government are the executive, the legislature and the judiciary.

And thirdly, in describing what are the basic human rights, which must be protected for every person, and what further civil and political rights citizens have, it sets the fundamental borders to what any government must and must not do.

In most jurisdictions, constitutional law is enshrined in a written document, the Constitution, sometimes together with amendments or other constitutional laws. In some countries, however, such a supreme entrenched written document does not exist for historical and political reasons – the Constitution of the United Kingdom is an unwritten one.

Administrative law

Administrative law refers to the body of law that regulates bureaucratic managerial procedures and defines the powers of administrative agencies. These laws are enforced by the executive branch of a government rather than the judicial or legislative branches (if they are different in that particular jurisdiction). This body of law regulates international trade, manufacturing, pollution, taxation, and the like. This is sometimes seen as a subcategory of civil law and sometimes seen as public law as it deals with regulation and public institutions

Criminal law

This type of law comprises the constitutional law, tax law, administrative law and criminal law.

Tax law

Tax law first became an area of public law during the 17th century, as a consequence of new theories of sovereignty that began to emerge. Until this point, taxes were considered gifts under the law, given to the State by a private donor – the taxpayer. [17] It is now considered an area of public law, as it concerns a relationship between persons and the State.

Theoretical distinction between private and public law

The analytical and historical distinction between public and private law has emerged predominantly in the legal systems of continental Europe. [7] As a result, German-language legal literature has produced extensive discussion on the precise nature of the distinction between public law and private law. [18] Several theories have evolved, which are neither exhaustive nor mutually exclusive or separate.

The interest theory of public law emerges from the work of Roman jurist Ulpian, who stated "Publicum ius est, quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem. (Public law is that, which concerns Roman state, private law is concerned with the interests of citizens.) Charles-Louis Montesquieu elaborates upon this theory in The Spirit of the Laws, [19] published during the 18th century, wherein Montesquieu establishes a distinction between international (right of nations), public (political right), and private (civil right) law according to various actors interests and rights. There, he writes: "Considered as inhabitants of a planet so large that different peoples are necessary, they have laws bearing on the relation that these peoples have with one another, and this is the right of nations. Considered as living in a society that must be maintained, they have laws concerning the relation between those who govern and those who are governed, and this is the political right. Further, they have laws concerning the relation that alI citizens have with one another, and this is the civil right." [20]

Criticisms of interest theory include the difficulty in establishing a clear distinction between private and public interest, if such a distinction does exist, and categorizing laws accordingly.

The subjection theory focuses on explaining the distinction by emphasizing the subordination of private persons to the state. Public law is supposed to govern this relationship, whereas private law is considered to govern relationships where the parties involved meet on a level playing field. However, some areas commonly considered private law also imply subordination, such as employment law. Moreover, legal proceedings wherein the State is a party may undermine the totality of the State's authority, and the degree to which private persons are subordinate to the State, if a Court finds in favor of a non-State party (see Carpenter v. United States, for example).

The subject theory is concerned with the position of the subject of law in the legal relationship in question. If it finds itself in a particular situation as a public person (due to membership in some public body, such as a state or a municipality), public law applies, otherwise it is private law.

A combination of the subjection theory and the subject theory arguably provides a workable distinction. Under this approach, a field of law is considered public law where one actor is a public authority endowed with the power to act unilaterally (imperium) and this actor uses that imperium in the particular relationship. In other words, all depends whether the public authority is acting as a public or a private entity, say when ordering office supplies. This latest theory considers public law a special instance.

There are areas of law that do not seem to fit into either public or private law, such as employment law – parts of it look like private law (the employment contract) while other parts look like public law (the activities of an employment inspectorate when investigating workplace safety).

The distinction between public and private law has bearing on the delineation between competences of different courts and administrative bodies. Under the Austrian constitution, for example, private law is among the exclusive competences of federal legislation, whereas public law is partly a matter of state legislation.

See also

Notes

  1. 1 2 Elizabeth A. Martin (2003). Oxford Dictionary of Law (7th ed.). Oxford: Oxford University Press. ISBN   0198607563.
  2. 1 2 Forcese, Craig; Dodek, Adam; Bryant, Philip; Carver, Peter; Haigh, Richard; Liston, Mary; MacIntosh, Constance (2015). Public Law: Cases, Commentary and Analysis (Third ed.). Toronto, ON: Emond Montgomery Publishing Ltd. p. 4. ISBN   978-1-55239-664-3.
  3. ↑ Cherednychenko, Olha (April 18, 2007). Fundamental Rights, Contract Law, and Protection of the Weaker Party. Utrecht, Netherlands: Utrecht University Institute for Legal Studies. p. 21. hdl:1874/20945.
  4. ↑ Justinian; Watson, Alan (1985). The Digest of Justinian. Philadelphia, PA: University of Pennsylvania Press. p. 1. ISBN   978-0-8122-2033-9.
  5. ↑ Cherednychenko, p. 21-22.
  6. ↑ Cohen, Morris (1927). "Property and Sovereignty". Cornell Law Review. 13 (1): 8. Retrieved August 7, 2020.
  7. 1 2 3 Cherednychenko, p. 22.
  8. ↑ Kantorowicz, Ernst (May 10, 2016). The King's Two Bodies: A Study in Medieval Theology. Princeton, NJ: Princeton University Press. ISBN   978-0-691-16923-1.
  9. ↑ Aquinas, Thomas (2000). Treatise on Law. Indianapolis, IN: Hacket Publishing Company. ISBN   978-0-87220-548-2.
  10. ↑ Horwitz, Morton (1982). "The History of the Public/Private Distinction" (PDF). University of Pennsylvania Law Review. 130 (6): 1423–1428. doi:10.2307/3311976. JSTOR   3311976. S2CID   51854776 . Retrieved June 28, 2020.
  11. ↑ Murkens, Jo Eric Khushal (July 15, 2009). "The Quest for Constitutionalism in UK Public Law Discourse" . Oxford Journal of Legal Studies. 29 (3): 427–455. doi:10.1093/ojls/gqp020 . Retrieved June 29, 2020.
  12. ↑ Forcese et al..
  13. ↑ Cherednychenko, p. 22-23.
  14. ↑ Cherednychenko, p. 23-24.
  15. ↑ Casini, Lorenzo; Cassese, Sabino; Napolitano, Giulio (April 2011). "The New Italian Public Law Scholarship". International Journal of Constitutional Law. 9 (2): 302–303. doi: 10.1093/icon/mor049 . Retrieved June 29, 2020.
  16. ↑ Bell, John; Boyron, Sophie; Whittaker, Sophie (2008). Principles of French Law. Oxford, UK: Oxford University Press. pp. 141–240. ISBN   9780199541393 . Retrieved June 29, 2020.
  17. ↑ Horwitz, p. 1423-1424.
  18. ↑ Jakab, András (2006). European Constitutional Language. Cambridge, UK: Cambridge University Press. pp. 387–400. ISBN   978-1-107-13078-4.
  19. ↑ Vértesy, László (2007). "The Place and Theory of Banking Law – Or Arising of a New Branch of Law: Law of Financial Industries". Collega. 2–3. XI. SSRN   3198092.
  20. ↑ Montesquieu, Charles-Louis de Secondat, Baron de La Brède et de (1989). The Spirit of the Laws. Cambridge, UK: Cambridge University Press. p. 7.{{cite book}}: CS1 maint: multiple names: authors list (link)

Related Research Articles

<span class="mw-page-title-main">Comparative law</span> Study of relationship between legal systems

Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves the study of the different legal "systems" in existence in the world, including the common law, the civil law, socialist law, Canon law, Jewish Law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalization, and democratization.

<span class="mw-page-title-main">Jurisprudence</span> Theoretical study of law

Jurisprudence is the philosophy and theory of law. It is concerned primarily with both what the law is and what it ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law. Work that is counted as jurisprudence is mostly philosophical, but it includes work that also belongs to other disciplines, such as sociology, history, politics and economics.

<span class="mw-page-title-main">Roman law</span> Legal system of Ancient Rome (c. 449 BC – AD 529)

Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.

Separation of powers is the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with others. The typical division into three branches of government, sometimes called the trias politica model, includes a legislature, an executive, and a judiciary. It can be contrasted with the fusion of powers in monarchies, but also parliamentary and semi-presidential systems where there can be overlap in membership and functions between different branches, especially the executive and legislative.

<span class="mw-page-title-main">Sovereignty</span> Supreme authority within a territory

Sovereignty can generally be defined as supreme authority. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the person, body or institution that has the ultimate authority over other people in order to establish a law or change existing laws. In political theory, sovereignty is a substantive term designating supreme legitimate authority over some polity. In international law, sovereignty is the exercise of power by a state. De jure sovereignty refers to the legal right to do so; de facto sovereignty refers to the factual ability to do so. This can become an issue of special concern upon the failure of the usual expectation that de jure and de facto sovereignty exist at the place and time of concern, and reside within the same organization.

<span class="mw-page-title-main">Montesquieu</span> French social commentator and political thinker (1689–1755)

Charles Louis de Secondat, Baron de La Brède et de Montesquieu, generally referred to as simply Montesquieu, was a French judge, man of letters, historian, and political philosopher.

Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts and torts, and the law of obligations. It is to be distinguished from public law, which deals with relationships between both natural and artificial persons and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private individuals, whereas public law involves interrelations between the state and the general population.

<span class="mw-page-title-main">Legal history</span> Study of how law has evolved and why it has changed

Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilisations and operates in the wider context of social history. Certain jurists and historians of legal process have seen legal history as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts; some consider legal history a branch of intellectual history. Twentieth-century historians viewed legal history in a more contextualised manner – more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyse case histories from the parameters of social-science inquiry, using statistical methods, analysing class distinctions among litigants, petitioners and other players in various legal processes. By analyzing case outcomes, transaction costs, and numbers of settled cases, they have begun an analysis of legal institutions, practices, procedures and briefs that gives a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.

<i>The Spirit of Law</i> Book by Montesquieu

The Spirit of Law, also known in English as The Spirit of [the] Laws, is a treatise on political theory, as well as a pioneering work in comparative law by Montesquieu, published in 1748. Originally published anonymously, as was the norm, its influence outside France was aided by its rapid translation into other languages. In 1750 Thomas Nugent published an English translation, many times revised and reprinted in countless editions. In 1751 the Roman Catholic Church added De l'esprit des lois to its Index Librorum Prohibitorum.

The law of Germany, that being the modern German legal system, is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws, for example most regulations of the civil code were developed prior to the 1949 constitution. It is composed of public law, which regulates the relations between a citizen/person and the state or two bodies of the state, and the private law, (Privatrecht) which regulates the relations between two people or companies. It has been subject to a wide array of influences from Roman law, such as the Justinian Code the Corpus Juris Civilis, and a to a lesser extent the Napoleonic Code.

<span class="mw-page-title-main">Law of South Africa</span> Legal system of the Republic of South Africa

South Africa has a 'hybrid' or 'mixed' legal system, formed by the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans. These traditions have had a complex interrelationship, with the English influence most apparent in procedural aspects of the legal system and methods of adjudication, and the Roman-Dutch influence most visible in its substantive private law. As a general rule, South Africa follows English law in both criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in the South African contract law, law of delict (tort), law of persons, law of things, family law, etc. With the commencement in 1994 of the interim Constitution, and in 1997 its replacement, the final Constitution, another strand has been added to this weave.

International law is the set of rules, norms, and standards generally recognized as binding between states. It establishes norms for states across a broad range of domains, including war and diplomacy, economic relations, and human rights. International law differs from state-based domestic legal systems in that it is primarily, though not exclusively, applicable to states, rather than to individuals, and operates largely through consent, since there is no universally accepted authority to enforce it upon sovereign states. States may choose to not abide by international law, and even to breach a treaty but such violations, particularly of peremptory norms, can be met with disapproval by others and in some cases coercive action ranging from diplomatic and economic sanctions to war.

William Warwick Buckland, FBA was a scholar of Roman law, Regius Professor of Civil Law at the University of Cambridge from 1914 to 1945.

<span class="mw-page-title-main">Law</span> System of rules and guidelines, generally backed by governmental authority

Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the art of justice. State-enforced laws can be made by a group legislature or by a single legislator, resulting in statutes; by the executive through decrees and regulations; or established by judges through precedent, usually in common law jurisdictions. Private individuals may create legally binding contracts, including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation. The creation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and also serves as a mediator of relations between people.

<span class="mw-page-title-main">Judicial review</span> Ability of courts to review actions by executive and legislatures

Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are incompatible with a higher authority. For example, an executive decision may be invalidated for being unlawful, or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers—the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

<span class="mw-page-title-main">Body politic</span> Metaphor comparing a polity to a body

The body politic is a polity—such as a city, realm, or state—considered metaphorically as a physical body. Historically, the sovereign is typically portrayed as the body's head, and the analogy may also be extended to other anatomical parts, as in political readings of Aesop's fable of "The Belly and the Members". The image originates in ancient Greek philosophy, beginning in the 6th century BC, and was later extended in Roman philosophy. Following the high and late medieval revival of the Byzantine Corpus Juris Civilis in Latin Europe, the "body politic" took on a jurisprudential significance by being identified with the legal theory of the corporation, gaining salience in political thought from the 13th century on. In English law the image of the body politic developed into the theory of the king's two bodies and the Crown as corporation sole.

Lex animata is a Latin term for the law being embodied in a living entity, usually the sovereign by the grace of God. In that sense a king could be lex animata, a living, breathing law. The equivalent Greek term, used in the Byzantine Empire, is νόμος ἔμψυχος, nómos émpsychos.

<span class="mw-page-title-main">Law of Italy</span> Legal system of Italy

The law of Italy is the system of law across the Italian Republic. The Italian legal system has a plurality of sources of production. These are arranged in a hierarchical scale, under which the rule of a lower source cannot conflict with the rule of an upper source.

<span class="mw-page-title-main">Code of Justinian</span> 529 codification of Roman law by Justinian I of Byzantium

The Code of Justinian is one part of the Corpus Juris Civilis, the codification of Roman law ordered early in the 6th century AD by Justinian I, who was Eastern Roman emperor in Constantinople. Two other units, the Digest and the Institutes, were created during his reign. The fourth part, the Novellae Constitutiones, was compiled unofficially after his death but is now also thought of as part of the Corpus Juris Civilis.

In the Roman Dominate and Latin jurisprudence down to the 18th century, the lex regia was the supposed law by which unlimited imperium or authority had been transferred from the Roman people to the emperor. Emperor Justinian summarised the law in the decree by which he established the commission to compile the Digest in AD 530, Deo auctore: "By an ancient law [lege antiqua], which was called 'royal' [regia], all the authority and all the power of the Roman people were transferred to the power of the emperor." The concept originates somewhat earlier, however: Ulpian, in the early 3rd century, may already have referred to the law, though the meaning and even the authenticity of his use of the term are contested.

References

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.