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Public law is the part of law that governs relations and affairs betweenlegal persons and agovernment,[1] between different institutions within astate, betweendifferent branches of governments,[2] as well as relationships between persons that are of direct concern to society. Public law comprisesconstitutional law,administrative law,tax law andcriminal law,[1] as well as allprocedural law. Laws concerning relationships between individuals belong toprivate law.
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 therule-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 forjudicial review.
The distinction between public law and private law dates back toRoman law, where theRoman juristUlpian (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 thecivil-law tradition, and of those that adhere tocommon-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 atheoretical understanding for the basis of public law.
The distinction between public and private law was first made byRomanjuristUlpian, who argues in theInstitutes (in a passage preserved byJustinian in theDigest ) 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, andoffices 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 inTeutonic society, as noted by German legal historianOtto 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, asErnst Kantorowicz notes,Medieval jurists saw a concern with the Roman conception of theres publica inherent in thelegal fiction of theking's two bodies.[8] However,legal philosophers during this period were largely theologians who operated within the realm ofCanon Law, and were therefore instead concerned with distinctions betweendivine law,natural law, andhuman law.[9] The "public/private" divide in law would not return until the 17th and 18th centuries. Through the emergence of thenation-state and new theories ofsovereignty, notions of a distinctlypublic 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 distinctlyprivate sphere that would be free from encroaching State power in return.[10]
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 ofcivil 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 consideredgeneral 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 theconstitutionalization of private law, as well as the development ofadministrative law and various functional fields of law, includinglabor law,medical law, andconsumer 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 ofstate-building, following the ideas ofVittorio 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 ofconstitutional law, administrative law, andcriminal 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 – therule 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 arethe executive,the legislature andthe judiciary.
And thirdly, in describing what are the basic human rights, which must be protected for every person, and what furthercivil and political rights citizens have, it sets the fundamental borders to whatany 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 – theConstitution of the United Kingdom is an unwritten one.
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 theexecutive branch of a government rather than thejudicial orlegislative branches (if they are different in that particular jurisdiction). This body of law regulatesinternational trade, manufacturing, pollution, taxation, and the like. This is sometimes seen as a subcategory ofcivil law and sometimes seen as public law as it deals with regulation and public institutions
Criminal law is the body oflaw that relates tocrime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to theproperty,health,safety, andwelfare of people inclusive of one's self. Most criminal law is established bystatute, which is to say that the laws are enacted by alegislature. Criminal law includes thepunishment andrehabilitation of people who violate such laws.
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.
The analytical and historical distinction between public and private law has emerged predominantly in the legal systems ofcontinental 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 ofRoman juristUlpian, who stated "Publicum ius est, quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem. (Public law is that which concerns the Roman state, and private law is concerned with the interests of citizens.)Charles-Louis Montesquieu elaborates upon this theory inThe 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 theright 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 thepolitical right. Further, they have laws concerning the relation that all citizens have with one another, and this is thecivil 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 asemployment 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 (seeCarpenter 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 thatimperium in the particular relationship. In other words, it all depends on 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 asemployment 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 a bearing on the delineation between the competencies of different courts and administrative bodies. Under theAustrian constitution, for example, private law is among the exclusive competencies of federal legislation, whereas public law is partly a matter ofstate legislation.
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