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Public law
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Public law is a theory of law governing the relationship between individuals (citizens, companies) and the state. Under this theory, Constitutional law, administrative law and criminal law are sub-divisions of public law. This theory is at odds with the concept of Constitutional law, which requires all law to be specifically enabled, and thereby sub-divisions, of a Constitution.
Generally speaking, private law is the area of law in a society that affects the relationships between individuals or groups without the intervention of the state or government.
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Public law is a theory of law governing the relationship between individuals (citizens, companies) and the state. Under this theory, Constitutional law, administrative law and criminal law are sub-divisions of public law. This theory is at odds with the concept of Constitutional law, which requires all law to be specifically enabled, and thereby sub-divisions, of a Constitution.
Generally speaking, private law is the area of law in a society that affects the relationships between individuals or groups without the intervention of the state or government. In many cases the public/private law distinction is confounded by laws that regulate private relations while having been passed by legislative enactment. In some cases these public statutes are known as laws of public order, as private individuals do not have the right to break them and any attempt to circumvent such laws is void as against public policy.
Areas of public law
- Constitutional law deals with the relationship between the state and individual, and the relationships between different branches of the state, such as the executive, the legislative and the judiciary. In most legal systems, these relationships are specified within a written constitutional document. However, in the United Kingdom of Great Britain and Northern Ireland (UK), due to historical and political reasons there does not exist one supreme, entrenched written document. The UK has an unwritten constitution—the constitution of this state is usually found in statutes, such as the Magna Carta (see Holt, J.C., Magna Carta, 2nd edition 1992), the Petition of Right, the Bill of Rights, The Act of Settlement 1700 and the Parliament Act 1911 and Parliament Act 1949. The constitution is also found in case-law, such as the historical decision in Entick v. Carrington (1765) 19 St Tr 1030, and the landmark decision of M v. Home Office (1994) 1 AC 377; (1992) QB 270. Due to the lack of a written constitution, the idea of the legislative supremacy of Parliament and the rule of law play an important role in the constitution (see A. V. Dicey, The Law of the Constitution (ed. E. C. S. Wade), 10th edition, 1959). Despite all this, in reality, much of the constitution is a political phenomenon, rather than a legal one.
- Administrative law refers to the body of law which 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 involves the state imposing sanctions for crimes committed by individuals so that society can achieve justice and a peaceable social order. This differs from Civil law in that civil actions are disputes between two parties that are not of significant public concern.
By country
Public/private law distinction in Canada
In the English provinces of Canada, the term private law is also known as English Common law, or just common law. These are judge-made laws. Public law is that law which is passed by either the provincial legislatures or by the federal Parliament. In Quebec private law is basically the civil code of Quebec, considered to be the primary source of private law. These laws are interpreted by judges but within the ambit of the codal provisions that have been enunciated by the legislators.
In the United States
Public/private law distinction
All U.S. states except Louisiana share a heritage with English law, so the private law of most U.S. states is called the common law; and the U.S. Constitution makes specific reference to the common law of England as the fundamental law of the federal United States.
Some states, such as New York (owing to its Dutch heritage), have strong civil law influences, and have enacted laws relating to obligations such as the General Obligations Law and the General Business Law. The distinction between the public and the private in law is often a hazy one. Many consumer protection laws are of a public law nature, which limits the ability of companies dealing with consumers to engage in transactions that fail to respect the rights of consumers.
Most laws that impose criminal penalties are considered public law, as these are intended to protect all members of society and not just the areas of interaction covered by contract and tort.
The legal system of Louisiana follows French legal tradition, especially the Code Napoleon, except where those traditions are effective overridden by contrary English-based legal principles in the U.S. Constitution (e.g., the English presumption of innocence in a criminal trial, which is contrary to the French presumption of guilt).
Alternate usage
Acts of Congress are designated as either "Public Laws", relating to the general public, or "Private Laws", relating to specific individuals. Since 1957 all Acts of Congress have been designated as "Public Law X-Y" or "Private Law X-Y", where X is the number of the Congress and Y is a number sequentially assigned to each act.
German-speaking countries
In German-language legal literature, there is an extensive discussion distinguishing public law from private law. A variety of theories have been used:
- Interest theory: Under this theory, going back to the Roman jurist Ulpian, public law governs legal matters that concern the public interest. This theory may be critiqued to the extent that issues of private law can affect the public interest.
- 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. This theory fails in areas commonly considered private law which also imply subordination, e.g. in employment law between employer and employee.
- The Subject theory considers public law to regulate the conduct of public authorities. This theory arguably fails when the state engages in contracting (for example, when buying office supplies, where regular contract law applies).
- 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.
Under the latter theory, both a contract of employment and situation such as the government buying office supplies are subject to private law. There are areas of law which are mixed under that definition, such as employment law, parts of which are public law (e.g. the activities of an employment inspectorate when investigating workplace safety etc.) and parts of which are private law (e.g. the employment contract).
The differentiation is primarily an academic debate, important mainly for the delineation between the competences of the court system and administrative authorities. A statute will normally include a section stating who is in charge of enforcement.
However, under the Austrian constitution the distinction is of some importance, as private law is among the exclusive compentences of federal legislation, whereas public law is partly a matter of state legislation. As a practical result, the distinction is thus a matter of how the constitution is to be interpreted most accurately.
See also
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