Public law?

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Public law is the area of the law governing the relationship between individuals (citizens, companies) and the state. Constitutional law, administrative law and criminal law are thus all sub-divisions of public law.

Generally speaking private law is the area of law in a society that effects 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 are void as against public policy.

Public/Private law distinction in Canada

In the English provinces of Canada, the term private law is also known called British 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.

Public/Private law distinction in the United States

As most U.S. states share a common heritage with English law the private law of the United States is generally called the common law as well as other Anglo-American common law jurisdictions. Some states, such as New York have strong civil law influences and have enacted laws relating to obligations such as the General Obligations Law and the General Business Law. These laws show how the distinction between the public and the private in law are often a hazy distinction. Many consumer protection laws are also of a public law nature, which limit the ability of companies dealing with consumers to engage in transactions with consumers that fail to respect the rights of consumers. Most laws that have penal or criminal penalties are considered to be public law as these laws are intended to protect all members of society and not just the areas of interaction that are covered by contract and tort.

German-speaking countries

In German-language legal literature, there was an extensive discussion on how to distinguish public law from private law in the past. A variety of theories were used:

• Interest theory: Under that theory, going back to the Roman jurist Ulpian, public law governs legal matters that concern the public interest. This theory is obviously flawed, as issues of private law can of course affect the public interest quite strongly.
• 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 fails e.g. when the state engages in contracting, for example when buying office supplies, where regular contract law applies.
• However, a combination of the subjection theory and the subject theory seem to provide 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.

Thus, under the latter theory, both a contract of employment and situation such as the government buying office supplies are subject to private law. Needless to say, there 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).

In any case, the differentiation is almost exclusively an academic debate. The distinction of law is important mostly for the deliniation between the competences of the court system and administrative authorities. Nowadays, 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.

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