Public law
Encyclopedia
Public law is a theory of law
governing the relationship between individual
s (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 laws 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.
, 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 this within the ambit of the codal provisions that have been enunciated by the legislators.
(owing to its Dutch heritage), have strong civil-law influences, and have enacted laws relating to obligations; e.g., the General Obligations Law and the General Business Law. The distinction between what is public and what is private in the law is often a hazy one. Many consumer protection
laws are of a public law nature, which limits the ability of companies to engage in transactions that fail to respect the rights of consumers. Most laws that impose criminal penalties are considered public law, as these laws are intended to protect all members of society, and this not just in the areas of interaction covered by contract
and tort
laws. The legal system of Louisiana
follows the French legal tradition, especially the Code Napoleon, except where those traditions are effectively overridden by contrary English-based legal principles in the U.S. Constitution.
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.
legal literature, there is an extensive discussion distinguishing public law from private law. A variety of theories have been used:
Under the latter theory, both a contract of 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.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
governing the relationship between individual
Individual
An individual is a person or any specific object or thing in a collection. Individuality is the state or quality of being an individual; a person separate from other persons and possessing his or her own needs, goals, and desires. Being self expressive...
s (citizens, companies) and the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
. Under this theory, constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
, administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
and criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
are sub-divisions of public law. This theory is at odds with the concept of Constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
, which requires all laws to be specifically enabled, and thereby sub-divisions, of a Constitution.
Generally speaking, private law
Private law
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 or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
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 lawConstitutional lawConstitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
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 (UKUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
), 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 CartaMagna CartaMagna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
(see Holt, J.C., Magna Carta, 2nd edition 1992), the Petition of RightPetition of rightIn English law, a petition of right was a remedy available to subjects to recover property from the Crown.Before the Crown Proceedings Act 1947, the British Crown could not be sued in contract...
, the Bill of RightsBill of Rights 1689The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
, The Act of Settlement 1700Act of Settlement 1701The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...
and the Parliament Act 1911Parliament Act 1911The Parliament Act 1911 is an Act of the Parliament of the United Kingdom. It is constitutionally important and partly governs the relationship between the House of Commons and the House of Lords which make up the Houses of Parliament. This Act must be construed as one with the Parliament Act 1949...
and Parliament Act 1949Parliament Act 1949The Parliament Act 1949 is an Act of the Parliament of the United Kingdom.This Act must be construed as one with the Parliament Act 1911...
. 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. DiceyA. V. Dicey- References :...
, 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 lawAdministrative lawAdministrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public 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 governmentGovernmentGovernment refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
rather than the judicial or legislative branches (if they are different in that particular jurisdiction). This body of law regulates international tradeInternational tradeInternational trade is the exchange of capital, goods, and services across international borders or territories. In most countries, such trade represents a significant share of gross domestic product...
, manufacturingManufacturingManufacturing is the use of machines, tools and labor to produce goods for use or sale. The term may refer to a range of human activity, from handicraft to high tech, but is most commonly applied to industrial production, in which raw materials are transformed into finished goods on a large scale...
, pollutionPollutionPollution is the introduction of contaminants into a natural environment that causes instability, disorder, harm or discomfort to the ecosystem i.e. physical systems or living organisms. Pollution can take the form of chemical substances or energy, such as noise, heat or light...
, taxTaxTo tax is to impose a financial charge or other levy upon a taxpayer by a state or the functional equivalent of a state such that failure to pay is punishable by law. Taxes are also imposed by many subnational entities...
ation, 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.
- Statutory lawStatutory lawStatutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...
regulates our behavior by setting rules, like speed limits, and established rights and benefits, such as drivers license and Social Security benefits. A legislative branch of government writes this type of law.
Canada
In the "English" provinces of CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the term private law is also known as English Common Law, or just common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. 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
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
of Quebec, considered to be the primary source of private law. These laws are interpreted by judges, but this within the ambit of the codal provisions that have been enunciated by the legislators.
United States
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; indeed, 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 YorkNew York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
(owing to its Dutch heritage), have strong civil-law influences, and have enacted laws relating to obligations; e.g., the General Obligations Law and the General Business Law. The distinction between what is public and what is private in the law is often a hazy one. Many consumer protection
Consumer protection
Consumer protection laws designed to ensure fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional...
laws are of a public law nature, which limits the ability of companies to engage in transactions that fail to respect the rights of consumers. Most laws that impose criminal penalties are considered public law, as these laws are intended to protect all members of society, and this not just in the areas of interaction covered by contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
and tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
laws. The legal system of Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
follows the French legal tradition, especially the Code Napoleon, except where those traditions are effectively overridden by contrary English-based legal principles in the U.S. Constitution.
Alternate usage
Acts of CongressAct of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
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-languageGerman language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
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 RomanRoman EmpireThe Roman Empire was the post-Republican period of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean....
jurist UlpianUlpianGnaeus Domitius Annius Ulpianus , anglicized as Ulpian, was a Roman jurist of Tyrian ancestry.-Biography:The exact time and place of his birth are unknown, but the period of his literary activity was between AD 211 and 222...
, public law governs legal matters that concern the public interestPublic interestThe public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
. 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 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
States of Austria
Austria is a federal republic made up of nine states, known in German as Länder . Since Land is also the German word for a country, the term Bundesländer is often used instead to avoid ambiguity. The Constitution of Austria uses both terms...
legislation. As a practical result, the distinction is thus a matter of how the constitution is to be interpreted most accurately.