Public law

Lore & Background

The distinction between public law and private law dates back to Roman law, where the Roman jurist Ulpian first noted it. Ulpian argued in the Institutes that 'public law is that which respects the establishment of the Roman commonwealth, private that which respects individuals' interests.' Roman Law conceived of law as relationships between persons and persons, persons and things, and persons and the State, with public law consisting of the latter. However, Roman lawyers devoted little attention to this area, focusing largely on private law. The distinction was 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.

Drawing a line between public and private law largely fell out of favor in the ensuing millennium. Medieval jurists saw a concern with the Roman conception of the res publica inherent in the legal fiction of the king's two bodies, but legal philosophers were largely theologians operating within Canon Law, concerned with distinctions between divine, natural, and human law. The public/private divide returned in the 17th and 18th centuries with the emergence of the nation-state and new theories of sovereignty.

Claims by monarchs and parliaments to unrestrained power spurred attempts to establish a distinctly private sphere free from encroaching State power. For many years, public law occupied a marginal position in continental European law, with private law considered general law and public law consisting of exceptions. It was not until the second half of the twentieth century that public law began to play a prominent role through the constitutionalization of private law and the development of administrative law and functional fields such as labor law, medical law, and consumer law. This blurred the distinction but elevated public law from its once-marginal state.

Reader's Guide

Public law is significant as a foundational category of legal systems, distinguishing the asymmetric relationship between the state and individuals from private relationships. Its roots in Roman law, particularly through Ulpian's work, established a framework that later influenced both civil-law and common-law traditions. The distinction is largely functional rather than factual, classifying laws according to which domain activities and participants best fit. The borderline between public and private law is not always clear, as seen when an individual contracting with the government for a service usually falls within private law despite state involvement.

Public law's legacy includes the development of constitutional law, which lays out the foundations of the state and postulates the rule of law; administrative law, which regulates bureaucratic procedures and defines powers of agencies; criminal law, which relates to crime and punishment; and tax law, which became an area of public law in the 17th century. The theoretical distinction has been extensively discussed in German-language legal literature, producing theories such as the interest theory from Ulpian, elaborated by Montesquieu in The Spirit of the Laws. Public law's elevation in the twentieth century acknowledged that few areas of law are free from potential state intervention, making it a central element of modern governance.