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ynorsk norsk bokmål occitan polski português română русский scots simple english slovenčina slovenščina српски srpski svenska தமிழ் ไทย türkçe українська vèneto tiếng việt yorùbá 粵語 中文 edit links article talk english read edit view history tools tools move to sidebar hide actions read edit view history general what links here related changes upload file permanent link page information cite this page get shortened url switch to legacy parser print export download as pdf printable version in other projects wikimedia commons wikidata item appearance move to sidebar hide from wikipedia the free encyclopedia law governing government actions this article is about the area of law for a public law in the united states see act of congress for the journal see public law journal for all other uses see public law disambiguation this article includes a list of general references but lacks sufficient corresponding inline citations please help improve this article by introducing more precise citations april 2014 learn how and when to remove this message public law is the part of law that governs relations and affairs between legal persons and a government 1 between different institutions within a state between different branches of governments 2 as well as relationships between persons that are of direct concern to society public law comprises constitutional law administrative law tax law and criminal law 1 as well as all procedural law laws concerning relationships between individuals belong to private 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 the rule 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 for judicial review the distinction between public law and private law dates back to roman law where the roman jurist ulpian 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 the civil law tradition and of those that adhere to common 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 a theoretical understanding for the basis of public law for example an individual entering into a contract with the government for a service would usually fall within private law even if the state is involved history of public law edit the distinction between public and private law was first made by roman jurist ulpian who argues in the institutes in a passage preserved by justinian in the digest that public 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 and offices 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 focused largely on areas of private law it was however 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 6 drawing a line between public and private law largely fell out of favor in the ensuing millennium 7 though as ernst kantorowicz notes medieval jurists saw a concern with the roman conception of the res publica inherent in the legal fiction of the king s two bodies 8 however legal philosophers during this period were largely theologians who operated within the realm of canon law and were therefore instead concerned with distinctions between divine law natural law and human law 9 the public private divide in law would not return until the 17th and 18th centuries through the emergence of the nation state and new theories of sovereignty notions of a distinctly public realm began to crystallize however the claims made by monarchs and later parliaments to unrestrained power to make law spurred attempts to establish a distinctly private sphere that would be free from encroaching state power 10 public law in civil law and common law jurisdictions edit see also magna carta traditionally the division between public and private law has been framed in the context of the legal systems of continental europe whose laws all fall within the tradition of civil 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 the state must prohibit 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 considered general 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 the constitutionalization of private law as well as the development of administrative law and various functional fields of law including labor law medical law and consumer 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 acknowledging that few if any areas of the law are free from potential state intervention 14 in italy for example the development of public law was considered a project of state building following the ideas of vittorio 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 of constitutional law administrative law and criminal law areas of public law edit constitutional law edit main article constitutional law in modern states constitutional law lays out the foundations of the state above all it postulates the supremacy of law in the state s functioning the rule 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 are the executive the legislature and the judiciary and thirdly in describing what are the basic human rights which must be protected for every person and what further civil and political rights citizens have it sets the fundamental borders to what any 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 the constitution of the united kingdom is an unwritten one administrative law edit main article administrative law 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 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 edit main article criminal law criminal law is the body of law that relates to crime it prescribes conduct perceived as threatening harmful or otherwise endangering to the property health safety and welfare of people including oneself most criminal law is established by statute which is to say that the laws are enacted by a legislature criminal law includes the punishment and rehabilitation of people who violate such laws tax law edit main article tax law tax law first became an area of public law in the 17th century as a consequence of emerging theories of sovereignty 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 theoretical distinction between private and public law edit the analytical and historical distinction between public and private law has emerged predominantly in the legal systems of continental 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 of roman jurist ulpian 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 in the 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 the right 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 the political right further they have laws concerning the relation that all citizens have with one another and this is the civil right 20 criticisms of interest theory include the difficulty of establishing a clear distinction between private and public interest if such a distinction exists and of categorizing laws accordingly the subjection theory explains 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 in which the parties meet on a level playing field however some areas commonly considered private law also imply subordination such as employment 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 see carpenter v united states for example the subject theory concerns the position of the subject of law within 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 that imperium in the particular relationship in other words it all depends on whether the public authority is acting as a public or private entity for example 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 as employment 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 bears on the delineation of the competencies of different courts and administrative bodies under the austrian constitution for example private law is among the exclusive competencies of federal legislation whereas public law is partly a matter of state legislation see also edit social law notes edit 1 2 elizabeth a martin 2003 oxford dictionary of law 7th ed oxford oxford university press isbn 0198607563 1 2 forcese craig dodek adam bryant philip carver peter haigh richard liston mary macintosh constance 2015 public law cases commentary and analysis third ed toronto on emond montgomery publishing ltd p 4 isbn 978 1 55239 664 3 cherednychenko olha april 18 2007 fundamental rights contract law and protection of the weaker party utrecht the netherlands utrecht university institute for legal studies p 21 hdl 1874 20945 justinian watson alan 1985 the digest of justinian philadelphia pa university of pennsylvania press p 1 isbn 978 0 8122 2033 9 cherednychenko p 21 22 sfn error no target citerefcherednychenko help cohen morris 1927 property and sovereignty cornell law review 13 1 8 retrieved august 7 2020 1 2 3 cherednychenko p 22 sfn error no target citerefcherednychenko help kantorowicz ernst may 10 2016 the king s two bodies a study in medieval theology princeton nj princeton university press isbn 978 0 691 16923 1 aquinas thomas 2000 treatise on law indianapolis in hackett publishing company isbn 978 0 87220 548 2 horwitz morton 1982 the history of the public private distinction pdf university of pennsylvania law review 130 6 1423 1428 doi 10 2307 3311976 jstor 3311976 s2cid 51854776 retrieved june 28 2020 murkens jo eric khushal july 15 2009 the quest for constitutionalism in uk public law discourse oxford journal of legal studies 29 3 427 455 doi 10 1093 ojls gqp020 retrieved june 29 2020 forcese et al sfn error no target citerefforcese_et_al help cherednychenko p 22 23 sfn error no target citerefcherednychenko help cherednychenko p 23 24 sfn error no target citerefcherednychenko help casini lorenzo cassese sabino napolitano giulio april 2011 the new italian public law scholarship international journal of constitutional law 9 2 302 303 doi 10 1093 icon mor049 retrieved june 29 2020 bell john boyron sophie whittaker sophie 2008 principles of french law oxford uk oxford university press pp 141 240 isbn 978019...