Private Law and Public Law

F.J.M. Feldbrugge Emeritus Professor of East European Law University of Leiden, Faculty of Law We talk about private law and public law as if everybody knew what was meant when these words are being used about law. This probably holds true for lawyers and even law students, but not for the general population. Most people will have some sort of idea about labor law, or bankruptcy law, but the distinction between private law and public law, considered as most fundamental by most lawyers, means next to nothing to the man or woman in the street. Is the problem perhaps avoidable, do we actually need the public/ private law distinction? If we do not, the matter could be left to those inclined to such intellectual pastimes. Unfortunately, the distinction between public and private law entails practical consequences, at least in continental legal systems, so it can- not be referred to the convenient and already very large file of problems that do not need a solution. To start at the simplest and most practical level: our law happens to be divided into two boxes; some of it has been put into the box marked “public law”, and the rest into the box marked “private law”, and the contents of these two boxes are treated somewhat differently. For the law student and the humble practitioner this may be enough to know. But the more discerning lawyer would of course like to know why some law goes into one box and some into the other. Two thousand years of jurisprudence—because the distinction goes back at least as far as the Romans—have produced a vast body of literature containing answers to this question. The earliest solution was offered by the Roman jurist Ulpian who stated: “Public law is what regards the welfare of the Roman state, private law what regards the interests of individual persons; because some things are of public, others of private utility.”1 Although the distinction was never quite forgotten in the following centuries—Grotius referred to it—the legal regimes of medieval Europe certainly tended towards blurring it. It was only when the modern state, as we know it, began to take shape in the nineteenth century that the debate about private against public in law was revived. This, incidentally, is an indication of where the nucleus of the problem lies.

1 D. I.1.2. Publicum ius est, quod ad statum rei romanae spectat, privatum quod ad singulorum utilitatem; sunt enim quaedam publice utilia, quaedam privatim. The passage was included in the introductory chapter of Justinian’s Institutions, which may explain why it was so well known. William B. Simons, ed. Private and Civil Law in the Russian Federation 261-269 © Koninklijke Brill NV, Leiden, 2009 262 F.J.M. Feldbrugge

Rudolf von Jhering, perhaps the greatest legal mind of the nineteenth century, had argued the central importance of the concept of interests in jurisprudence, and from that point on, remembering Ulpian’s position, additional answers could be formulated.2 Looking at the subjects of the interests, it has generally been observed that in public law at least one of the interested parties would be public authority in one form or another. Private law, on the other hand, concerned the legal relationships between private parties. (Of course public authority may also appear as a private party, e.g., when it participates on the same footing as an individual citizen in a consumer contract.) The presence of public authority (in one form or another) in public law relationships entails several other consequences. One is the inequality inherent in such relationships. Not only is the public party usually more powerful de facto, it is also either the creator of legal norms, or closely involved in the creation and enforcement of these norms. Dealing with a public party is therefore like playing chess against a player who may change the rules of the game. For this reason, the public party must be bound to stricter rules than his private counterpart. The exercise of a right or power granted by public law is generally considered to be limited by the purpose for which the right or power was granted. A private party may not abuse its rights, but is otherwise not questioned about the purpose for which it uses its right. A public party, even where it has been granted discretionary powers, may not exercise these powers as it sees fit, but should exercise discretion in order to optimally realize the objective for which the powers were granted. The private/public dichotomy is closely related to, but not identical with another distinction: between so-called dispositive and mandatory law. All public law is mandatory, in the sense that free discretionary use—or non-use—of public powers cannot be allowed. The bulk of private law may be compared to a vast warehouse of legal instruments for the use of private citizens; they are free, however, to manufacture their own tools. Only in specific types of cases, usually in order to protect weak parties, public power intervenes and orders the citizen to use the tools from the warehouse. The enforcement, in other words the procedural aspects, of private and public law may also differ in accordance with the inequalities out- lined before. As a rule, the enforcement of private law depends on the interested private parties; they decide freely whether and how they want to enforce their rights. The public party in a public law relationship is normally obliged to enforce its right. Additionally, in many jurisdictions,

2 R. von Jhering, Der Zweck im Recht, Vol.1, Leipzig 1877, Vol.2, Leipzig 1883.