“No law is stronger than is the public sentiment where it is to be enforced”
-Abraham Lincoln
INTRODUCTION:
Public law refers to the relationship between individuals and the government and dealing with the structure and operation of the government. It affects society as a whole. It is sub-divided into several branches, including constitutional, administrative and statutory law, which resolve conflicts between individuals and government. Public law was originally defined by the Roman as Res publica – i.e. ‘the public thing,’ or in the public interest and common good, and based on the differentiation between the state and the government.[1]
HISTORICAL BACKGROUND:
Under the Romans, res publica was an alternative to the traditional ruling systems, where the power was vested entirely in the hands of a single person. Rome in the 1st century B.C.E. had no written constitution, but the republic used unwritten guidelines and principles passed down mainly through precedent.
Res publica, public law, as the thing of people, was first defined by the Roman senator Cicero. Res publica usually refers to a thing that is not considered to be privately owned (res private) but which is held in common by many people. A park or garden in the city or Rome could either be “private property,” or managed by the state, in which case it would be res publica. Initially, Rome’s public law was closely related to religion, but over time this connection weakened.
After the Roman Empire, the concept of public law was adopted by monarchies and republics. In monarchies, public law represented the power of monarch, while in republics public law was a responsibility of the people.
In France, the concept of public law was represented by the idea of the state (I’Etat). The French state comprises the community of permanent interest of the nation, rather than a tool for domination. Various concepts such as the public interest derive from the French idea of public law.
In Germany, public law developed around the concept of the prince state (Furstenstaat). This personified idea of the state had a great influence on the development of public law in general. The idea of the Prince State lost its popularity in the 19th century and in the 20th century it remained only in theory, for example in the works of Hans Kelsen.
Unlike continental Europe, England did not embrace the idea of res publica. Instead, the English and Scottish legal systems are based on common law, which evolved overtime based on precedent, with lawyers looking to previous court rulings upon which to base their decisions. According to some researchers, the rule of law created by courts tends to protect private interests and is therefore is the opposite of public law. The United Kingdom has never had a written constitution. Its legal system is based on statutes such as:
Magna Carta – the liberties charter from the 13th century
The petition of Rights
The Bill of Rights
The Act of Settlement (1700)
The Parliament Acts (1911 and 1949)
With the founding fathers of the United States being familiar with the fundamentals of English law, the values of the U.S. legal system are those of common law. The United States did not embrace the idea of public law, in the sense of res publica, but it did adopt a number of public law acts. Only the States of Louisiana makes an exception, following the French tradition of public law, especially the French civil code, known as the Napoleonic Code.
U.S. public law acts include:
The constitution and the preamble
The Bill of Rights
The Civil War Amendments
Other English speaking states, such as Australia and the English- speaking provinces of Canada, also tended to adopt the common law model. Studies into the public law in continental Europe and the United states have examined various factors determining the difference in the legal systems. Some see the main reason in the fact that France, for example, Rome adopted res publica whereas the United States did not.
Usually public bodies and officials get their authority to make decisions, and to take action, from Parliament in the form of legislation. These are often called statutory powers and duties, and you can find them in:
- Primary legislation; Acts of Parliament
- Secondary legislation, or delegated legislation; Regulations, Orders and Rules. Ministers can make this legislation under the authority of an Act of Parliament.
- European Community Law; Directions and Regulations made by the legislative bodies of the European Union.
- Common law or the royal prerogative; for instance the power of the government to sign treaties or issue passports.
There are many public bodies of various kinds who take decisions every day which affect the lives of thousands of individuals. They include government ministers and departments, local authorities, the prison service, NHS Trusts, coroners’ courts and many more.
Public law controls public bodies acting in a public capacity. Sometimes it is obvious what is a public body, for example a local authority or a government department. The following are all public bodies Government ministers, departments and agencies, local authorities (including social services, housing departments and local education authorities), health
authorities, the police, prisons, courts, statutory tribunals, coroners’ courts, and regulatory and supervisory bodies. Because many functions are now carried out by other agencies, you sometimes have to consider carefully if a body is “public” or not. In general, it will be controlled by public law principles if it is authorised by an Act of Parliament or carrying out a public function. If a public body is acting in a private capacity, for instance as an employer, or in a contractual relationship with a supplier, or if it acts negligently, its actions are governed by private, not public law.
PUBLIC LAW IN CIVIL AND COMMON LAW JURISDICTION:
The Rule of Law the idea that the administration of the state should be controlled by a set of laws originated in Greek Antiquity and was revitalized in by modern Philosophers in France (Rousseau), Germany (Kant) and Austria in the 18th century. It is related to the strong position of the central government in the era of enlightened absolutism, and was inspired by the French Revolution and enlightenment. It developed hand in hand with the creation of civil Law and criminal Law.
AREAS OF PUBLIC LAW:
Public law is that area of constitutional, Administrative and Criminal law that focuses on the organization of government, and the relation between state and the citizens, the responsibilities of government officials and the relations between the sister states.
Constitutional Law:
“We have a government of limited power under the constitution, and we have got to work out our problem on the basis of law.” -William Howard Taft
Constitutional law defines the relationship between various branches of government, as well as between federal and provincial governments; it also limits the exercise of governmental power over individuals through the protection of human rights and fundamental freedoms
In modern states, constitutional law lays out the foundations of the state. Above all, it postulates the supremacy of law in the functioning of the state – 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:
Administrative law[2] deals with the actions and operations of government. It 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 government rather than the judicial or legislative branches. 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:
Criminal law deals with the crimes and their punishment. It involves the state imposing sanctions for defined crimes committed by individuals or businesses, so that society can achieve its brand of justice and a peaceable social order. This differs from civil law in that civil actions are disputes between two parties that are not of significant public concern[3].
IMPORTANCE OF PUBLIC LAW:
Public law is important because of the unequal relationship between the government and the public. The government is the only body that can make decisions on the rights of individuals and they must act within the law. A citizen can ask for judicial review if they are unhappy with a decision of an authoritative body.
Lawyers who are concerned with public law can specialise in various areas of law including constitutional/administrative law, tax law and criminal law. These areas of law are slightly different.
For example: if you worked in constitutional/administrative law, you could be working alongside the NHS, local council or other governmental bodies.
Criminal lawyers work on all aspects of a case including investigation, liaising with police and appeals. There’s usually a lot of paperwork involved with criminal law.
PRESENT SCENARIO:
In the current scenario, the study of public law in a curiously unsatisfactory condition. In so far as we can lay claim to a tradition of public law thought in this country, it is founded on the idea that we lack a distinctive system of public law[4]. This tradition is based on the idea that legality is a singular and universal concept and the state and its officers are subject to the ordinary processes of law in much the same manner as all other persons are governed by law. Public authorities, therefore, hold no special status in the legal ordering of our society and there is nothing peculiar in the application of legal method to disputes involving public bodies. Our constitution is a product of the ordinary law of the land and the position of the state and its emanations is determined by general principles of private law.
Public law deals with the legal arrangements which establish the institutions of the state and regulate the exercise of political power. It concerns some of our most basic fundamental laws.
PUBLIC LAW AND PRIVATE LAW:
In German-language legal literature, there is an extensive discussion on the precise nature of the distinction between public law and private law. Several theories have evolved, which are neither exhaustive, nor are they mutually exclusive or separate from each other. There are three theories namely[5]:
Interest Theory: It has been developed by the Roman jurist Ulpian: “Publicum ius est, quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem. i.e. Public law is that, which concerns Roman state, private law is concerned with the interests of citizens. The weak point of this theory is that many issues of private law also affect the public interest. Also, what exactly is this public interest?
Subjection Theory: It 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, such as employment law. Also, the modern state knows relationships in which it appears as equal to a person.
Subject Theory: It is concerned with the position of the subject of law in 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, all depends whether the public authority is acting as a public or a private entity, say when ordering office supplies. This latest theory considers public law to be a special instance.
There are areas of law, which 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), other parts like public law (the activities of an employment inspectorate when investigating workplace safety).
The distinction between public and private law might seem to be a purely academic debate, but it also affects legal practice. It has bearing on the delineation between competences of different courts and administrative bodies. Under Austrian constitution, for example, private law is among the exclusive competences of federal legislation, whereas public law is partly a matter of state legislation.
Most people are affected by public law decisions at some time in their lives. There are many procedures by which individuals can challenge the legality of decisions made by public bodies. They include:
- Judicial review: court proceedings in which a judge is asked to review the lawfulness of the decision which is being challenged. Set aside the decision complained of make an order stopping the public body from doing something unlawful. Award damages in very limited circumstances[6].
- Complaints procedures such as the social service complaints procedure; and
- Ombudsman schemes such as the Local Government Ombudsman, and the Parliamentary Commissioner for Administration.
These remedies are discretionary and the court might not do anything if it does not think it’s fair. Complaints and ombudsman schemes have different remedies available, and you should check the individual scheme for details. They can usually investigate complaints and get an apology, or get the public body concerned to change its procedures. They can often obtain financial compensation.
CONCLUSION:
Public law refers to the relationship between individuals and the government and dealing with the structure and operation of the government. It is the combination of Constitutional Administration and Criminal law for providing justice to the individual. Some areas of law do not seem to fit into either public or private law. For example, employment law falls into both – the employment contract is a private law matter, whereas health and safety in the workplace is a public law issue. Public law is for the betterment of society at large. Equal justice is a dream we much make it a reality.
“The first duty of society is justice.”
– Alexander Hamilton
[1] Elizabeth A. Martin, Oxford Dictionary of Law (7th ed.). Oxford: Oxford University Press. ISBN 0198607563
[2] S.P. sathe, Administrative law, (lexis nexis publishers), (7th ed. 2004).
[3] K.D. gaur, commentary of Indian Penal Code, (Universal law publishing co. Pvt. Ltd.). (2nd ed. 2013).
[4] Martin Loughlin, public law and political theory page 1, (clarendon press-oxford) (1992).
[5] Peter Cane, Public law in the concept of law, oxford university press, 2013.
[6] Christopher Forsyth and Mark Elliott, Effective Judicial Review: A Cornerstone of Good Governance (Oxford University Press, 2010).
Author: Aditya Sharma & Aman Sharma, Students, Damodaram Sanjivayya National Law University.
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