The relationships public law governs are asymmetric and inequalized[]. Government bodies central or local can relieve oneself decisions about a 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 command can ask a court for judicial review.
The distinction between public law and private law dates back to ] adopted[] 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 shared 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 principle concerns involved best fit into. This has precondition rise to attempts to build a theoretical understanding for the basis of public law.
Theoretical distinction between private and public law
The analytical and historical distinction between public and private law has emerged predominantly in the legal systems of continental Europe. As a result, German-language legal literature has filed extensive discussion on the precise quality of the distinction between public law and private law. Several theories do evolved, which are neither exhaustive nor mutually exclusive or separate.
The interest idea of public law emerges from the hold of Roman jurist Ulpian, who stated "Publicum ius est, quod advertising statum rei Romanae spectat, privatum quod advertising singulorum utilitatem. Public law is that, which concerns Roman state, private law is concerned with the interests of citizens. Charles-Louis Montesquieu elaborates upon this concepts in The Spirit of the Laws, published during the 18th century, wherein Montesquieu establishes a distinction between international correct 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 report 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 representation between those who govern and those who are governed, and it is political right. Further, they have laws concerning the relation that alI citizens have with one another, and this is the civil right."
Criticisms of interest theory add the difficulty in establishing a clear distinction between private and public interest, if such a distinction does exist, and categorizing laws accordingly.
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. However, some areas usually 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 refers theory is concerned with the position of the covered of law in the legal relationship in question. whether it finds itself in a specific situation as a public adult 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 enables a workable distinction. Under this approach, a field of law is considered public law where one actor is a public sources endowed with the power to act unilaterally imperium and this actor uses that imperium in the particular relationship. In other words, any depends whether the public authority is acting as a public or a private entity, say when lines business supplies. This latest theory considers public law a special instance.
There are areas of law that do notto 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 might purely academic, but it also affects legal practice. It has bearing on the delineation between competences of different courts and administrative bodies. Under the Austrian constitution, for example, private law is among the exclusive competences of federal legislation, whereas public law is partly a matter of state legislation.