Since Roman law there has existed an understanding regarding the structure of the body of legal norms, in that legal relations between actors (so‐called legal subjects) can mainly be of two kinds. One involves equality between the players: legal subjects are free to enter into the legal relations of their choice, and they have the power to mutually influence the contents of their relation: their rights and obligations. Eventually this happens when persons enter into legal relations with each other as private parties, within their private capacities.
When Janis and Inga decide, that Janis will buy Inga’s watch, they both have the option to decide whether or not Janis will buy and Inga will sell the watch – that is to say, whether to make the contract for the sale of Inga’s watch. The same is true of the question of what the major conditions of the deal should be – price, time and place of performance, supplementing services such as whether or not Inga will provide Janis with extra batteries, etc. All these issues are decided by the parties mutually and either of the two parties can at any time say “no” to what the other party proposes. The same is true of other kinds of private relations, e.g. whether or not they will want to start dating each other and later on be married to each other. Another, quite different set of cases is one in which this equality between the parties does not exist. In those cases one of the parties is subordinated to the other. One of the parties can compel the other to enter into a legal relationship with it and dictate the terms.
For example, when Janis has to pay taxes to the tax authority of his country, he can not say “no, I do not want to pay taxes, i.e. I do not want to enter into a tax paying relationship with you”. He cannot alter the terms of the relationship with the tax authorities either: he can not say “oh, I am willing to pay taxes, but less – or at a later time – than required”. Or, if Janis suddenly were to kill someone and the police were to arrest him, then the prosecution to charge and finally the court to sentence him, he can not tell the police, the prosecutor or the court “leave me alone, I do not want to enter into a legal relationship with you”.
In both examples, the nature of the legal relationships – tax law, criminal law and criminal procedural law – is such that the legal subjects are not free to decide whether or not to enter into a legal relationship (pay taxes, be investigated, charged and sentenced) and to influence its content. It is easy to discover that in these examples the representatives of “the other side” – the tax authority officer, the policeman, the prosecutor, the judge – did not act in their private capacities like Inga when selling her watch to Janis. They acted in a capacity to represent the interests of the public rather than of the private individual. To the tax authority officer as a private person it is likely not to matter whether Janis pays taxes or not; however, to the public interest of the community (the state) whom he represents, it is important that legal subjects pay their due taxes. The policeman may personally not care if Janis killed someone – perhaps for so long as it was nobody the policeman personally knew – but to the wider society it is of primary importance that killers be caught, brought to justice and punished.
Thereby, in all these situations it is a public interest that overwrites the equality and freedom of the other party enjoyed in private relations. It is not difficult to recognize that the public interest that prevails over the autonomy of the private individual is represented by the state. In legal relations where the parties act freely, they act in their own private interests as private individuals or in another word as civilians. Thereby, this area of law is named private law or civil law. In cases where one of the parties lacks this freedom whereas the other has a compelling power to bind the other party, it is usually for the interests of the public. Thereby, this area of law is named public law. Private or civil law covers such cases as company law, where relations are between private individuals who want to associate for a common business purpose and set up a company of their own to pursue a profit‐making activity; contract law where equals are making deals between themselves; family law, where private individuals get together for the purposes of establishing a family through marriage, having children and taking care of and raising their children; copyright law, where one individual creates a piece in the literary, artistic or scientific domain for the use and enjoyment of all others in society, etc.
Public law covers such areas as public international law, constitutional law, the law of public administration, criminal law, all procedural laws such as criminal procedure and civil procedure, financial law and tax law, etc. The course Comparative administrative and constitutional law, which students have had by the time they encounter their first private law courses, was a good example of public law fields. Note that the dichotomy of private and public law does not cover the entire legal system, albeit it fairly well covers the overwhelming majority of legal relations. For example the branch of private international law (conflict of laws) deals with situations in which the subjects of the legal relationship are not the state and subordinated legal subjects such as taxpayers, criminal offenders, etc., as in public law, or private persons acting in theoretically equal positions such as in private law, but legal systems between which a choice has to be made because the case is factually connected to more than one legal system.
Courtney from Study Moose
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