Question

1. The generally accepted way of dividing and classifying the law in the civil-law world is quite different from that to which common-law lawyers are accustomed. The fundamental division in modern civil-law systems is that between “public” and “private” law. To civil lawyers, this distinction is basic, necessary, and self-evident. Despite the universal recognition of this distinction in the civil-law world, there is no agreement among civil-law lawyers on its theoretical basis (other than perhaps its historical basis—e.g., the Corpus Juris Civilis), and no uniformity among countries as to the scope of public and private law. As exemplified in the seventeenth- and eighteenth-century civil codes, private law has been described as “that area of the law in which the sole function of government was the recognition and enforcement of private rights.” Thus, today private law includes at least the civil and commercial codes. The proper classification of other areas is often disputed. Civil procedure, for example, is treated as public in some countries and as private in others. Labor law, social security, and various topics of government regulation are often referred to as “mixed” public and private areas. Public law, by contrast, focuses on “the effectuation of the public interest by state action.” Today public law includes at least what a common-law attorney would recognize as constitutional law, administrative law, and criminal law.

2. While public law has its roots in Roman law, it remained largely undeveloped until modern times, when the centralized state and its administrative apparatus began to flourish on the European continent following the Treaty of Westphalia in 1648. As administrative law developed in the nineteenth century, it became obvious to civil-law lawyers that the usual private-law rules that apply to disputes between individuals do not lend themselves easily to resolving disputes involving the state. Moreover, a trend emerged toward some form of review of the legality of state administrative action.

3. Several distinctive characteristics distinguish public from private law. Most important, public law generally is not part of comprehensive civil codes. Instead, public law consists of various statutes, supplemented liberally by judge-made norms, that regulate the organization and function of public authorities and the relationship between public agencies and individual citizens. Public law tends to be more fluid than the civil codes since it may change rapidly in response to political forces.

4. The public–private distinction dictates many of the basic features of legal practice in civil-law countries. The structure and jurisdiction of the courts in civil-law countries roughly correspond to private- and public-law matters, with private-law issues the province of the “ordinary” courts, and public-law matters addressed in separate “administrative” courts. Legal education and law practice likewise remain divided mainly along public–private lines. A teacher of the private law of property, for example, would be unlikely to attempt to teach about property taxation, land-use regulation, or the constitutional protection of property rights; those topics would be left to a specialist in public law.

5. Nonetheless, in the twentieth century several factors have led to a rethinking of the strict division between public and private law. These factors include the expanding influence of the common law, the increasing role of government in legal areas traditionally treated as private, a general trend toward written constitutions and acceptance of judicial review, the increased influence of organizations (e.g., trade unions), and the growth of legal fields that defy categorization as public or private.

Read the text about the public law–private (civil) law distinction again. Are the following sentences true or false?

1. The separation of the law into public and private spheres is of little practical importance in common-law countries .

2. There is a generally accepted theoretical basis for the public law–private law dichotomy.

3. The civil and commercial codes are included into private law by all civil-law countries.

4. A clear border line is drawn between public and private areas nowadays.

5. Public law had been developing intensively till the seventeenth century.

6. The nineteenth century gave rise to the elaboration of administrative law.

7. Public law is seldom incorporated into civil codes.

8. Civil codes are often subject to changes in response to political forces.

9. In civil-law countries the system of courts and legal education reflects the public–private distinction.

10. Usually lawyers in civil-law countries are specialists with broad qualifications able to deal with both public- and private-law matters.

11. Governments tend to play more and more significant part it areas of law that used to be thought of as private.