Public law (lat.

ius publicum) is that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to the society.[1] Public law comprises constitutional law, administrative law, tax law and criminal law,[1] as well as all procedural law. In public law, mandatory rules (not optional) prevail. Laws concerning relationships between individuals belong to private law. The relationships public law governs are asymmetric and unequal government bodies (central or local) can make decisions about the rights of individuals. 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 authority can ask a court for judicial review. Rights, too, can be divided into private rights and public rights. A paragon of a public right is the right to welfare benefits only a natural person can claim such payments, and they are awarded through an administrative decision out of the government budget. The distinction between public law and private law dates back to Roman law. It has been picked up in the countries of civil law tradition at the beginning of the 19th century, but since then spread to common law countries, too. The borderline between public law and private law is not always clear in particular cases, giving rise to attempts of theoretical understanding of its basis.

Contents

1 Public law in civil law and common law jurisdictions 2 Areas of public law o 2.1 Constitutional law o 2.2 Administrative law o 2.3 Criminal law 3 Theoretical distinction between private and public law 4 References

Public law in civil law and common law jurisdictions

The idea that the administration of the state should be controlled by a set of laws originated in France, Germany 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 codes and criminal codes. As late as at the beginning of the 20th century, United Kingdom had, it could be said, no public law. Not only was this theoretical category absent, there was no body of law governing the

administration of public affairs. Reforms at the period of the two world wars and especially on UK's entry into the European Economic Community were such, that by the 1980s such a branch of law has been established.[2]

Areas of public law

Constitutional law
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 amendmends 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 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 (if they are different in that particular jurisdiction). 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 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.

Theoretical distinction between private and public 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.

The interest theory has been developed by the Roman jurist Ulpian: "Publicum ius est, quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem. (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? 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. 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. The subject theory 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 memership 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 and subset of private law. 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 compentences of federal legislation, whereas public law is partly a matter of state legislation.

Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a State, namely, the executive, the legislature, and the judiciary. Not all Nation States have codified Constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law or international rules and norms.

Contents

1 State and legal structure 2 Human rights 3 Legislative procedure 4 Study of constitutional law 5 The Rule of Law 6 The Separation of Powers 7 Constitutions by region 8 See also 9 References

State and legal structure

Constitutional laws may often be considered second order rulemaking or rules about making rules to exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement.

Human rights
Main articles: Human rights and Human rights law Human rights or civil liberties form a crucial part of a country's constitution and govern the rights of the individual against the state. Most jurisdictions, like the United States and France, have a codified constitution, with a bill of rights. A recent example is the Charter of Fundamental Rights of the European Union which was intended to be included in the Treaty establishing a Constitution for Europe, that failed to be ratified. Perhaps the most important example is the Universal Declaration of Human Rights under the UN Charter. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide to its citizens but many do include its governments. Some countries like the United Kingdom have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v. Carrington[1] is a constitutional principle deriving from the common law. John Entick's house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the Earl of Halifax was valid authority, even though there was no statutory provision or court order for it. The court, led by Lord Camden stated that, "The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion

of private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."[2] Inspired by John Locke,[3] the fundamental constitutional principle is that the individual can do anything but that which is forbidden by law, while the state may do nothing but that which is authorized by law. The commonwealth and the civil law jurisdictions do not share the same constitutional law underpinnings.

Legislative procedure
Main article: Parliamentary procedure Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bicameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election.

Study of constitutional law Constitutional law is a major focus of legal studies and research. For example, most law students in the United States are required to take a class in Constitutional Law during their first year, and several law journals are devoted to the discussion of constitutional issues. The Rule of Law
The doctrine of the rule of law dictates that government must be conducted according to law. Dicey identified three essential elements of the British Constitution which were indicative of the rule of law: 1. Absence of arbitrary power; 2. Equality before the law; 3. The Constitution is a result of the ordinary law of the land.

The Separation of Powers

The Separation of Powers is often regarded as a second limb functioning alongside the Rule of Law to curb the powers of the Government. In most modern nation states, power is divided and vested into three branches of government: The Executive, the Legislature and the Judiciary. The first and the second are harmonized in traditional Westminster forms of government.