Public And Private Law: A Private Lawyer's Response
| Date | 01 September 1983 |
| Author | Geoffrey Samuel |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02534.x |
| Published date | 01 September 1983 |
PUBLIC
AND
PRIVATE
LAW:
A
PRIVATE
LAWYER’S RESPONSE
IN
1980 there appeared in the
Modem
Law
Review
a most stimulating
article by Carol Harlow about the distinction between public and private
law.’ Harlow argued that the distinction, in the sense of an autonomous
set of rules, was wholly incompatible with the English tradition and
would not contribute
in
any meaningful way
to
the solution of admini-
strative law problems. Furthermore she attempted to show that the
distinction was
‘‘
old fashioned and undesirable in principle.”
It must be stressed at the outset that the article made many points
which the present writer would not wish to dispute. In particular, the
reservations expressed
in
regard to the creation of special Admini-
strative Courts, and the concern shown in respect of offence against
basic principles such as
“
Equality Before the Law,” are observations
that needed
to
be reaffirmed in the light of various comments made by
judges
in
some
of the recent administrative law decisions. However,
inasmuch
as
the article suggests that the distinction between public and
private law is irrelevant, devoid of intrinsic merit and out-moded some
(jurisprudential) notes
of
caution must be entered. For, as will be
argued, the distinction
is
really very fundamental to Western legal
t
hought-as fundamental, and as useful, as the distinction between
property and obligations or contract and tort.
The present essay
will
look
at the distinction between public and
private law from four main viewpoints. The distinction will be examined
first of all from a general and historical position
(I);
an attempt
will
then be made
to
see how the distinction operates, or fails to operate, at
the level
of
rights-in particular within the more specific realms of tort
and contract
(11).
The division will next be considered from the position
of
remedies, though this will involve a
look
at the relationship between
rights and actions as well
(Ill);
and finally the essay
will
consider some
decisions that have utilised the publiclprivate dichotomy since the
publications
of
Harlow’s article
(IV).
By way
of
conclusion
(V)
this
article will summarise the arguments that have been used to support
the thesis that the distinction between public and private law
is
a
useful
and valuable distinction for the common lawyer.
I
The distinction between public and private law, as with most of the
other great legal divisions, has its roots
in
the jurisprudential model
established by the
roman^.^
This model conceived of law as being
a
series
of
relationships-or,
to
use Maine’s metaphor, chains4-existing
*
“‘Public
’and
‘Private
’Law:
Definition Without Distinction ”(1980)43 M.L.R.241.
See
p.
242.
Digest
1.1.1.2
(Ulpian);
Justinian Inst. 1.1.4.
*
Disscrtnriorrs
mi
Eorly
Law
iiml
Clisfom
(1883),
p.
391.
558
Sept. 19831
PUBLIC
AND
PRIVATE
LAW
559
between person and person, person and thing and person and the
state.6 The first relationship gave rise to actions
in personam
and the
second to actions
in
rem
;
these two sub-categories were then amalga-
mated under the general heading
"
Private Law
"
and distinguished
from the third relationship, that of
"
Public Law."
O
However, having
set the basic pattern, the Roman lawyers themselves were content to
concentrate, in their writings at least, on private law,' leaving the form
of the relationship between individual and the state to be filled in by
later legal philosophers-in particular, those who were nurtured
in
the
policies
of
liberalism and who thus desired to keep separate, and limit,
the role of the statea8
Of all the modern civil law systems it is France that has made the
most profound use of the division between public and private law.
For
''
Les
fonctions judiciaires sont distinctes et demeureront toujours
skpardes des fonctions administratives: les juges ne pourront
d
peine de fot$aiture troubler de quelque manikre que
ce
soit les
opdrations des corps administratgs."e
Accordingly one finds in France two systems of courts paralleling in
some ways the common ]awlequity division of pre-1875 England; and
so
when defining the category
of
public law from the modern civilian
viewpoint it is, as Harlow points
out,
necessary to think
in
terms of a
"
body of wholly autonomous rules
"
which
"
entail a separate admini-
strative jurisdiction."
lo
Today, however, this distinction in France
seems to rest less
on
the original legal-and later political-theories
but more on
the
established procedural division" and this has resulted
in a movement urging modification
or
abolition: for, it is argued, there
is great difficulty in maintaining the distinction in areas such as contract
and tort.12 Furthermore it
is
also possible to add some political points
to
this movement for abolition.
Is
it
really desirable
in
a democratic
society that the state should somehow be above private law; for is
it
not
"
one of the pillars of freedom
"
that everybody, from cabinet minister
to humblest constituent, is
"
equal before the law?" And does not the
Maine,
supra;
Jolowicz,
Roman Foundations
of
Modern Law 11957),
Chap.
VIII;
Buckland,
A
Text-Book
of
Ronran
Law
(3rd
ed.), pp.
56-59;
Kahn-Fraund,
"
Introduction
to
Karl Renner,"
The
Insrlrurions
of
Prlvale Law and Their Soclal Functions (1949),
p.
18.
6
Jolowicz,
supra,
Chap.
VI
and
Lectures ortJurlsprudencc(1963),
Chap.
XXI.
Jolowicz,
Leclures,
p.
320.
Chewier
119521 Archives de
la
Philosophie
du
Droll
5,
50
et
se9.
See also: David,
Drolt Francals (1960),
Tome I, pp.
85-93
and
Les Grands Syslhies de
Droll
Contemporains
(7th
ed.,
197%
p.
86;
Waline,
Droll
Adnrinistratlf(l963),
Chap.
11;
Kahn-Freund, Lkvy
&
Rudden,
A Source-Book on French
Law
(2nd
ed.,
1979),
Chap.
2,
section
I
;
Merryman,
The CivilLaw Tradltion(1969),
pp.
99-102;
Szladits,
"
The CivilLaw System,"
Internatlorrat
Encyclopedlaof Cornparalive Law,
Vol.
11,
Chap.
2,
Pt.
11,
paras.
27-30.
Loi des 16-24
aodt,
1790,
art.
13.
10
See p.
241
quoting Vedel,
Drolt
A~lminls1ratlf(5th
ed.).
l1
Kahn-Freund, L6vy
&
Rudden,
supra,
p.
228,
note
8.
l2
Harlow at p.
255.
l3
Salmon
L.
J.
in
Broome
v.
Camel1
&
Co.
[I9711
2
All
E.R.
187, 204
quoted in,
Weir,
"
The Common Law System,"
International Encyclopedh
of
Coniparatlve Law,
Vol.
11,
Chap
2,
Pt.
111,
para.
120.
The present writer would like
to
acknowledge
his
indebtedness
to
this essay by Weir; and
to
thank
Mr.
Weir himself for kindly supplying
offprints of his
Encyclopedia
pieces.
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