Private Law Beyond the State? Europeanization, Globalization, Privatization (original) (raw)
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Legal Studies, 1998
To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law. In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.
Public Law, Private Law, and Legal Science
American Journal of Comparative Law, 2008
This essay explores the historical and conceptual connections between private law and nineteenth century classical legal science from the perspective of German, American, and Jewish law. In each context, legal science flourished when scholars examined the confined doctrines traditional to private law, but fell apart when applied to public, administrative and regulatory law. Moving to the contemporary context, while traditional private law scholarship retains a prominent position in German law and academia, American law has increasingly shifted its focus from the language of substantive private law to a legal regime centered on public and procedural law. The essay concludes by raising skepticism over recent calls to reinvigorate the Euro-American dialogue by focusing on traditional private law and scholarship.
Private Interest and Public Interest in European Legal Tradition
2015
The division of law into "public" and "private" was introduced by Roman lawyers, with the criterium divsionis being based on the interest protected with each branch of the legal system. As Ulpian famously formulated: Publicum ius est quod ad statum rei Romanae spectat, ius privatum est quod ad singulorum utilitatem. 1 Public law is that which respects the establishment of the Roman commonwealth, private that which respects individuals' interests, some matters being of public and others of private interests. 2 * All views presented in this chapter are exclusively those of the Author and should not be attributed to the European Union or any of its institutions, bodies or agencies. 1 Dig. 1.1.1.2-Ulpian 1 inst. 2 English translation: Alan Watson, 1 The Digest of Justinian (1998). This division has become an axiom of the Civilian Tradition See e.g. Tomasz Giaro, Od redaktora in Interes publiczny a interes prywatny w prawie 8-9 (2012).
Századvég Edition, 2021
The autonomy of the dogmatic order of private law can be terminated to different degrees by the penetration of fundamental rights, and thus private law can only function together with an overarching system of constitutional considerations. Constitutional adjudication in some countries has retained that fundamental rights, according to their historical origin, can only function for the protection of private parties against the state and that relations between private parties should be left to traditional dogmatics and the regulation of private law. In many countries, however, they have gone beyond this, and fundamental rights have also penetrated the norms of private law which govern relationships between private parties. The German constitutional judges were pioneers in this area and they influenced the constitutional judges of other countries. They developed a distinction between direct and indirect influence of fundamental rights and rejected direct influence, which would affect private law too much, and consequently decided in favour of indirect influence. This means that the priority of the norms of private law remains, and the relevant fundamental rights must be included in their interpretation. However, the reasonings that were used went further. In one case, they declared that fundamental rights are cultural values that must be passed on throughout the legal system. In another case, they declared the state’s duty to protect them was justified in order to help the intrusion of fundamental rights. In this way, ordinary courts should always correctly assess whether the protection area of relevant fundamental rights is not damaged by the regulations of simple law and whether the conflict between them can be judged as proportionate for the protection of fundamental rights. Due to these shifts, the only indirect influence of basic rights became increasingly illusory, and, in fact, a direct effect was brought about.
Private law underpinnings of public
Well-functioning domestic public debt securities markets are critical to any country’s economic development and financial stability, and they are therefore considered to be a public good. The purpose of this article is to underscore the importance of sound private law underpinnings for the orderly functioning of public debt markets. It advocates for a more holistic approach to public debt legal reforms that go beyond the current focus on strengthening public law legal frameworks. While the main focus of this article is on the domestic market for debt securities issued by sovereigns, as represented by their central or federal governments, the conclusions may apply broadly to sovereign debt securities issued under foreign law as well as well as to debt securities issued by sub-national governments.