The changing face of private law: doctrinal categories and the regulatory state

Legal Studies ◽  
1982 ◽  
Vol 2 (3) ◽  
pp. 257-268 ◽  
Author(s):  
N. E. Simmonds
Keyword(s):  
Legal System ◽  
Public Law ◽  
Private Law ◽  
Regulatory State ◽  
Public And Private ◽  
University Curricula

Legal scholars over the last 25 years or so have experienced a growing sense of dissatisfaction with the traditional classifications that segment university curricula and legal textbooks. Contract and tort, for instance, are felt to be not so different after all. The intimate historical links between the tort of negligence and the action of assumpsit may be seen as reflecting the realitics more truly than the later doctrinal separation of voluntarily and involuntarily incurred obligations. The growing impact of public law on the exercise of privatc rights, and the interweaving of public and private law that runs through an evcn greater portion of the legal system, cause still more fundamental doubts.

scholarly journals Interpretation in modern legal literature on the functioning of private and public law

2021 ◽  
pp. 258-263
Author(s):  
N. V. Teremtsova
Keyword(s):  
General Theory ◽  
Legal System ◽  
Public Law ◽  
Fundamental Rights ◽  
Traditional Theory ◽  
Private Law ◽  
Public And Private ◽  
Stage Of Development ◽  
Private And Public ◽  
Theory Of Law

The article is concerned with problem of interpretation the public and private law. At the beginning of the article the author describes the imperfection of approaches to differentiation.The article examines the topical issue of general theory of law, which contains a delicate phenomenon that has existed for a long time, but during all this time has not developed a common understanding of its basic parameters, and therefore remain controversial theoretical foundations for construction and operation. Its existence raises a number of very important questions about properties for the legal community. At the moment it is not possible to assert the presence of the same understanding of the essence of separation of the right to private and public. Different scientific schools actually offer his vision within the Ukrainian legal system and traditional doctrine. It would be wise to mention here at the present stage of development of legal matter, it is necessary to make some adjustments to the traditional theory of law, as well as some provisions of the law regarding the division of law into private and public. In brief each new field studied by scientists is a legal phenomenon, but when applying general theoretical conclusions to it, it is necessary to take into account the specifics of the object under study in terms of the general theory of law. To conclude a pattern that allows to establish two objectively independent branches of law, linking them to the manifestations of public and private foundations, and to represent the spread of rights to private and public, as it is not just a classification, but conceptual, concerning the most fundamental rights of each place and role in human life, its defined values, continues in the theory of law today. Keywords: public law, private law, legal system, legal science, branches of law. References

scholarly journals Historical roots and current state of the “public - private law” issue in French legal doctrine

2021 ◽  
Vol 25 (3) ◽  
pp. 562-585
Author(s):  
Alexey P. Semitko
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Public Law ◽  
Social Market Economy ◽  
Private Law ◽  
Legal Doctrine ◽  
Public And Private ◽  
Law System ◽  
Private And Public ◽  
Social Market

The Soviet legal system did not know the division of law into private and public, because communist ideology did not recognize anything private. The end of communist experiment and transition to legal state, social market economy and respect for human rights naturally led to the need to revive private law and to further develop it; therefore in Russian jurisprudence the issue of dividing the law into private and public has become relevant. The subject is the French legal doctrine on this issue; the study is carried out on the unpublished in Russia sources. The historical roots of the basic division of law and its significance for the French legal system are in the focus. Despite the absence of rigid boundaries in this division, the theory describing it is based on the real legal reality of the Romano-Germanic family of legal systems. This theory is not abstract theorizing; it is useful for practice because it aims to maintain a balance between public law and private law regulation. The issue of basic division of law in the case law system is discussed. A comparative study of the issue in the Russian legal doctrine is conducted. The author comes to the conclusion that human rights are the common part that unites public and private law, and therefore their unity is inextricable: the abrogation of private law, as the experience of building communism in Russia showed, inevitably leads to the destruction of human rights, and then to the transformation of public law into a pseudo-legal system.

scholarly journals La responsabilité civile délictuelle des municipalités en matière d'entretien des rues et des trottoirs pendant l'hiver

2005 ◽  
Vol 23 (1) ◽  
pp. 135-173
Author(s):  
Micheline McNicoll
Keyword(s):  
Civil Liability ◽  
Case Law ◽  
Public Law ◽  
The Other ◽  
Boundary Line ◽  
Court Decisions ◽  
Private Law ◽  
Considerable Influence ◽  
Public And Private ◽  
Proper Understanding

An exhaustive review of our case law is required for a proper understanding of municipalities' civil liability for offences and quasi-offences. It appears indeed that there is no other alternative since, on one hand, the legislator is mute on number of important relevant questions and, on the other hand, municipalities, are governed by rules of public law. Our review covering a period of about eighty years, contains an analysis of the three « schools of thought » that succesively exerciced considerable influence upon our court decisions. The different « schools of thought » naturally emerged from the constant opposition of public and private law divided by a boundary line subject to fluctuation.

PRIVATE COMMERCIAL LAW CONVENTIONS AND PUBLIC AND PRIVATE INTERNATIONAL LAW: THE RADICAL APPROACH OF THE CAPE TOWN CONVENTION 2001 AND ITS PROTOCOLS

2016 ◽  
Vol 65 (3) ◽  
pp. 523-540 ◽  
Author(s):  
Roy Goode
Keyword(s):  
International Law ◽  
Public Law ◽  
Vienna Convention ◽  
Private Law ◽  
Private International Law ◽  
Commercial Law ◽  
Public And Private ◽  
Conflict Of Laws ◽  
Domestic Law ◽  
Radical Approach

It is a remarkable circumstance that with a few honourable exceptions all writers on international law in general and treaty law in particular focus exclusively on public law treaties. Private law conventions, including those involving commercial law and the conflict of laws, simply do not come into consideration. Yet such conventions, like public law conventions, are treaties between States and are governed by the 1969 Vienna Convention on the Law of Treaties and many of them are of great significance. Their distinguishing feature is, of course, that while only States are parties, private law conventions deal primarily, and often exclusively, with the rights and obligations of non-State parties. So while the treaty is international it does not for the most part commit a Contracting State to any obligation other than that of implementing the treaty in domestic law by whatever method that State's law provides, if it has not already done so prior to ratification.

scholarly journals METHODOLOGICAL APPROACHES TO THE PROBLEM OF THE INTERRELATION BETWEEN PRIVATE AND PUBLIC LAW IN SETTLEMENT RELATIONS

2021 ◽  
pp. 85-92
Author(s):  
L. Panova
Keyword(s):  
Social Justice ◽  
Financial Market ◽  
Legal System ◽  
Financial Services ◽  
Financial System ◽  
Public Law ◽  
Private Law ◽  
Theoretical Understanding ◽  
Legal Standards ◽  
Private And Public

The article is based on the existing law doctrine of division of law into private and public. The author analyses the influence of the doctrine on the relationships that arise in the financial services markets. The author takes into account the results of researches conducted by domestic and foreign scholars, which were carried out in the field of law and economics. The author uses general scientific and special methods as those that form the basis of the work. The research substantiates that objectively the doctrine dividing law into private and public does not exist. Doctrine is the product of a sociocultural interpretation of the researcher's thinking process. At the same time, the doctrine is naturally refers to the structure of the financial market. The author analyses the internal mechanism of circulation of cash flows and settlements in the global financial market. This analysis is the empirical basis for the research and subsequent theoretical understanding. The author proves that the concept of separation of rights into private and public law is not a universal concept that is inherent in all countries. The doctrine is fundamental only in the countries with Romano-Germanic legal system. The idea of dividing law into private and public was not reflected at the doctrine level in the countries with Anglo-Saxon legal system. The problem of the substitution of concepts was enrooted directly in the very doctrine of law, which existed in Soviet times. It was connected with the absence of the concept of "private law" in the Soviet legal thinking. The idea of social justice changes beyond recognition in the direction of public law. The author focuses on the issue of how to ensure the sustainable development of the financial system and its main institutions (structures) using the theoretical concept of dividing law into private and public. The author emphasizes the need to take into account the diversity of legal understanding of the financial market as a social phenomenon. The research methodology should be as appropriate as possible to the research object. The idea of social justice should act as a regulator of mutual relations between members of society. Practical activity in the financial markets in the modern world tends to converge. Public law assumes the fulfilment of a social function. Therefore, the author comes to the conclusion that law is a means of reaching a compromise between members of society, provided that individual freedom is preserved and there is no need to oppose private law to public law. The author proves that European political and legal standards are built on such postulates, particularly concerning the field of calculations. Keywords: financial system, financial services markets, settlement relations, the doctrine of separation of rights into private and public.

The “Frontier” According to Paul de La Pradelle

2020 ◽  
Vol 2 (1) ◽  
pp. 130-134
Author(s):  
Benjamin Perrier
Keyword(s):  
Legal Theory ◽  
Public Law ◽  
Boundary Line ◽  
Private Law ◽  
Public And Private ◽  
Object Of Study

Essential author on the “frontier”, Paul de Geouffre de La Pradelle is known for his original legal theory. The author distinguishes between “delimitation” (which is a boundary-line) and “frontier” (which is a zone of cooperation). He also distinguishes what he calls the “national frontier” (“object of study of domestic public law”) and the “international frontier” (“object of study of international public and private law”).

Preventive Duties under Private and Public Law scilicet spei permultum sed rei paulum

2020 ◽  
Vol 2 (103) ◽  
pp. 51-71
Author(s):  
Dariusz Fuchs
Keyword(s):  
Contract Law ◽  
Legal Aspects ◽  
Public Law ◽  
Civil Code ◽  
Insurance Contract ◽  
Private Law ◽  
Public And Private ◽  
Private And Public ◽  
European Insurance ◽  
The Relationship

The article aims at discussing preventive obligations incumbent on the insurer and other entities of the insurance relationship, in particular on the policyholder. The analysis takes into account comparative legal aspects, and therefore refers to the Principles of European Insurance Contract Law (PEICL). The author emphasizes the evolution of the provision of Article 826 of the Civil Code, which has changed his views on the scope of the preventive obligation under insurance contract. He points out the possible differences of interpretation as to the scope of the prevention as well as the issue of the insurer's reimbursement of costs due to its implementation by the policyholder. What is more, the relationship between public and private law standards has been presented, with a particular focus on Article 826 of the Civil Code. Finally, de lege ferenda conclusions have been presented.

Hunting the Chimera–the end of O'Reilly v Mackman?

Legal Studies ◽  
1993 ◽  
Vol 13 (2) ◽  
pp. 183-203 ◽  
Author(s):  
John Alder
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Public Law ◽  
Private Law ◽  
Public And Private ◽  
The Supreme Court ◽  
Review Procedure

The rule in O’Reilly u Mackman is well known. As a result of Lord Diplock’s speech in that case, the scope of the application for judicial review procedure under s 31 of the Supreme Court Act 1981 and RSC Ord 53, has been dominated by attempts to distinguish between public and private law. According to Lord Diplock, public law cases must normally be pursued under the special Ord 53 procedure whereas private law cases even though involving substantive principles of judicial review must be pursued in ordinary courts. There are also hybrid cases - chimeras which combine features both of public and private law. In such cases the challenger is apparently free to proceed either under Ord 53 or by way or ordinary action or defence. These hybrids are not easy to reconcile with the purposes and policies behind the O’Reilly rule.

scholarly journals Rethinking the Public-Private Law Divide in the Age of Governmentality and Network Governance

2018 ◽  
Vol 5 (2) ◽  
pp. 119-143 ◽  
Author(s):  
Lukas van den Berge
Keyword(s):  
Common Law ◽  
Modern Art ◽  
Public Law ◽  
Network Governance ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
European Public ◽  
Present Context ◽  
Stateless Society

This article presents an analysis of the ways in which the public-private law divide is envisioned in French, English and Dutch law. First, it explains why French law’s tradition of regarding public and private law as ‘two separated worlds’ is now outmoded, failing to live up to the present trends of ‘governmentality’ and ‘network governance’ determining the modern art of government. Subsequently, it argues that the holistic idea of English ‘common law’ as French law’s conceptual counterpart is equally outmoded, with its ideology of ‘self-government’ within a ‘stateless society’ being out of touch with an age of managerialism and ‘governmentality’ in which the state withdraws from society only to increase its grip on societal processes. Finally, it proposes a paradigm recently developed in Dutch doctrinal thought as an attractive theoretical framework for structural innovations that may contribute to a stable and legitimate system of modern European public law that attunes to its present context without being alienated from its central classical tenets – be it either those rooted in the French or the English tradition.

scholarly journals The possibilities of consensual resolution of judicial conflicts with the Public Administration

2018 ◽  
Vol 18 (72) ◽  
pp. 31-50
Author(s):  
Gabriel Perlingeiro
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
A Priori ◽  
Public Law ◽  
Clear Understanding ◽  
Private Law ◽  
Public Authorities ◽  
Public And Private ◽  
The Public ◽  
Legal Studies

This text endeavors to define the theoretical limits of the capacities of the public administrative authorities to reach consensual solutions to disputes within the framework of judicial review. It is motivated by the lack of a clear understanding in Brazilian law of the border area between the legal relations of public and private law involving the public authorities, and the expressions “inalienable right” (or “inalienable interest”) and “public interest” as shown by the inexplicable asymmetry between what the public administrative authorities can do within a judicial proceeding and outside one. Based on a comparative study of common law versus civil law legal systems and an examination of the treatment of the subject in Brazilian statutes, case law and legal studies, this article reviews the relationship between the public interest and inalienability, demonstrating, in conclusion, that the possibility of the administrative authorities to enter into settlements or follow similar practices should not be rejected a priori, even in cases of public law. According to the author, there are three possible scenarios in which public administrative authorities may resort to consensual dispute resolution in the context of the judicial review: in private-law relationships, in public-law relationships with respect to the exercise of administrative actions prescribed by law and public-law relationships with respect to the exercise of discretionary powers.

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