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This article is written by Astitva Kumar, a student at JIMS, School of Law (An Affiliate of Guru Gobind Singh Indraprastha University). This article deals with the basic principles of public law and how these are different, in a country like Canada which was at one time a part of the US. This article has been edited by Chandana and Manasvee.

Introduction

The Greek philosopher Aristotle, in the 4th century BCE described the organization of humans by reference to a progression from the individual to the collective. The communal element of our existing functions is in several tiers: the family or home, the neighbourhood, and the social or political organization; the nation-state; and, increasingly, the global level, both locally throughout all nation-states. At each of these tiers, norms are governing how we engage with one another and with those in positions of power. The more comprehensive and intricate the rule for operating within an organizational unit, the larger and more complex it is.

In general, modern states are bodies of governmental organizations with legal jurisdiction over a defined region and people. States are legal constructs, and therefore, the relationship between states and individuals cannot be one of the equals. In the modern world, a state’s public law refers to the set of institutions and norms that govern the relationship between the state and the people who live on its territory.

Although Aristotle proposed the function of the state as the primary political and legal entity, it did not become a global reality until the twentieth century. Since Aristotle’s time, various civilizations have been formed and demolished over the world under a single law and authority. In the 18th and 19th centuries, European colonial expansion introduced the concept of the state, as well as state law, to pre-existing civilizations around the world.

Meaning of Public Law

Public law is the branch of law that governs the connection between the State (government/government agencies) and its subjects, as well as the interaction between persons who have a direct impact on society. According to Loughlin, “Public law may be a sort of political jurisprudence which integrates no transcendental or metaphysical view of justice and goodness; it’s concerned solely with all of these precepts of conduct that have evolved through political practice to ensure the maintenance of the public sphere as an independent entity.”

The relationships governed by public law are ambiguous and unequal. Persons’ rights can be decided by government bodies (central or local). However, as a result of the rule-of-law idea, authorities may only operate within the bounds of the law (secundum et intra legem). The government is required to follow the law. For example, a citizen who is dissatisfied with an administrative authority’s decision may petition a court for judicial review. Immigration, health, the environment, and education are just a few examples of how public law affects our daily lives. The role of public law, in its most primitive form, is to control the interaction between the state and individuals.

Even though all countries’ public law is based on a concept of law as a restraint on the arbitrary exercise of power, but there is a distinction between public law in civil law nations, such as France and Germany, and public law in common law nations, such as the United Kingdom, the United States, and Australia.

History of Public Law

Ulpian, a Roman jurist, established the distinction between public and private law, arguing that “public law is that which regards the formation of the Roman commonwealth, private law is that, which respects individuals’ interests.” In addition, he defines public law as the legislation governing religious affairs, the priesthood, and State offices. The law was conceived of in Roman law as a set of interactions between people, between things, and between people and the state. The latter of these three ties was public law. However, Roman lawyers paid little attention to this field, preferring to concentrate on private law. It was, however, extremely important in Teutonic civilization, according to German legal historian Otto von Gierke, who referred to the Teutons as “the father of public law.”

Importance of Public Law in today’s society

As there exists an unequal relationship of power between the state and individuals, public law is especially important because it provides checks and balances. This means that this area of law ensures that the government does not abuse its power over individuals and that they use their power fairly and properly.

Public and private rights 

Rights can also be separated into private and public categories. Ulpian, a Roman jurist, was the first to distinguish between public and private law and the distinction between public and private law can be traced back to Roman times.

The line dividing public and private law is not always explicit. Law cannot be simply split into “law for the State” and “law for everyone else.” As a result, the divide between public and private law is primarily functional rather than factual, with laws classified according to which domain the actions, players, and primary interests concerned the best fit into. As a result, attempts have been made to develop a theoretical understanding of the foundations of public law.

The theoretical distinction between private and public law

The intellectual and historical difference between public and private law has arisen primarily in continental European legal systems. As an outcome, there has been a great deal of debate in German-language legal literature over the precise nature of the boundary between public and private law. Several theories have evolved, none of which are exhaustive, mutually exclusive, or independent.

  1. The Interest Theory: The phrase “publicum ius est, quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem” comes from the work of Roman jurist Ulpian which means- (Public law is concerned with the interests of the Roman state, whereas private law is involved with the interests of citizens). In The Spirit of the Laws, published in the 18th century, Charles Louis Montesquieu elaborates on this notion, establishing a division between international (right of nations), public (political right), and private (civil right) law focusing on different interests and rights. 
  2. The Subjection Theory: It emphasizes the subordination of private individuals to the state to explain the distinction. This relationship is designed to be governed by public law, whereas private law is designed to govern situations in which the persons involved meet on a level playing field. Essentially, it is concerned with the subject of law’s place in the legal relationship to which rights and duties are allocated. Until it finds itself in a certain circumstance as a public person (such as a State or a Municipality), public law applies; otherwise, private law authorizes or obligates everyone. 
  3. The Subordinate Theory: The theory distinguishes between individuals based on their relationship. A superior-subordinate connection characterizes public law, whereas a coordination relationship characterizes private law. As a result, public law is important for unilaterally binding regulations such as statutes and administrative acts, but private law is important for contracts. This notion was created in the last century based on the concept that administration was limited to executory administration. It fails to describe the relationship in the field of public administration. 

Areas of Public Law 

Constitutional Law

Constitutional law establishes the foundation of modern states. Above all, it asserts the supremacy of the rule of law in the operation of the state. It defines the structure of government, how its various branches function, how they are elected or appointed, and how authorities and responsibilities are divided among them. The executive, legislature, and judiciary have traditionally been the three basic branches of government. It also outlines what are the basic human rights that must be preserved for all people, as well as what additional civil and political rights citizens have, and it establishes the fundamental boundaries for what any government must and must not do. Constitutional Law is a subfield of Public Law. It establishes the political organization of the State and its authorities, as well as substantive and procedural constraints on the exercise of governing power. The application of fundamental principles of law based on the document, as interpreted by the Supreme Court, is constitutional law.

According to Salmond, “Constitutional Law is the set of those legal ideas that identify a State’s Constitution—that is, the essential and fundamental components of the State’s organization.”

Administrative Law

Administrative law is the corpus of law that governs bureaucratic management practices and determines the authority of administrative authorities. The executive branch of a government, rather than the judicial or legislative branches, is in charge of enforcing these laws (if they are different in that particular jurisdiction). This branch of legislation governs foreign trade, manufacturing, pollution, taxation, and other similar activities. As it deals with the regulation and public institutions, this is sometimes considered a subclass of civil law and sometimes considered public law. The administration has been defined in this context as the use of political powers within the constraints of the Constitution as the complete tangible and ever-changing actions of the State in particular circumstances as the functions, or activity, of the Sovereign Power.’ 

According to Holland, Administrative Law governs the operations of the several organs of the Sovereign Power as defined by the Constitution. 

As per Vago Steven, “Administrative Legislation is a corpus of law generated by administrative agencies in the form of rules, directives, and decisions.”

Criminal Law

The much more important job of the State is that of a guardian of order, preventing and punishing all harm to itself and any disobedience to the rules that it has established for the general good. In outlining the scope of its rights in this regard, the State normally begins with an enumeration of the activities that infringe on them, followed by an indication of the penalty to which anybody who does such acts will be subject.

Tax law first emerged as a branch of public law in the 17th century as a result of new notions of sovereignty emerging. Taxes were once seen as gifts under the law, delivered to the state by a private contributor — the taxpayer. It is now considered a branch of public law because it involves a relationship between individuals and the state.

Public laws in the US and a call for betterment 

The United States Code is a compendium of all existing public laws, divided into 50 titles that deal with broad, logically ordered areas of legislation. The United States Code incorporates the original law as well as subsequent changes, and it deletes material that has since been repealed or superseded. The United States Code was created to make it easier to discover relevant and effective statutes by arranging them by topic matter and removing outdated and amended parts. The Code is administered by the US House of Representatives and the Office of the Law Revision Counsel (LRC). The LRC decides which statutes in the United States Acts at large should be codified and which existing statutes are affected by modifications or repeals, or have simply expired due to their terms. The LRC makes the necessary changes to the Code. 

The majority of laws made by Congress are public legislation. Slip laws are sometimes called public and private laws. A slip law is a formal publication of the law that is admitted as credible evidence in all state and federal courts and tribunals throughout the United States. The primary edition is released every six years by the House of Representatives Office of Law Revision Counsel, while cumulative supplements are released yearly.

Once the President signs a bill into law, it is forwarded to the office of National Archives and Records Administration’s (NARA) and the Office of the Federal Register (OFR), where it is given a law number, a legal statutory citation (for public laws only), and is readied for publishing as a slip law.

Comparison of laws of both the countries 

The Australian system is based on liberal democracy, which originated in the United States and the United Kingdom. Australia has mostly inherited these two countries’ primary state structures and public law concepts but has fashioned these institutions and concepts into distinctly Australian public law.

One striking similarity between Canadian and US laws is that each country has strayed from the Constitution’s basic idea of federal power distribution. In all cases, the departure was essentially achieved through judicial interpretation by the country’s highest court. But, the irony is that each system has evolved to look more like the other’s design. The purpose in Canada, as evidenced in the Constitution of 1867, was for the central government to take precedence, but the Privy Council’s Judicial Committee (This was the supreme legal authority until 1949 until it was taken over by the Supreme Court of Canada) construed provincial powers liberally and federal powers conservatively, providing provinces with a far larger share of the power balance than had been anticipated.’ But in the case of the United States, it has taken the other path; its constitutional structure was based on states’ rights, but the effect has been a powerful central government.

The extent of central government control isn’t the sole distinction between the two systems. A study of the allocation of legislative authority in the United States and Canada would shatter any assumption that there was a “natural” way for federalism to be constructed. On one level, there are discernible distinctions in where specific powers are vested. Marriage and divorce, as well as criminal law, are handled by the federal government in Canada, but by state governments in the United States.

Furthermore, Canadian provinces have far more exclusive control over local business than states in the United States. Without the cooperation and agreement of the provinces, the federal government in Canada lacks the practical capacity to enforce economic policies and solutions. In comparison, the United States Congress has the right to regulate virtually all economic activity.

In the United States, the Constitution does not define the regions in which state law may apply; rather, it delegated that option to Congress. While the states are weaker vis-à-vis the national legislature than the Canadian provinces (save for their representation), they are more protected from national control in other ways. In the United States, there is no set region in which state law can function, but when it does, it is more autonomous and has more independent force than provincial law does in Canada. 

National courts in the United States occasionally follow state law, but they never pretend to be their interpreter. State law is, by definition, whatever the state’s Supreme Court declares it to be. Regardless of how ridiculous a state’s interpretation of its law appears to the U.S. Supreme Court, that legislation nonetheless operates unless the U.S. Supreme Court rules that the law, as so interpreted, violates the U.S. Constitution. Canada has a system of provincial courts, which serve as the country’s major courts. However, when it comes to reviewing their rulings, the Canadian Supreme Court has the final say in settling common law matters as well as interpreting provincial enactments. Provincial law is not isolated from national law or by the involvement of national court decision-makers in the very same manner that state law is in the United States.

However, when it comes to reviewing their rulings, the Canadian Supreme Court has the final say in settling common law matters as well as interpreting provincial enactments. Provincial law is not isolated from national law or by the involvement of national court decision-makers in the very same manner that state law is in the United States.

Conclusion 

The juristic principles evolve in the context of rights and the law as command regulates the interaction between individuals as well as the connection between persons and the government in any legal system. The term “public law” refers to the state’s particular abilities to govern the country, which include the ability to enforce, apply, execute, make, repeal, and alter the law. This subject of law is also known as constitutional (the law that establishes the state’s key institutions and provides its framework) and administrative (the law that establishes the legal obligations and powers of particular public authorities and bodies) law.

Australian public law is more than just a set of rules. It is a conglomeration of governance systems, underpinning concepts and principles, fundamental procedures, fundamental institutions, and core values. The interaction of various systems, processes, concepts, principles, institutions, and values in the Australian state informs and determines how they grow in the pursuit of the common good. 

The court system in the United States is more intricate, reflecting the states’ higher historical and constitutional status. In essence, the United States has two sovereign judicial systems: federal and state. The regulations of fifty autonomous state court systems vary.

References 


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