Lesson 12: Public Law and Private Law

Section 1: Foundational Dichotomy, State Persona, and Scope of Public Law

Core Concept and Historical Origin

In any legal system, juristic principles evolve in the context of legal rights. Law as a command regulates both the relationships between individuals and the relationship between the individual and the government. As noted by N.R. Madhav Menon in his introduction to Holland on Jurisprudence, the State occupies fundamentally different positions in the two spheres:

• In Private Law: The State's presence is merely as an arbiter of the rights and duties existing between citizens.
• In Public Law: The State is not only the arbiter, but also one of the parties interested. The rights and duties concern itself on the one part and its subjects on the other part.

This union in one personality of the dual attributes of judge and party gave rise to the theoretical view that the Sovereign State not only has no duties, but also has no rights properly so-called. In Public Law, of the two persons who form the constituent elements of every legal right, one must always be the State, acting through its various functionaries.

Clear Explanation in Basic Words

Public Law is that part of law which governs the relationship between the State (including government departments and statutory agencies) with its subjects, as well as relationships between individuals that directly affect the public order and welfare of society. According to the jurist Martin Loughlin, "Public law is a form of political jurisprudence that incorporates no transcendental or metaphysical ideas of justice and goodness; it is concerned solely with those precepts of conduct that have evolved through political practice to ensure the maintenance of the public realm as an autonomous entity."

Subject-Matter Heads of Public Law

Public Law addresses social problems in a broad collective context and encompasses five primary heads:

1. Constitutional Law: Governing the supreme political structure and distribution of sovereign power;
2. Administrative Law: Regulating the operational activities of executive agencies;
3. Criminal Law and Criminal Procedure: Punishing public wrongs committed against the State and society;
4. Law of the State in its Quasi-Private Personality: Including adjective procedure governing how the State sues or may be sued; and
5. Judge-Made Law: Precedential principles articulated through judicial interpretation.

Why the Concept Matters

Significance: Today, the traditional public-private classification is breaking down. Technological growth has added new dimensions, and many contemporary disputes are directed against the State and its functionaries. An independent judiciary has become the central pillar of the Rule of Law, requiring jurisprudence to be re-examined beyond the traditional concept of an omnipotent Sovereign State.

Section 2: The Trilateral Pillars of Public Law: Constitutional, Administrative, and Criminal Law

Constitutional Law: The Supreme Political Architecture

The primary function of Constitutional Law is to ascertain the political center of gravity of any given State, postulating the supremacy of law in the functioning of government. As defined by John William Salmond, "Constitutional Law is the body of those legal principles which determine the Constitution of a State—i.e., the essential and fundamental portions of the State's organization."

In India, the Constitution establishes a Sovereign, Socialist, Secular, Democratic Republic with a Federal System, a Parliamentary form of Government in the Union and States, and an Independent Judiciary. It defines the structure, procedures, powers, and duties of government organs, while declaring fundamental human rights through Fundamental Rights and Directive Principles of State Policy. It sets substantive and procedural limitations upon the exercise of governing authority.

Administrative Law: Concrete Executive Regulation

According to Thomas Erskine Holland, Administrative Law provides for the manner of activities of the various organs of Sovereign Power as provided by the Constitution. Administration is defined as "the exercise of political powers within the limits of the Constitution as the total concrete and manifoldly changing activity of the State in particular cases as the functions, or the activity, of the Sovereign Power."

Administrative Law encompasses:

• The making and promulgation of delegated regulations;
• Executive action guiding foreign relations;
• Administration of justice and management of State property and business enterprises;
• Subordinate official machinery providing for State existence and general public welfare; and
• Regulation of revenue collection, census statistics, international trade, manufacturing, pollution, and taxation.

As defined by Steven Vago, "Administrative Law is a body of the law created by administrative agencies in the form of regulations, orders, and decisions." It is enforced by the executive branch of government rather than the legislature or judiciary.

Criminal Law: Guardian of Public Order

The most important function of the State is that which it discharges as the guardian of order, preventing and punishing injuries to itself and disobedience to rules enacted for the common welfare. The State defines its orbit of rights by enumerating prohibited acts coupled with an intimation of penalties. Adjective Criminal Law (Penal Procedure or Instruction Criminology) is the body of rules whereby the machinery of the courts is set in motion for the punishment of offenders.

Section 3: Structure, Taxonomy, and Principles of Private Law

Core Concept and Simple Definition

Private Law governs the relationships between individuals with one another, or private relationships between citizens and corporations that are not of direct public importance. In Private Law, the role of the State is merely to recognize, enforce, and adjudicate disputes through its judicial organs as an impartial arbiter. It comprises the Law of Torts, Law of Contract, Law of Property, Law of Succession, and Family Law.

Private Substantive Law: Antecedent and Remedial Rights

The textbook classifies Private Substantive Rights under two primary divisions:

1. Normal Substantive Rights (Antecedent Rights): Existing prior to and independently of any wrong having been committed:
   • Antecedent Rights in Rem: Rights available for the benefit of the person of inherence against a person of incidence so unlimited as to comprise the whole world. Examples include rights to personal freedom, bodily integrity, reputation, possession, and ownership.
   • Antecedent Rights in Personam: Rights available against a definite, identifiable person, arising out of private agreements or specific legal duties. Examples include rights of family members against each other, or the right of a patient against a surgeon for want of skill.
2. Remedial Rights: Arise following the violation of an antecedent right. Their objective is either restitution or monetary compensation. As a rule, remedial rights are available in personam against the wrongdoer.

Abnormal Antecedent Rights and Private Adjective Law

Normal rights apply to ordinary natural individuals. In contrast, Abnormal Antecedent Rights govern persons occupying distinct legal positions, categorized into: (a) abnormal natural individuals (minors, infants, lunatics, and convicts), and (b) artificial legal persons (corporations, associations, and foundations). Furthermore, Private Adjective Law supplements substantive law by prescribing the rules and modes in which the State, acting as a quasi-private personality, may sue or be sued.

Bernard Rudden's Analytical Formula of Private Law

According to Bernard Rudden, Private Law governs legal relations between persons across three distinct spheres: (1) pure status (marriage, divorce, kinship); (2) assets (property, succession, contracts); and (3) commercial activities. It is characterized by two distinct structural features:

• Juridical Equality: Participants are presumed to be equals in law, unlike the vertical hierarchy of Public Law. One private citizen cannot issue orders to another unless authorized under a voluntary contractual or family arrangement.
• Default Regulatory Patterns: Much of Private Law is not automatically binding command (jus cogens). Instead, it serves to reduce the cost of legal transactions by providing default models which citizens may adopt in full or modify as they see fit (e.g., intestacy rules apply only if a person dies without a will; statutory terms of sale, lease, loan, and partnership operate as optional standard-form templates).

Derived from Roman jurists, the overarching formula of Private Law in both Civil and Common Law systems rests upon four pillars: Persons, Property, Obligations, and Liability.

Section 4: Doctrinal Theories Demarcating Public and Private Law

Historical Roots in Roman Jurisprudence

The distinction between Public and Private Law traces back to ancient Roman law, which declared that public law 'ad statum rei Romanae spectat' (regards the constitution and status of the Roman state), and consists 'in sacris, in sacerdotibus, in magistratibus' (in religious matters, priesthoods, and public offices), while also including the law of crimes.

The Three Classic Juristic Theories of Distinction

1. The Interest Theory (Ulpian): Formulated by the Roman jurist Ulpian: "Publicum ius est, quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem." Public law concerns the Roman State, whereas Private Law concerns the interests and utility of individual citizens.
   Critical Flaw: It is difficult to define 'public interest' objectively, because numerous matters of private law (such as widespread contract defaults or family welfare) directly impact the general public interest.
2. The Subordinate Theory: Distinguishes law based on the structural relationship between participants. Public law is characterized by a superior-subordinate relationship (vertical command, unilateral binding administrative regulations, and statutes). Private law creates a relationship of coordination between equal participants (horizontal agreements and bilateral contracts).
   Critical Flaw: Developed during an era when executive administration was viewed purely as police and sovereign control, it fails completely to explain the modern welfare state and public service administration where the State provides healthcare, transit, and social amenities on non-coercive terms.
3. The Subject Theory: Looks to the formal status of the subject of law in the legal relationship. If a party participates as a public person endowed with sovereign authority (such as the State, a statutory board, or a municipality), Public Law applies. If the party acts as an ordinary legal subject without sovereign prerogative, Private Law applies.

Section 5: Judicial Lawmaking, Legal Traditions, and Landmark Jurisprudence

Common Law vs. Civil Law: The Role of Precedent

The Common Law system is generally uncodified, relying on judicial precedent rather than comprehensive codes. Presiding judges determine which precedents govern new disputes, giving the judiciary an enormous role in shaping Anglo-American jurisprudence. In contrast, Civil Law systems are codified into statutory enactments (such as Civil, Commercial, and Family Codes), where judges historically played a comparatively minor role limited to resolving the immediate dispute before them.

The Doctrine of Precedent is an operating judicial rule created by judges themselves rather than a legislature. In England, the House of Lords held in the 19th century that it was strictly bound by its own prior decisions; however, in 1966 it amended this rule, announcing that it was free to depart from prior rulings when justice required. Lower courts, however, remain strictly bound by the legal rulings of superior appellate courts.

Theoretical Perspectives on Judicial Lawmaking

• President Theodore Roosevelt (1908 Message to Congress): Asserted that judges are the chief lawmakers because they form the final seat of authority. Whenever judges interpret contracts, property, vested rights, due process, and liberty, they inevitably enact their social and economic philosophies into law, giving fundamental direction to all lawmaking.
• Prof. A.V. Dicey on Judicial Limitations: Dicey maintained that judge-made law is real law, but operated under strict legal limitations:
  1. Courts cannot openly declare an entirely new principle of law; their ruling must take the form of a deduction from an established legal principle or an interpretation of a statute;
  2. Courts cannot override Statute Law; they may indirectly restrict or extend statutory operation through interpretation, but cannot set aside a valid statute; and
  3. Courts cannot override established principles of judge-made law, although a superior court may overrule an inferior court precedent.
• H.L.A. Hart on Hard Cases: In 'hard cases' where an applicable rule is uncertain, ambiguous, or absent, the judicial 'rule of recognition' grants judges strong discretion to fill in statutory gaps based on conceptions of fairness and justice.
• T.R.S. Allan vs. Tomkins and Poole: Allan views the Rule of Law as a substantive legal principle empowering judges to strike down arbitrary legislative and executive action. Conversely, Tomkins and Poole argue that courts should merely police constitutional boundaries, leaving policy debates and systematic social solutions to the legislature, which represents diverse public interests through democratic debate.

Four Landmark Indian Decisions Shaping Substantive Law

1. Vishaka v. State of Rajasthan: The Supreme Court formulated comprehensive guidelines and binding norms to prevent sexual harassment of women at the workplace, ruling that sexual harassment violates the fundamental constitutional right to equality.
2. Indira Sawhney I and II: The Court established that caste alone cannot be the sole criterion for determining socially and economically backward classes, and laid down the binding doctrine excluding the advanced 'creamy layer' from reservation benefits.
3. Raj Narain v. State of U.P.: The Supreme Court declared that citizens cannot exercise freedom of speech unless they know the facts of governance; consequently, the Right to Information is embedded as an integral fundamental right within Article 19(1)(a).
4. PUCL v. Union of India: The Court held that securing basic information regarding candidates contesting elections to Parliament and State Legislatures is essential for voter expression, reinforcing that the Right to Information is an inseparable component of Article 19(1)(a).