COMPARATIVE PUBLIC LAW

TOPIC: CONCEPT OF PUBLIC LAW

MEANING & SCOPE OF PUBLIC LAW
SIGNIFICANCE OF COMPARATIVE PUBLIC LAW- CONSTITUTIONAL LAW,
ADMINISTRATIVE LAW, CRIMINAL LAW
PUBLIC LAW & PRIVATE LAW DIVIDE

SUBMITTED TO:
DR. SHRUTI BEDI
MS. KAJORI BHATNAGAR

SUBMITTED BY:
MADHURI MALHOTRA
ROLL NO. 1908
LL.M. (ONE YEAR) 2019-20
 INTRODUCTION

Law is the system of rules which a particular country or community recognizes as regulating
the actions of its members and which it may enforce by the imposition of penalties. Law may
be public or private. Public law (lat. ius publicum) is that part of law which governs
relationships between individuals and the government, and those relationships between
individuals which are of direct concern to the society. In other words, Public law refers to the
relationship between individuals and the government and dealing with the structure and
operation of the government. It affects society as a whole. It is sub-divided into several
branches, including constitutional, administrative and statutory law, which resolve conflicts
between individuals and government. Public law was originally defined by the Roman as Res
publica – i.e. ‘the public thing,’ or in the public interest and common good, and based on the
differentiation between the state and the government.

The relationships public law governs are asymmetric and unequal government bodies, may
be central or local, can make decisions about the rights of individuals. However, as a
consequence of the rule of law doctrine, authorities may only act within the law. The
government must obey the law. For example, a citizen unhappy with a decision of an
administrative authority can ask a court for judicial review.1

Public law scholars have had diverse conceptions of their field. Some have viewed public law
as identical with constitutional law; others have seen it as limited to the study of courts and
judges; and still others have taken the view that it covers all rule making and rule
interpretation intended for the guidance of governmental agencies.2

HISTORICAL BACKGROUND

Under the Romans, res publica was an alternative to the traditional ruling systems, where the
power was vested entirely in the hands of a single person. Rome in the 1st century B.C. had
no written constitution, but the republic used unwritten guidelines and principles passed
down mainly through precedent.

1
Public law in concept of law, available at
<http://ojls.oxfordjournals.org/content/early/2013/04/26/ojls.gqt013.abstract.html?papetoc, last seen on
02/04/2020.
2
S.E. Corwin, The Constitution:A Chronicle of the Supreme Court, New Haven: Yale Univ.Press, 88(1919).
Res publica, public law, as the thing of people, was first defined by the Roman senator Cicero.
Res publica usually refers to a thing that is not considered to be privately owned (res private)
but which is held in common by many people. A park or garden in the city or Rome could
either be “private property,” or managed by the state, in which case it would be res publica.
Initially, Rome’s public law was closely related to religion, but over time this connection
weakened.

After the Roman Empire, the concept of public law was adopted by monarchies and republics.
In monarchies, public law represented the power of monarch, while in republics public law
was a responsibility of the people.

In France, the concept of public law was represented by the idea of the state (I’Etat). The
French state comprises the community of permanent interest of the nation, rather than a tool
for domination. Various concepts such as the public interest derive from the French idea of
public law.

In Germany, public law developed around the concept of the prince state (Furstenstaat). This
personified idea of the state had a great influence on the development of public law in
general. The idea of the Prince State lost its popularity in the 19th century and in the 20th
century it remained only in theory, for example in the works of Hans Kelsen.

Unlike continental Europe, England did not embrace the idea of res publica. Instead, the
English and Scottish legal systems are based on common law, which evolved overtime based
on precedent, with lawyers looking to previous court rulings upon which to base their
decisions. According to some researchers, the rule of law created by courts tends to protect
private interests and is therefore is the opposite of public law. The United Kingdom has never
had a written constitution. Its legal system is based on statutes such as:

• Magna Carta – the liberties charter from the 13th century

• The petition of Rights

• The Bill of Rights

• The Act of Settlement (1700)

• The Parliament Acts (1911 and 1949)

With the founding fathers of the United States being familiar with the fundamentals of English
law, the values of the U.S. legal system are those of common law. The United States did not
embrace the idea of public law, in the sense of res publica, but it did adopt a number of public
law acts. Only the States of Louisiana makes an exception, following the French tradition of
public law, especially the French civil code, known as the Napoleonic Code.

U.S. public law acts include:

• The constitution and the preamble

• The Bill of Rights

• The Civil War Amendments

Other English speaking states, such as Australia and the English- speaking provinces of
Canada, also tended to adopt the common law model. Studies into the public law in
continental Europe and the United states have examined various factors determining the
difference in the legal systems. Some see the main reason in the fact that France, for example,
Rome adopted res publica whereas the United States did not.

MEANING AND CONCEPT OF PUBLIC LAW

Public law is about the exercise of power by public authorities, such as local authorities or
government departments. It is different from private law, which governs relationships
between individuals and private companies. If a decision made by a public body acting in a
public capacity is unlawful, or if the decision making process is unfair, it can be challenged by
using a complaints procedure, or by judicial review if there is no other way to challenge it.

Public law controls public bodies acting in a public capacity. Sometimes it is obvious what is a
public body, for example a local authority or a government department. The following are all
public bodies: Government ministers, departments and agencies, local authorities (including
social services, housing departments and local education authorities), health authorities, the
police, prisons, courts, statutory tribunals, coroners’ courts, and regulatory and supervisory
bodies.3

DEFINITIONS OF PUBLIC LAW

Public laws are statutes affecting the general public. It could refer to the body of law dealing
with the relations between private individuals and the government and with the structure
and operation of the government itself. Public law could be Constitutional law, Criminal law
and Administrative law taken together. Constitutional law is also referred to as Public law. 4

 According to Duhaime's Law Dictionary, public law is defined as5:

“Those laws which regulate the structure and administration of the government, the
conduct of the government in its relations with its citizens, the responsibilities of
government employees and the relationships with foreign governments.”

 According to Webster’s Dictionary, public law is6:

 “A legislative enactment affecting the public at large,

 A branch of law concerned with regulating the relations of individuals with the
government and the organization and conduct of the government itself .”

 According to legal dictioanary7:

“Public law is that area of constitutional, administrative, criminal and International

law that focuses on the organisation of the government, the relations between the
state and its citizens, the responsibilities of government officials, and the relations

3
An Introduction to Public Law, available at
http://www.publiclawproject.org.uk/data/resources/4/PLP_Short_Guide-1_1305.pdf last seen on 02/04/2020.
4
Public law and legal definition, available at https://definitions.uslegal.com/p/public-law/ last seen on
02/04/2020.
5
Public law definition, available at http://www.duhaime.org/LegalDictionary/P/PublicLaw.aspx last seen on
01/04/2020.
6
Definition of public law, available at https://www.merriam-webster.com/dictionary/public%20law last seen
on 03/04/2020.
7
Public law, available at http://legal-dictionary.thefreedictionary.com/public+law last seen on 02/04/2020.
 between sister states. It is concerned with political matters, including the powers,
rights, capacities and duties of various levels of government and government officials.”

 According to Business dictionary8,

“Public law is the body of law, governing relations between a state and its citizens and
dealing with the structure and operation of the government. It covers administrative
law, constitutional law and criminal law.”

Public law comprises constitutional law, administrative law, tax law and criminal law, as well
as all procedural law. In public law, mandatory rules prevail. Laws concerning relationships
between individuals belong to private law. The distinction between public law and private law
dates back to Roman law. It has been picked up in the countries of civil law tradition at the
beginning of the nineteenth century, but since then spread to common law countries, too.

The borderline between public law and private law is not always clear in particular cases,
giving rise to attempts of theoretical understanding of its basis.

OBJECT OF PUBLIC LAW

The main object or purpose of public law is to determine and regulate the relationship
between state and individuals. Public law with a greater scope deals with more issues that
affect the general public or the state itself. It is important because of the unequal relationship
between the government and the public. The government is the only body that can make
decisions on the rights of individuals and public law ensures that it must act within the law. A
citizen can ask for judicial review if they are unhappy with a decision of an authoritative body.

NATURE AND SCOPE OF PUBLIC LAW

Public law is concerned with the activity of governing and the relations between the
governors and the governed, namely the relationships between individuals and governmental
authorities. Public law is a ‘right in rem’ which means right against the whole world. While
attempts to distinguish between public law and related fields or to draw the exact limits of

8
Public law, available at <http://www.businessdictionary.com/definition/public-law.html. Last seen on
02/04/2020.
public law in regard to other areas of law may be controversial, there is no doubt that
constitutional law and administrative law are both viewed as branches of it.9

AREAS OF PUBLIC LAW

Public law deals with issues that affect the general public or state - society as a whole. Some
of the laws that its wide scope covers are:

1. CONSTITUTIONAL LAW

Constitutional law is the body of law which defines the relationship of different entities within
a state, namely, the executive, the legislature, and the judiciary. Constitutional law deals with
the fundamental principles by which the government exercises its authority. In some
instances, these principles grant specific powers to the government, such as the power to tax
and spend for the welfare of the population. Other times, constitutional principles act to place
limits on what the government can do, such as prohibiting the arrest of an individual without
sufficient cause. In most nations, including the United States, constitutional law is based on
the text of a document ratified at the time the nation came into being.10

In modern states, constitutional law lays out the foundations of the state. Above all, it
postulates the supremacy of law in the functioning of the state – the rule of law.

Secondly, it sets out the form of government – how its different branches work, how they are
elected or appointed, and the division of powers and responsibilities between them.
Traditionally, the basic elements of government are the executive, the legislature and the
judiciary.11

And thirdly, in describing what are the basic human rights, which must be protected for every
person, and what further civil and political rights citizens have, it sets the fundamental
borders to what any government must and must not do.12

In most jurisdictions, constitutional law is enshrined in a written document, the Constitution,

sometimes together with amendments or other constitutional laws. In some countries,

9
Public law, available at http://www.dictionary.com/browse/publiclaw last seen on 31/03/2020.
10
What is constitutional law, available at http://www.hg.org/constitutional-law.html last seen on 31/03/2020
11
Ibid.
12
Ibid.
however, such a supreme entrenched written document does not exist for historical and
political reasons – the Constitution of the United Kingdom is an unwritten one. Indian
constitution is a written constitution. Not all nation states have codified constitutions, though
all such states have a jus commune, or law of the land, that may consist of a variety of
imperative and consensual rules. These may include customary law, conventions, statutory
law, judge-made law, or international rules and norms.13

2. ADMINISTRATIVE LAW

Administrative law refers to the body of law which regulates bureaucratic managerial
procedures and defines the powers of administrative agencies. These laws are enforced by
the executive branch of a government rather than the judicial or legislative branches (if they
are different in that particular jurisdiction). This body of law regulates international trade,
manufacturing, pollution, taxation, and the like. This is sometimes seen as a subcategory of
civil law and sometimes seen as public law as it deals with regulation and public institutions.14

Administrative law is the law governing the functions of the government, and the role it plays
for its citizens; this area of law regulates areas such as trade, economy, public service,
environmental protection, and taxation.

Administrative Law is the law related with the administrative functions of the Administrative
Agencies (the Government and its Departments). The Law involves the study of the following
broad topics15:

 Check abuse or detournment of administrative power.

 Ensuring citizens an impartial determination of their disputes by officials.
 Protect citizens from unauthorised encroachment on their rights and interests.
 Make those who exercise public power be accountable to people.

13
Constitutional Law, available at http://encyclopedia2.thefreedictionary.com/constitutional+law last seen on
02/04/2020.
14
Administrative law, available at https://www.law.cornell.edu/wex/administrative_law last seen on
02/04/2020.
15
Administrative Law, available at http://www.lawnotes.in/Administrative_Law last seen on 02/04/2020.
 3. CRIMINAL LAW

Criminal law refers to a body of laws that apply to criminal acts. In instances where an
individual fails to adhere to a particular criminal statute, he or she commits a criminal act by
breaking the law. This body of laws is different from civil law, because criminal law penalties
involve the forfeiture of one's rights and imprisonment. Conversely, civil laws relate to the
resolution of legal controversies and involve money damages.16

There are various theories for why we have a criminal law system. Neither theory is exclusive
or dispositive. The main theories for criminal law include: to deter crime, to reform the
perpetrator, to provide retribution for the act, and to prevent further crime. 17

Criminal law involves the state imposing sanctions for defined crimes committed by
individuals or businesses, so that society can achieve its brand of justice and a peaceable
social order. This differs from civil law in that civil actions are disputes between two parties
that are not of significant public concern.18

The term criminal law generally refers to substantive criminal laws. Substantive criminal laws
define crimes and may establish punishments. In contrast Criminal Procedure describes the
process through which the criminal laws are enforced. For example: the law prohibiting
murder is a substantive criminal law. The manner in which the government enforces this
substantive law through the gathering of evidence and prosecution is generally considered a
procedural matter.19

4. MUNICIPAL LAW

Municipal Law is the law specific to a particular city or country (known legally as a
“municipality”), and the government bodies within those cities or countries. This can cover a
wide range of issues including everything from police power, zoning, education policies and

16
What is criminal law, available at http://study.com/academy/lesson/what-is-criminal-law-definition-
purpose-types-cases.html last seen on 01/04/2020.
17
Criminal law, available at https://www.law.cornell.edu/wex/criminal_law last seen on 01/04/2020.
18
Ibid.
19
Criminal law, available at http://legal-dictionary.thefreedictionary.com/Criminal+Law last seen on
01/04/2020.
property taxes.20 Municipal laws are ordinances, regulations and by-laws that govern a city or
town.

5. INTERNATIONAL LAW

International laws that oversee relations between nations. International Law, unlike most
other areas of law, has no defined area or governing body, but instead refers to the many and
varied laws, rules and customs which govern, impact and deal with the legal interactions
between different nations, their governments, businesses and organizations, to include their
rights and responsibilities in these dealings.21

Traditionally, international law consisted of rules and principles governing the relations and
dealings of nations with each other, though recently, the scope of international law has been
redefined to include relations between states and individuals, and relations between
international organizations. Public International law, concerns itself only with questions of
rights between several nations or nations and the citizens or subjects of other nations.22

Let's use Brown v. Board of Education,23 to better understand public law as it relates to an
administrative agency.

In this case, Linda Brown, the plaintiff (brought about by her father, Oliver) contended that
his daughter was not being protected under the Constitution. Since Brown was suing the
Board of Education, this falls under constitutional law but an administrative agency was sued
for the violation.

Linda had to walk several blocks to the school bus stop even though a closer whites-only
school existed within a few blocks from her home. Brown's parents believed that Linda's 14
Amendment rights were violated when she was banned from a white school closer to home
because of her race.

20
What is municipal law, available at http://hirealawyer.findlaw.com/choosing-the-right-lawyer/municipal-
law.html last seen on 01/04/2020
21
International law, available at https://www.hg.org/international-law.html last seen on 02/04/2020.
22
International law, available at https://www.law.cornell.edu/wex/international_law last seen on 02/04/2020.
23
347 U.S. 483 (1954)
The case was won because the U.S. Supreme Court declared segregation a violation of
Brown's constitutional rights. This falls under public law because issues of segregation and
discrimination affect society as a whole, not just this particular child.

PUBLIC LAW REMEDIES

Most people are affected by public law decisions at some time in their lives. There are many
procedures by which individuals can challenge the legality of decisions made by public bodies.
They include:

 Judicial review: court proceedings in which a judge is asked to review the lawfulness
of the decision which is being challenged. Set aside the decision complained of make
an order stopping the public body from doing something unlawful. Award damages in
very limited circumstances.
 Complaints procedures such as the social service complaints procedure; and
 Ombudsman schemes such as the Local Government Ombudsman, and the
Parliamentary Commissioner for Administration.

These remedies are discretionary and the court might not do anything if it does not think it’s
fair. Complaints and ombudsman schemes have different remedies available, and you should
check the individual scheme for details. They can usually investigate complaints and get an
apology, or get the public body concerned to change its procedures. They can often obtain
financial compensation.

Public law remedies are the means by which public authorities can be held to account. In the
absence of effective and accessible mechanisms of accountability, the exercise of power by
central and local government, and the many other public bodies, may go unchecked.

SIGNIFICANCE OF COMPARATIVE PUBLIC LAW

Constitutional /Administrative Law: Constitutional law is genus and Administrative law is a

species of constitutional law. A study of one entails the comparative study of the other. The
impact of constitutional law upon administrative law in England is meagre and blurred
especially in countries like England where the Constitution is unwritten and, as Dicey
elaborates it, the rules which in other countries form part of a constitutional code are, in
England, the result of the ordinary law of the land. In the result whatever control the
administrative authorities can be subjected to must be deduced from the ordinary law, as
contained in statutes and judicial decisions. But, in countries having written constitution,
there is an additional source of control over administrative action, and that is the written
constitution which imposes limitations upon all organs of the body politic. In these countries
the sources and modes of exercising judicial control over the administrative agencies are
twofold, constitutional and non-constitutional. It is for this reason that while at the very
outset every author endeavours to distinguish the scope of administrative law from that of
constitutional law, they can never afford to forget to mention that in a country having written
constitution with judicial review, it is not possible to separate the two into watertight
compartments. The reason being that the written constitution, being the organic law, not only
sets up but also imposes limitations upon the powers of all the organs of the State, legislative,
executive or judicial, and if any of these limitations be transgressed by any of these organs,
the act so done will be unconstitutional and invalid. So far as the acts of the executive or the
administration are concerned, this is secured in India in various ways. The legislative acts of
the administration i.e. statutory instruments (or subordinate legislation) are expressly
brought within the fold of Article 13 of the Constitution, by defining it as including order, bye-
law, rule, regulation, notification having the force of law. A delegated legislation can therefore
be challenged as invalid not only on the ground of being ultra vires the statute which confers
power to make it (as in all common law countries), but also on the additional ground that it
contravenes any of the fundamental rights guaranteed by Part III of the Constitution.

Criminal Law / Comparative Criminal Justice: It is a subfield of the study of Criminal Justice
that compares justice systems worldwide. Such study can take a descriptive, historical, or
political approach. It studies the similarities and differences in structure, goals, punishment
and emphasis on rights as well as the history and political stature of different systems. It is
common to broadly categorize the functions of a criminal justice system into policing,
adjudication (i.e. courts), and corrections, although other categorization schemes exist.
Comparativists study the four different types of societies, their methods of enforcement and
their different types of punishment such as capital punishment, and imprisonment. Within
these societies they study different types of legal tradition and analyse the issues they solve
and create. They use their information in order to learn effective ways of enforcing laws, and
to identify and solve problems that may arise within a system due to its methods.

PRIVATE LAW

This branch of law defines, regulates, governs and enforces relationships between individuals
and associations and corporations. In other words, this branch of law deals with the definition,
regulation and enforcement of mutual rights and duties of individuals. The state intervenes
through its judicial organs (e.g. courts) to settle the dispute between the parties. Private or
Civil law confers civil rights which are administered and adjudicated by civil courts. Much of
the life of a society is regulated by this set of private laws or civil rights. This branch of law can
be further classified into the following:

1. Family law
2. Property Law
3. Contract Law
4. Wills and Estates
5. Tort Law
6. Employment Law

(a) Family Law:

It is a branch of law related to marriage, divorce and succession (inheritance). These laws are
based on religion, ritual and customs of marriage, divorce, and inheritance. In such matters,
people are mostly governed by the Personal laws laid down by their religions. For example,
the marriage of Hindus is governed by Personal laws like the Hindu Marriage Act, 1955 while
Muslim marriages are governed by the Muslim personal law based on a Muslim customary
law which is largely uncodified.

(b) Property Law:

This branch of law deals with the ownership of immovable and movable properties. For
example, the Transfer of Property Act, 1882, deals with transfer of immovable property,
whereas the Sales of Goods Act, 1930, deals with movable property.
(c) Contract Law:

This branch of the law pertains to an area where a person is required to do something because
of his promise, contract or law. It puts an obligation on the person to perform certain actions
which generally arise as a consequence of an enforceable promise or agreement. If someone
violates his promise, that promise may be enforced in a court of law. According to the Indian
Contract Act, 1872, a contract is an agreement which is enforceable by law. In other words, a
contract is an agreement with specific terms between two or more persons in which there is
a promise to do something in lieu of a valuable profit which is known as consideration.

For example, 'A' has offered his mobile phone to 'B' for Rs.15, 000. 'B' agreed to purchase the
same. This has created a legal relationship" both have made a promise which is enforceable
by law.

PRIVATE LAW REMEDIES

The private law classifications of remedies/sanctions include,

 Restitution: The party alleged to have breached the law will have to will have to
restore any matter to the /state condition as of the breach of law had never happened.
 Damages/ Compensation: An amount for the actual damage or loss incurred have to
be paid, as determined by the court.
 Returning enrichment: The party who has benefited unjustly (unjust enrichment) has
to pay back
 Specific Performance: The party has to do or give up something, i.e. specific
performance of the breach.

PUBLIC LAW AND PRIVATE LAW DIVIDE

Essentially, the difference between public law and private law is whether the act or acts affect
society as a whole or an issue between two or more people.
 BASIS PUBLIC LAW PRIVATE LAW

DEFINITION Public law is law governing the Private law governs relationships
relationship between individuals between individuals, such as
(such as citizens and companies) contracts and the law of
and the state. obligations. In countries where it
is known as “common law,” it also
includes contracts made between
governments and individuals.

SUBDIVISIONS Public law includes constitutional Private law includes civil law (such
law, administrative law and as contract law, law of torts and
criminal law. Constitutional law property law), labor law,
considers the relationship commercial law, corporations’
between the state and the law, succession law, family law
individual and between different and competition law.
branches of the state.

AIMS Public Law aims to protect the Private Law seeks to protect only
public interest. private interests.

SANCTIONS For public law penal sanctions are For private law sanction usually
more severe; for example, includes the payment of damages
sanctions exacted for criminal by the defendant to the plaintiff;
activity include fines, sometimes injunctions or specific
imprisonment or death. performance are granted.
 AFFECTED The main parties involved in public The main parties involved in
PARTIES law are the individuals and the private law are the private
state. entities or organizations acting in
the private capacity.

RESPONSIBILITIES Public law is responsible for Private law is responsible for

regulating a harmonious relation regulating the activities between
between the citizens and the two or more private entities in a
state. just and fair manner.

GOVERNING Public law tries to ensure the Private law tries to secure private
AREA public interest of the general interests/freedom of the
population. individuals in the community.

EXAMPLE If you saw a man run from a On the other hand, if your
convenience store with a few neighbour filed suit against you
pilfered products under his arm, because your barbeque smoke
he is violating public law. He travels to his yard, you may be
committed the crime of theft, and violating private law. You
that affects everyone. infringed on your neighbour’s
right to the peaceful enjoyment
of his property.
 CONCLUSION

Public law governs the individual, citizen or corporation, and the state, while private law
applies to individuals. Public law deals with a greater scope, while private law deals with a
more specific scope. Public law deals more with issues that affect the general public or the
state itself, whereas, private law focuses more on issues affecting private individuals, or
corporations

Comparative law is an academic discipline that involves study of legal systems and their
constituent and how they differ and how their elements combine into a system. It helps in
attaining deeper knowledge of the legal systems. It helps in unifying legal systems and in
bringing perfection in them. It helps in understanding administrative setups and their
functioning and helps in making them more efficient.

Comparative Public Law comes with certain drawbacks as well. Firstly, the process of
comparison is a difficult process. To collect material and then to compare laws and legal
institutions of different countries warrants a special kind of aptitude. This is due to non-
availability of material and language issues etc. Moreover, there is no specific method or
format of comparison. The styles of comparative study of lawyers and academicians are
different and the conclusions drawn vary with each other which results into confusion.

To conclude, it is clear that inspite of certain difficulties it is important in today’s world to

have good laws and therefore, to have good laws; knowledge, addition, cooperation and most
importantly comparison with foreign experts and foreign public law methods is necessary.
And this comparison with foreign experts and foreign public laws is possible only because of
Comparative Public Law.