Private and public law

2019 ◽  
Keyword(s):  
Public Law ◽  
Private And Public

Private and Public Law

2020 ◽  
pp. 574-592
Author(s):  
Thomas W. Merrill
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Law ◽  
General Criterion ◽  
The Public ◽  
Private Ordering ◽  
Public Rights ◽  
Private And Public ◽  
The Relationship ◽  
Derivatives Of

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

‘Were it not against our laws’: oppression and resistance in Shakespeare's Comedy of Errors

Legal Studies ◽  
2009 ◽  
Vol 29 (2) ◽  
pp. 230-263 ◽  
Author(s):  
Eric Heinze
Keyword(s):  
Early Modern ◽  
Public Law ◽  
Legal Norm ◽  
Private And Public ◽  
Parent Child

The Comedy of Errors, always loved on the stage, has long been deemed less substantial than Shakespeare's ‘mature’ works. Its references to private and public law have certainly been noted: a trial, a breached contract, a stand-off between monarchical and parliamentary powers. Yet the play's legal elements are more than historical curios within an otherwise light-hearted venture. The play is pervasively structured by an array of socio-legal dualisms: master–servant, husband–wife, native–alien, parent–child, monarch–parliament, buyer–seller. All confront fraught transitions from pre-modern to early modern forms. Those fundamentally legal relationships fuel character and action, even where no conventionally legal norm or procedure is at issue. ‘Errors’ in the play serve constantly to highlight unstable and shifting relationships of dominance and submission. Law undergoes its own transition from feudal–aristocratic to commercial forms. Through a theatrical framing device, it thereby re-emerges to remind us that those dualisms, even in their new incarnations, will remain squarely within law's ambit.

scholarly journals Ensuring Guarantees of the Rights of the Individual and the Inalienability of his Legal Status in the System of Legal Regulation

2021 ◽  
Vol 1 ◽  
pp. 21-29
Author(s):  
Alexander Vladimirovich Konovalov ◽  
Keyword(s):  
Rule Of Law ◽  
Legal Status ◽  
Legal Regulation ◽  
Public Law ◽  
Synergistic Action ◽  
The Rule Of Law ◽  
The Core ◽  
Private And Public ◽  
The Individual ◽  
Different Levels

The article is devoted to the analysis of the general principle of law — ensuring guarantees of individual rights and the inalienability of his legal status. According to the author, they are provided by the synergistic action of private and public law regulation. The article convincingly shows that private and public law is a single system of values with different levels of generalization of terms and different methodology. At the same time, it is the private legal mechanisms that are the basis, the core of the rule of law.

Options for Applying Functional Overlapping Competing Jurisdictions (FOCJs) for Municipal Cooperation in Russia

2017 ◽  
pp. 73-107 ◽  
Author(s):  
Peter Friedrich ◽  
Mariia Chebotareva
Keyword(s):  
Public Service ◽  
Service Provision ◽  
Public Law ◽  
Public Enterprises ◽  
The Third ◽  
Political Environments ◽  
Public Service Provision ◽  
Service Activities ◽  
Private And Public ◽  
Legal Forms

Municipal cooperation is important for transformation countries, like Russia, which have to develop legal, institutional and political environments for public service activities. The authors recommend FOCJs as an instrument for coordinated municipal public service provision. To determine the suitability of FOCJs the analyst has to investigate the relation between FOCJ theory, their financing possibilities, the fiscal effects, and the legal forms in which FOCJs can operate in Russia. The authors define several forms of FOCJs and sort out appropriate public enterprises of private and public law for Russian FOCJ. To analyse the establishment, the operations, and the competition between FOCJs the authors present three types of models. One relates to the establishment of an FOCJ, the second concentrates on financing service activities, and the third model deals with competition among FOCJs and demonstrates the effects of different ways of finance. The article concludes with elaborating recommendations for financing FOCJ under conditions in Russia.

Enforcement

2021 ◽  
pp. 237-258
Author(s):  
Eva Micheler
Keyword(s):  
Public Law ◽  
Third Parties ◽  
Normal Process ◽  
Minority Shareholders ◽  
Public Enforcement ◽  
Private And Public ◽  
The Law

This chapter studies the rules governing the enforcement of the duties imposed on directors, distinguishing between private and public enforcement. Directors owe their duties to the company and so the company is responsible for enforcing these duties. The law prefers such litigation decisions to be taken by the company through its normal process. The courts only interfere if that process cannot be made to work independently of the wrong-doers. It is unlikely for a derivative claim to succeed against the wishes of an independent majority and so it is right to observe that the shareholders are the main focus of the law. But here too the law is more nuanced and integrates the interests of minority shareholders and creditors. The duties of the directors are also enforced through the means of public law. The chapter then shows that public law sanctions particularly attach in relation to duties that enhance the interest of third parties interacting with the company. This leads to the conclusion that these interests are at least formally better protected than those of the shareholders.

Euro As Legal Tender (and Banknotes)

2020 ◽  
Author(s):  
Robert Freitag
Keyword(s):  
European Union ◽  
Euro Area ◽  
Public Law ◽  
Legal Certainty ◽  
Public And Private ◽  
Legal Tender ◽  
The Core ◽  
National Currencies ◽  
The Status ◽  
Private And Public

The provisions governing the euro as ‘European Single Currency’ are at the core of the Treaty on the Functioning of the European Union’s (TFEU) rules on the Economic Monetary Union (EMU). Since the euro has replaced the former national currencies of the participating Member States and is to substitute the national currencies of any future members of the euro area, it was mandatory to ascribe to the euro the status of exclusive ‘legal tender’ as per Article 128(1) TFEU. This status of the euro seems to be so evident as to be self-explanatory–but only at first glance since the concept of ‘legal tender’ and its implications in European Union (EU) and national private and public law are less clear. A satisfactory concept of legal tender is hard to define and hardly ever given on the EU level–resulting in a striking lack of legal certainty in a great variety of aspects of public and private law.

Improperly Collected Taxes: The Border Between Private and Public Law

2010 ◽  
Vol 23 (1) ◽  
pp. 125-161
Author(s):  
Sagi Peari
Keyword(s):  
Public Law ◽  
Legal Philosophy ◽  
Current Status ◽  
Private Law ◽  
Alternative Framework ◽  
Private And Public ◽  
Constitutional Right ◽  
Normative Rule

In recent years, Professor Birks’ doctrine of constitutional right to restitution has become a new normative rule with respect to the issue of restitution of improperly collected taxes. Nevertheless, the new doctrine has puzzled academic scholars. Profound questions regarding the conceptual “private law-public law” location of Professor Birks’ doctrine and the current status of traditional law doctrines have arisen.This study challenges Professor Birks’ doctrine and demonstrates that despite its universal adoption, the doctrine was based on weak premises. Furthermore, based on Professor Weinrib’s legal philosophy, this study develops an alternative framework to analyze the issue of improperly collected taxes. The study shows that the “private-public” puzzle and the doctrines traditional to improperly collected taxes may be coherently explained within this legal philosophy.

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