Public vs. Private Law

Public vs. Private Law

• Public Law: Governs the vertical relationship between individuals and public institutions, as well as between institutions. Examples include constitutional, criminal, tax, and international law.
• Private Law: Governs the horizontal relationship between individuals. Includes contract, commercial, labor, and family law. Family law bridges public and private.
• Roman Empire Distinction: Public law served the empire's interests, private law, individual interests.
• Middle Ages Distinction: Focus on Canon Law (religious) versus Secular Law (state).

Public Law (Focus on Constitutional Law)

• Popular Sovereignty vs. Democratic Government: Popular sovereignty has no individual rights or due process; the majority decides actions. Democratic government acknowledges individual rights, limiting public authority and popular will.

Hans Kelsen's Theories

• General Theory of Norms: Validity of norms depends on their form, not content. Norms are the fundamentals of law—statements guiding behavior.
• Stufenbau (Hierarchy of Norms): Norms are validated by higher norms:
  • Grundnorm (basic norm) → Constitution → Powers → Laws → Decrees → Administrative orders and provisions → Contracts.
• Grundnorm: Highest norm, validating the constitution. A theoretical, presupposed concept. It is contentless and universally applicable. The constitution is the will of the people.
• State as Legal Order: A structured collection of norms, not a political entity. The validity of the constitution cannot be proven by the constituent power; Kelsen seeks only legal validity, not factual reality. State is just its laws
• Validity of Laws: Validity doesn't depend on new fundamental norms, constituent powers exercising their will, etc.; Only a collection of legal acts by the state's members; the law is the basis for the people. Statutes derive from, and thus are valid if consistent with, the constitution; invalid statutes are impossible because statutes are only valid statutes.

Carl Schmitt's Theories

• Sovereign as Decider of the Exception: The sovereign decides when and how to use exceptional power.

• Politics and the Friend-Enemy Distinction: Politics is based on defining friends and enemies.

• Constitutional Theory: Constitutionalism is not the product of legal norms—it is generated by political acts.

• State and the Constitution: The state is the constitution (not just a set of laws that it embodies); the constitution defines the state.

• Four Concepts of Constitution:

  • Absolute: Encompasses the whole of the state.
  • Relative: The "soul of polity," enduring beyond governments.
  • Positive: Outcome of a political decision, often expressed in a preamble.
  • Ideal: A polemical view, opposing a past approach. A "never again" constitution.

• Validity of Constitution: Constitution's legitimacy derives from the will of the people. The constitution results from a political decision by the sovereign, who can be a single person or group. Schmitt's theory is political positivism, as valid norms are based on positive acts of the people or state, regardless of morality or inherent justice.

• Amendments: Amendments reduce constitutions to the level of normal laws; they are new political decisions creating a whole new constitution.