Advantages and disadvantages of codifing English law Essay Example

can beand unified as follows: Criminal law, which falls under both civil law and public law, is concerned with regulating public institutions and imposing sanctions on individuals or businesses for committing specific crimes. By doing so, society aims to achieve its own form of justice and maintain a peaceful social order. Unlike civil law, which involves disputes between two parties that are not of significant public concern, criminal law deals primarily with actions that have an impact on the broader community. This illustrates the theoretical distinction between private and public law.

A comprehensive discussion exists in German legal literature regarding the exact distinction between public law and private law. Various theories have emerged, which are not exhaustive, mutually exclusive or separate from one another. The interest theory, developed by the Roman jurist Ulpian, states that "Publicum ius est, quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem" (Public law is that which concerns the Roman state, private law is concerned with the interests of individuals). However, this theory is weak because many matters of private law also impact the public interest.

The concept of public interest is often questioned. The subjection theory aims to explain this distinction by highlighting the subordination of individuals to the state. Public law governs this relationship, while private law governs relationships where parties are considered equals. However, the subjection theory falls short in areas like employment law, which is typically categorized as private law but still involves subordination. Moreover, the modern state can be involved in relationships where it is seen as equal to an individual.

The subject theory examines the significance of the law's subject

in a legal relationship. If the subject is a public individual, such as a member of a public entity like a state or municipality, public law is applicable. Conversely, private law applies when the subject is not a public person. By merging both subjection theory and subject theory, one can establish a practical differentiation. According to this perspective, a field of law qualifies as public law when it involves a public authority possessing unilateral power to act (imperium) and utilizing said power within the given relationship.

Simply put, the classification of a public authority as either a public or private entity determines its actions, even when it comes to tasks like ordering office supplies. This theory views public law as a distinct subset of private law. Certain legal areas, like employment law, don't neatly fit into either category. For instance, elements like the employment contract resemble private law, while aspects like workplace safety investigations align more with public law.

The distinction between public and private law has a significant impact on legal practice as it determines the division of competences between courts and administrative bodies. In the Austrian constitution, federal legislation has exclusive authority over private law, while state legislation partially governs public law.