PUBLIC AND PRIVATE LAW

The Continent is familiar with a sharp distinction between public and private law: lawyers are asked the routine question whether they are publicists or privatists. By contrast �the com­mon law is still seen as indivisible in the sense that it applies both to the government and the individual citizen, and the same courts deal with both public and private law’.^[43] It is, in principle, an attractive idea that the government and its officials are under the same law and the same courts as the citizen: what could more clearly demonstrate the notion that both the governors and the governed have to live under the same rule of law? No separate administrative tribunals for the wrongdoings of the ad­ministration and ordinary courts for the citizenry, but one single network of courts for the mighty as well as the ordinary folk, manned by the same judges! In England, so the classic doctrine goes, the ordinary courts are competent for the judicial review of acts of administration: the officials of the state do not constitute a separate, privileged class.

As soon as one opens Justinian’s Institutes one is confronted with the major distinction between ius privatum and ius publicum: in ancient Rome there was a law which applied to the relations between the citizens and another law which applied to the state and its organs. The distinction was lost in the early Middle Ages, together with the Roman empire itself. It predictably resurfaced when the Corpus iuris was discovered and studied in Bologna and elsewhere in the West, but it made only very slow headway in the consciousness of the courts and political circles. And even when public law came of age, doctrine was for a long time — possibly until the eighteenth century - dominated by private law (which admittedly had been the field of predilection of the great jurists of the classic era, whose writings were preserved in the Digest).

It is not the case that because the distinction occurs in the lawbooks it is merely of academic interest. It went much deeper than one of those learned and subtle distinguo^,s which the schools loved so much, because it had political overtones. The bour­geoisie wanted to mark the ius privatum as a safe territory for the citizen, where he had a free run, away from the structures and demands of the ius publicum - hence its status and popularity in the nineteenth century. But in twentieth-century communist lands, where the fate of the individual was not a priority, public law became all-important. It dwarfed private law to the point that the category had to be rediscovered in what has been called a renaissance of the privatrechtliche KulturP Until not so long ago pri­vate law enjoyed the greater prestige in the Law Faculties and I remember how students of my generation looked up to the great professors of droit civil and had little time for their unfortu­nate colleagues who had to teach constitutional and, even worse, administrative law, whereas criminal law had little intellectual

Qfhistoricaljurisprudence: Coke, Selden, Hale’, YaleLawJournal 103 (1994), 1651 — I 738.

⁹ See the article by Milan Kundera in the New YorkReviewofBooks of 21 Sept. I 995, who talks on p. 24 of an â€?old revolutionary utopia...: life without secrets, where public life and private life are one and the same’.

prestige, as it was perceived as a catalogue of crimes and pun­ishments. It is no coincidence that legal history traditionally focused its attention on private law — I see, for example, no criminal equivalent of Wieacker’s Privatrechtsgeschichte or Coing’s Europaisches Privatrecht, to mention two outstanding products of twentieth-century legal history.^{[47] [48]} Nor is it a coincidence that Coing’s encyclopaedic Handbuch is dedicated to private law, as the very title makes clear.¹¹