Interest theory

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The theory of interests is the oldest doctrine to distinguish between public law and private law . It goes back to the following definition of Ulpian :

“Publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem.”

"Public law deals with the conditions of the community, private law with the benefit of individuals."

- Ulpian , Digest 1.1.1.2.

According to this, public law concerns the interests of the state (where Ulpian was referring to the Roman state ), while private law serves the benefit of the citizen.

The supposed advantage of this theory lies in its simplicity. In practice, however, it is useless in many cases: On the one hand, public law also protects private interests, for example where it grants citizens rights. The best example of this are the fundamental rights of the Basic Law , which, as part of constitutional law, undisputedly belong to public law, but do not protect the state, but the citizen and often enough collide with public interests, such as public safety. At the level of ordinary law, too, numerous standards protect private interests; one example is the right to be granted a building permit .

On the other hand, private law also serves public interests, for example one purpose of private law maintenance claims is to protect the public coffers from costs. The public administration also acts partly in forms of private law , but nevertheless in the public interest, for example if a municipality organizes its public utilities in the legal form of a stock corporation ( legal entity under private law ).

See also

literature

  • Jörn Ipsen : General Administrative Law , Carl Heymanns Verlag, Cologne ea 2000, ISBN 3-452-24547-0 , Rn. 16 ff.
  • Hans Kelsen : Works. Edited by Matthias Jestaedt. In cooperation with the Hans Kelsen Institute. Mohr Siebeck, Tübingen 2007 ff., ISBN 978-3-16-149420-8 ., On the teaching of public legal transactions (1913) , p. 247 ff (especially p. 251, note 16).
  • Paul Posener (Ed.): Legal Lexicon, Concise Dictionary of Law and Political Science, Volume II: LZ , Erich Weber Verlag, Berlin 1909, keyword private law and public law.

Individual evidence

  1. ↑ Christian Ernst , Jörn Axel Kämmerer : Cases on General Administrative Law , 3rd edition, Munich 2016, p. 7.
  2. ↑ Hans Kelsen : Works. Edited by Matthias Jestaedt . In cooperation with the Hans Kelsen Institute. Mohr Siebeck, Tübingen 2007 ff., ISBN 978-3-16-149420-8 , p. 251 (note 16).