Public law (United States)
The existence of a separate legal area public law ( English Public Law ) is the law of the United States debated for more than 100 years. In any case, the practically unanimous view does not grant the term the classifying character that public law has in the continental European countries with Franco-German characteristics.
There is no independent jurisdiction, at the academic level there is no common division of the subject matter into public law and private law: in the indices of the Corpus Juris , the Corpus Juris Secundum , American Jurisprudence , American Law Reports and the American Digest there is neither public nor public private law . The expression is mostly used for the thematic summary of constitutional law and areas similar to administrative law (regulations, administrative law ) . Public law ways of thinking are most likely to be found in the field of political science.
Historical reasons
The law of the United States is based today on the English common law , albeit with modifications specifically American. To this day, this also has no independent public law in the continental European sense. The reason for this is, on the one hand, the small influence exercised by Roman law thinking in England: this was well known to the division into private law and public law. Furthermore, English law lacked a legal concept of the state : the state was identical to the monarch. The feudal structure of English land law made it impossible to gain meaningful knowledge from the separation of private law and public law: because then all law had to be either public law or private law. English law developed without the dichotomy and there was no need to give up the structure that had grown over centuries for no reason.
The rights and privileges of the crown formed the core of constitutional law ; in the same way, criminal law was taught as an independent field of law. However, these were only understood as useful thematic summaries rather than areas with a classifying effect: it was irrefutable that the overarching method formed the case law method of common law . Administrative law , which is typical for public law thinking, was unknown:
"In England, and in the countries which, like the United States, derive their civilization from English sources, the system of administrative law and the very principles upon which it rests are in truth unknown."
Methodical reasons
The continental European legal culture differs fundamentally from that of the Anglo-American legal system . The continent's legal systems arose from Roman law taught at universities. The academic-professorial character of this legal science led to a highly technical and sophisticated system formation according to formal-logical criteria with sharp-edged definition of legal terms ( term jurisprudence ), especially in 19th century German pundit science . Almost inevitably, this had to lead to a supposedly clear delimitation of public and private law.
In contrast to this, common law is a right of practitioners, even from its idea of judicial law. Right up to the present day, law has played a completely subordinate role. Textbooks were mostly written by judges until the end of the 19th century. The reasonig from case to case resisted any generalization and system formation that was of no use for the decision of a case. In the 20th century, too, sociological currents such as American legal realism dominated the United States . So writes Roscue Pound:
“The term [public law] is not in our digest. One who looks for it in the literature of the common law will look in vain. "
Theory of separation of powers
The separation of powers never found its expression in the American constitution as it did in France after the revolution. With the creation of a clearly definable third power, the executive , the hour of modern administrative law was born. Of course, this also had to be checked for errors in law enforcement. However, it appeared to contradict the separation of powers to entrust this review to the ordinary judiciary. Separate courts had to be created within the administration, the administrative courts. In contrast, the doctrine of the separation of powers never prevailed in the USA. Their place in the system of checks and balances has taken its place . Therefore, no administrative jurisdiction arose that would have made a delimitation of public law necessary. Rather, one associated with a separate administrative jurisdiction not the preservation of the rights of the citizen, but the fear of an own special right of the administration and their privileges.
literature
- Oliver Lepsius: Administrative Law under Common Law: American Developments up to the New Deal . Mohr Siebeck, Tübingen 1997, Chapter I, 1. c).
- John Henry Merryman: The Public Law-Private Law Distinction in European and American Law . In: Journal of Public Law (Emory Law Journal) . tape 17 , 1968, p. 3-19 .
- JWF Allison: A continental distinction in the common law: a historical and comparative perspective on English public law . OUP, Oxford 2000, ISBN 0-19-829865-X .
- Morton J. Horwitz: The History of the Public / Private Distinction . In: University of Pennsylvania Law Review . tape 130 , no. 6 , June 1983, pp. 1423-1428 .
Individual evidence
- ^ A b c d e John Henry Merryman : The Public Law-Private Law Distinction in European and American Law . In: Journal of Public Law . tape 17 , 1968, p. 3-19 .
- ↑ Oliver Lepsius: Administrative law under the common law: American developments up to the New Deal . Mohr Siebeck, Tübingen 1997, p. 23 .
- ^ Bernard Schwartz: French Administrative Law and the Common Law World . 1954.