Principles of Private Law: Distinguishing Public and Private Law

Principles of Private Law

Traditionally, private law governs interactions between individuals and private entities, ensuring that parties engage on equal footing. This fundamentally distinguishes it from public law, where the state acts in an authoritative capacity. For example, in contract law, both parties enter an agreement as equals, whereas in public law, the state exercises its authority over individuals. Similarly, criminal law falls within the domain of public law, as it is enforced by the state, with the use of force being an essential element of state authority.

Even when the state participates in a private law transaction, it does so without asserting authority, maintaining equality with other parties. Private law lies at the core of the legal system, shaping both its legal and economic direction. Before the 17th century, law was not strictly tied to territorial sovereignty. Instead, private law was legitimized through intellectual prestige rather than political power. Roman law, for instance, was widely applied across Europe not because it was imposed by rulers but because of its recognized authority as a sophisticated legal system. This intellectual legitimacy contributed to a degree of legal uniformity across Western countries.

At the heart of capitalism is property, which is the foundational institution of private law. Western civil codes place property at their center, with capital being exchanged through contracts. In legal terms, property is distinct from a physical good-it represents the legal title to an asset. The mechanism of the market operates through the interplay of property and contract, allowing wealth to circulate and be reinvested.

Since the financial resources required to sustain capitalism are vast, inheritance plays a crucial role in family law, particularly in promoting economic continuity and addressing principles of equality. Ultimately, private law remains the cornerstone of any economic system, structuring the legal frameworks necessary for wealth creation, transfer, and reinvestment.

Civil Codes

Historically the idea of civil codes is related to the overcoming of feudalism in continental Europe. At some point the French revolution introduced the idea that the bourgeois were tired of the nobility. The nobles had the political power and in this moment the bourgeois claimed also this power because they had the majority of economic power. This brought about a posterius ideology on how the law should work, based on the fact that it should be administered not in the name of the crown but it should have been something created by the people through political representation, understandable for everybody. Therefore there was a lot of fear of the judges, because they acted in the name of the crown, being its representatives. People needed to have a parliament which enacts laws and the judges simply apply them. Thus this ideology went of the label that the judge is la bouche de la loi. This is a not truthful ideology. In continental Europe, for this, there is a major importance of written law. This idea went together with the notion that the most important branch of the law, private law, had to be into a document which had to be accessible and understandable by everybody, kinda like a new bible for the society. This documents needed to be complete and consistent, differently from what happened in the middle ages, and this were the new civil codes. These documents started too exist and to be widespread around Europe. The most important one is historically the code Napoleon, which is still used in France and Belgium (undergoing changes).

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Legal Rules

A legal rule changes a lot throughout history, cultural approaches and theories. Natural law deals with morality and to some extent with justice. Positive law is defined through two views:

• Overlapping between justice, nature and law. Law finds the ultimate pattern into justice, a legal rule needs to be respected as it is legitimate and just. But what defines justice?
• Legal positivism, the idea that what defines a legal rule is whether this is enacted through a procedure and from a subject that has the power to do so. Following a specific procedure enacts, thereof, these rules. Legal positivism states that the subject, the state, enacts the rules that need to be respected because they are legitimized by an authority. However, we don't see 1Gioia Verzini here any justice, we have a trade between certainty and fairness, but how do owe make sure that a use is just?

The very etymology of the word "law" across different languages reveals an inherent ambiguity. In Latin, for instance, ius and lex are often used interchangeably, but they carry distinct meanings. Ius refers to justice or what is right, while lex denotes the written law or legislation-rules legitimized by authority or power. Law, ideally, should reflect justice (ius), but in practice, it often rests on the authority of lex, even when unjust.

This tension was starkly evident during World War II, when members of the Nazi and fascist regimes defended their actions at the Nuremberg Trials by claiming they were merely following the law. Their actions, though legally sanctioned at the time, violated fundamental principles of justice.

This raises a crucial question: how do we balance the need for legal certainty with the necessity of moral judgment and flexibility? In legal systems grounded in positivism-where the legitimacy of a rule derives from its source, not its content-this tension becomes particularly challenging. To address it, constitutions often embed fundamental values intended to guide the interpretation and creation of laws, ensuring they serve justice as well as order.

One approach to reconciling law and justice is to incorporate ethical principles directly into the lawmaking process. Another, more radical method is to challenge unjust laws through acts of civil disobedience-deliberate, nonviolent violations of the law meant to expose injustice and advocate for legal reform. Historic examples include Rosa Parks' defiance of segregation laws and resistance movements against apartheid.

Such actions rely on legal systems that allow some space for dissent rather than repressing it entirely. This tolerance creates a degree of flexibility, allowing the law to evolve and better align with justice over time.

What makes a legal rule one is the fact that it needs to be structured in a certain way. A rule that just tells you what you should or shouldn't do isn't a rule if it hasn't have a legal effect. If clause -> where a certain state of affairs comes into play then there is a legal effect/ consequence. All legal rules can be broken up in this way. The factual part of a proceeding is to asses a correspondence between what happened in a situation and what is written in a rule. This clause is usually said or should be abstract and general, the if clause is predicated and needs to be general. This means that all the situations that fall between this clause need to have the same consequence. A legal norm is applicable to any momentum in a situation. Normally rules apply to anybody and anything if they find themselves into a situation. This ascertain EQUALITY within a legal system. It doesn't mean that a rule cannot differentiate treatment. For example we don't pay taxes all at the same level. The law divides reasonably people into categories, as long as it does that the principle of equality is respected.

We can find, in the realm of norms, two types of creatures:

• Legal rules -> prescribe a specific conduct
• Principles -> prescribe an attitude

Principles are different, namely embedded in legal texts or acts, because they are fuzzy and elastic statements made and put into the legal system's values. They have a legal force but are more structured as values, human dignity for example is a legal principle. The concept of good faith it's a principle, it is not structured as a norm, many rights are principles. What is the consequence? The difference stays in what happens when there is a conflict. A conflict between rules is solved by one or another, both cannot coexist. When it comes to principles, they usually coexist and need to be balanced; conflicting principles have always existed, for example dignity and free speech, one can be balanced and the other disregarded.

Functions of Principles

• Interpretative function -> they represent a systematic basis and substantial explanation of the legal rules set by the legislator
• Supplementary function -> fill gaps in a legal system
• Corrective function -> can call into question the validity or effectiveness of another legal norm. 2Gioia Verzini

Legal System Structure

How is a legal system structured?

A legal norm is such if above it has another norm that recognizes it Kelsen's pyramid, in each level we have secondary rules that explain the making of the ones above it.

1. Constitution
2. Legislation / precedent / civil codes
3. Regulations

If every step legitimizes the other, we need to find a justification for a legitimization out of the system. For Kelsen it is the Grundnorm, a constituent power and recognition in the legal system. The law provides for a regulation for it to be done. In common law we have the principle of stare decisis that basically orders hierarchically the sources. The EU member states have a systems of interplay between two different pyramids.

The centrality of civil codes has been crucial in the understanding of law in continental Europe. The pyramid of EU law is:

• Treaties funding the EU, some type of constitution
• Directives or regulations (secondary norms), these are basically the legislation of the union. Relationship of competency.

Legal norms are basically the proposition that need to be respected as law: legal rules and principles. A legal system needs to be consistent, it needs to not have contradictions, the judge have to apply only a correct law. A legal system is complete, we always have a rule for a state of affairs. The idea of these assumptions is that each legal system has a way to overcome both situations of lacks or voids as well as conflict.

Overcoming Legal Lacks

For example aviation, where there are no rules, was usually regulated by the law of the sea. We apply rules that are normally regulating a similar subject, this is called analogia legis. We apply a state of affairs applied to similar cases. But there might be cases, which are singularly made, so we have to switch to finding rules through principles, analogia iuris. An important case in Italy was the one of Eluana Englaro, where she expressed the will to proceed with euthanasia if she ever found herself in that situation.

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The legal order is

• Consistent
• Complete

More than being true facts, the assumptions are indications to the judges. A judge cannot disregard the case because a rule doesn't exist (non liquet).

When there is a legal lack we have several options to solve it -> analogy :

• Analogia legis -> relay on similar norm
• Analogia iuris -> relay on principle

Analogy cannot be applied always, sometimes it is forbidden. For example, in the case of the selling of legal weed (little amount of THC). Selling weed is a criminal offense and it is specifically provided by the law that selling it prohibited, when they discovered legal weed, they started selling it. Applying analogy to light weed would mean that the sellers would go to jail, since there is a law against the selling of drugs. Analogy CANNOT BE APPLIED TO CRIMINAL LAW.

Private law, normally doesn't put a sanction on conduct, therefore analogy can, in most cases, be applied. Criminal offenses can never be applied analogically.

A legal system is normally complete. When in criminal law is a legal lack, the case can be solved, in private law applies analogy.

The legal system is consistent, although there could be conflicting principles. When there is a conflict between rules, there is antinomy. Antinomies may be solved by secondary rules 3