Introduction to the Fundamentals of Public and Private Law

Introduction to Public and Private Law

Public and private law are subsets of the legal system.

PUBLIC LAW = branch of the legal system which encompasses rules governing: the organization and the functioning of public powers (Parliaments, central and local governments, courts etc.) and the relationships between public powers and legal subjects. Within these relationships, public law entities exercise their powers towards people who are in a position of submission to such power (criminal law, administrative law, rules governing political rights etc.). Public powers can be described as legal entities that have a power confirmed by the law to be exercised in the public interest.

PRIVATE LAW = branch of the legal system which encompasses rules governing relationships between legal subjects (natural persons and legal entities) acting on the same plan, meaning that no one exercises any power towards any other (law of contracts, law of torts, corporate law etc.).

The distinction between public and private law has a continental European origin: France, Italy, Germany. It is present in the law of the EU; however, it has been unknown to the common law area (UK, Commonwealth countries, USA) until recent years.

In many cases, the two areas overlap, e.g. in the case of consumer protection law, we have:

• Public law provisions: rules of criminal law punishing fraud, rules governing the activities of agencies competent to enforce provisions against false advertising, dangerous products, unfair contractual terms etc.
• Private law provisions: rules governing the effects of fraud on contracts, torts against consumers, rules on unfair competition etc.

The Western Legal Tradition and Models of Democracy

The Western legal tradition is a group of legal systems that are based on the Western idea of rule of law as the foundation of the whole legal order, which is a rule that supports the equality of all citizens before the law and enables us to tell what is law and what isn't.

Rules are a larger set, containing legal rules (rules > legal rules) but also rules that belong to other areas of social regulation such as politeness, morals, religion and culture.

So how can we distinguish legal rules from other rules? Within the Western Legal Tradition, it is the law that tells us which rules are legal and which aren't. The perimeter of the law is defined by the law.

The Western legal tradition also establishes that an act (words) or a fact (behaviors) is a source of the law only if another superior source of the law says so. It's the law that tells you what law is.

And if it's the law that tells us what the law is, we need a "first superior law", which empowers other sources of law.

The power of each source of law cannot come from itself. Otherwise, any entity with a power of rulemaking would become omnipotent.

We need a hierarchy of sources of law, in which the CONSTITUTION represents the highest source of law, empowering lower sources and limiting their powers. (nelle pagine dopo approfondiamo)

What we are interested in is classifying how the demos (citizens) can actually exert the power (kratos) which is bestowed upon it by democratic political theory.

What can the demos do within democracies in all Western legal systems?

• voting
• exercising some form of control over elected officials
• participating in public decision-making procedures
• resorting to judicial remedies

It is necessary to look at different ways of performing such tasks, in order to identify different democratic models.

Democratic Models: US Presidentialism

Voters can express their power through their vote. There are two models, equally venerable and firmly settled: the US presidential model and British parliamentary model.

US Presidentialism Overview

Albeit with many limitations, the Federal US Constitution (1787) is the first authentic and lasting example of a democratic system constitution. It is characterized by a simple principle:

<< We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America. >>

Voters elect both the Congress (legislative branch) and the President (executive branch), therefore they stand on an equal footing from a democratic point of view.

The presidential model is, therefore, characterized not only by the high level of legitimacy of the President (one person and only one, chosen by the whole nation), but also by the interdependence of the two powers and their constant dialectic. Of course, there may be the possibility of opposite political orientations of the two branches, leading to significant risks for the operations of the federal government (e.g. the federal lockdowns).

The presidential model was devised not for a centralized State, but for a federal State. The checks-and-balances, therefore, are not only between legislative and executive powers, but also between centralized (federal) powers and local (State) powers. The US is also a federal State in which powers are apportioned between central (Federal) authorities and local (State) authorities.

The presidential model is "more democratic" than the parliamentary one because voters are given the opportunity to decide not only on who should represent them in Parliament, but also who should lead the executive without needing to receive a vote of confidence from the Parliament. Voters have much more of a say and on some occasions a handful of individual votes may make the difference (e.g. elections of 2000 - Bush or of 2016 - Trump).

However, presidentialism appears to be a model difficult to export. The poor external performance of the presidential model introduces us to a basic principle in comparative law, that of "legal transplants", when legal institutions, processes and solutions are reproduced in a different context. Quite often the result is a rejection because they are not compatible with the body into which they are inserted. This is because law is a social product: if society is different - for historical, political, geographical reasons - the law is too and should be different.

DEMOS CONGRESS PRESIDENT

British Parliamentarism

Voters elect the MPs (Members of Parliament - more specifically of the House of Commons - legislative branch) and the MPs choose the Prime Minister (head of the executive branch)

From the first half of the 18th century, governmental power shifted from the Crown to the parliamentary majority. At the end of the century, a system was gradually set in place by which two parties (the Whigs and the Tories) fought in the election to win a majority in the House of Commons (the House of Lords was for life and hereditary). The leader of the victorious party led the government, receiving the formal title of His or Her Majesty's Prime Minister.

The British model puts Parliament at the center of the constitutional process. Not only has it the power to vote in laws but the fate of the government depends on it. If the government loses its majority because it has been denied a vote of confidence by the Parliament, it falls.

The parliamentary model is the dominant model among Western countries and its success abroad can be attributed mainly to 2 factors:

• Most European countries, which were kingdoms with a very long tradition, were slowly exiting absolutist forms of government and were thus reluctant in conferring too wide powers to a government headed by a single person, and the parliamentary model was more reassuring.
• There was a very strong rhetoric that portrayed voters as transferring their individual sovereign right to Parliament, which thus represented the people's will.

GOVERNMENT PARLIAMENT 1 CITIZENS

The Parliamentary Model in the Italian Constitution

Art. 56 The Chamber of deputies is elected by direct and universal suffrage. The number of deputies is 630, 12 of which are elected in the overseas constituency.

Art. 57 The Senate of the Republic is elected on a regional basis, with the exception of the seats assigned to the overseas constituency. The number of senators to be elected is 315, 6 of 16 whom are elected in the overseas constituency.

Art. 58 Senators are elected by universal and direct suffrage by voters who are 25 years of age. Voters who have attained the age of 40 are eligible to be elected to the Senate.

Art. 83 The President of the Republic is elected by Parliament in joint session. Three delegates from every Region elected by the Regional Council so as to ensure that minorities are represented shall participate in the election. The election of the President of the Republic is by secret ballot with a majority of two thirds of the assembly. After the third ballot an absolute majority shall suffice.

Art. 92 The Government of the Republic is made up of the President of the Council and the Ministers who together form the Council of Ministers. The President of the Republic appoints the President of the Council of Ministers and, on his proposal, the Ministers.

Art. 94 The Government must receive the confidence of both Houses of Parliament. Each House grants or withdraws its confidence through a reasoned motion voted on by roll-call.

The Parliamentary Model in the German Constitution

Art. 38 Members of the German Bundestag shall be elected in general, direct, free, equal and secret elections. They shall be representatives of the whole people, not bound by orders or instructions and responsible only to their conscience. Any person who has attained the age of 18 shall be entitled to vote; any person who has attained the age of majority may be elected.

The second chamber (Bundesrat) is made up of representatives of States.

Art. 54 The Federal President shall be elected by the Federal Convention without debate. Any German who is entitled to vote in Bundestag elections and has attained the age of 40 may be elected.

Art. 63 The Federal Chancellor shall be elected by the Bundestag without debate on the proposal of the Federal President. The person who receives the votes of a majority of the Members of the Bundestag shall be elected.

Semi-Presidentialism

Each country, following its traditions, but also because of historical contingencies, shapes its own model of government. Among the many varieties, we find the semi-presidential model, in which there are elements of both the presidential model and of the parliamentary model.

The President of the Republic (the head of State - executive branch) is elected directly by the citizens, who also elect Parliament (legislative branch), from which the government is issued.

The President retains a number of important and effectively actioned powers, such as designating the Prime Minister, dissolving Parliament, establishing when it is necessary to impose a state of emergency, representing the nation vis-à-vis other countries, and being commander-in-chief of the armed forces.

The remaining executive powers are conferred upon a typical parliamentary government, which must hold a majority in the National Assembly and receive a vote of confidence. In some countries, the President may have limited powers (e.g. Austria).