A “Seemingly” Divide between Public and Private Law

by: in Law

What follows is not new in the realm of legal science, but it ought to be remembered, especially in these times when fundamental rights are being challenged in so many different ways. Developments in legal science are very often interconnected. Legal scholars have acknowledged that the traditional division of law into private and public has faded away in many jurisdictions across the globe, already for several decades.

The rights and obligations that relate to public and private actors (and their interests) are intermingling. Private and public law can no longer be considered water-tight compartments. The past century offered a context that welcomed a frequent interplay of private and public law. The divide started to get blurry with the emergence of two phenomena: the privatization of constitutional law and the constitutionalization of private law. The first is sensed within constitutions, while the second is sensed (in civil law jurisdictions) within civil codes. This approach to the “seemingly” divide could offer further perspectives on legal developments that are taking place across the globe.

Privatization of constitutional law. Social constitutionalism paved the path for the privatization of constitutional law, having a strong impact in the area of property law. Indeed, in that area, the divide between public and private faded in the different constitutional texts. The new social ideas were first welcomed in the Mexican Constitution of 1917 and in the Weimar Constitution of 1919. These constitutions included references to the responsibility that derived from the ownership and control of property. Several European jurisdictions adopted the new social ideas in their own constitutions. In the inter-war period, for example, Estonia, Lithuania, Poland, and Spain imposed limitations on individual property in their fundamental laws. Change also took place in the common law wold at that time, for example, when Ireland adopted a new constitutional text. Other European jurisdictions incorporated the social dimension into their post-World War II texts, such as Italy, Portugal, and Yugoslavia. Latin American jurisdictions were not immune to the reception of the new social ideas, hence to the permeability between public and private. Most constitutions there incorporated explicitly the social dimension during the first half of the twentieth century. A contagion of constitutions developed in the region, and increased during the post-World War II period. Examples of constitutions that resulted from that contagion are found in the texts of Argentina, Bolivia, Colombia, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Peru, and Venezuela. The new social ideas represented a mentality that soon predominated across the Western Hemisphere, and the new constitutional texts enabled the percolation of private law.

Constitutionalization of private law. Civil codes offered articulation between public and private law in different areas during the past century. For example, the articulation was sensed between a public law system that defended human rights and equality and a private law system of contract law that offered consumer protection. Civil codes also embraced principles of equality, since the central place in codification was now occupied by the human being who had to be treated equally. A non-discriminatory policy was also present in civil codes and dealt with constitutional protection. When looking again at property law, several codes left behind the liberal ideal of an absolute, unique, and perpetual real right of ownership, and moved towards a social function understanding. The past century experienced a change. The Liberal paradigm of ownership was gradually replaced by one that advocated for the social function of property. The Social Function paradigm spread across continents, and motivated corresponding changes in the wording of constitutions and civil codes, while it also included changes in the interpretation by courts, and in the development of special legislation that advocated for the new approach to ownership. Private law experienced a socialization process that resulted in a less “egoistic” understanding of ownership. There was a blurry divide between public and private law, and the texts of civil codes enabled the percolation of public law.

Awareness on the privatization of constitutional law and the constitutionalization of private law can be of benefit when trying to understand how the law reacts to the needs of societies at different times and places. Public and private law ought not to be considered water-tight compartments, since they only encounter a “seemingly” divide. It is possible to note an interplay of public law principles and their operationalization through private law, and vice versa. After all, developments in legal science are very often interconnected.

By Agustín Parise

  • A. Parise

    Agustín Parise (Buenos Aires, Argentina) is Associate Professor of Law and Chair of the Faculty Council at the Faculty of Law of Maastricht University. He received his degrees of LL.B. (abogado) and LL.D. (doctor en derecho) at Universidad de Buenos Aires (Argentina), where he was Lecturer in Legal History during 2001-2005. He received his degree of LL.M.

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