Remarks on the philosophy and politics of public law

Legal Studies ◽  
1998 ◽  
Vol 18 (2) ◽  
pp. 177-187 ◽  
Author(s):  
Günter Frankenberg
Keyword(s):  
Public Law ◽  
The State ◽  
Law Students ◽  
Private Law ◽  
Constitutional Rights ◽  
Scientific Interest ◽  
The Public ◽  
Administrative Courts

To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law.In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.

Realising the Public Potential of Corporate Law: Twenty Years of Civil Penalty Enforcement in Australia

2014 ◽  
Vol 42 (1) ◽  
pp. 1-22 ◽  
Author(s):  
Michelle Welsh
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
The State ◽  
Corporate Law ◽  
Private Law ◽  
Primary Role ◽  
The Public ◽  
Enforcement Mechanisms ◽  
Civil Penalty

Traditionally corporate law has been viewed as having characteristics that are commonly associated with private law. Largely this view developed as a result of the “law and economics” scholarship which dominated the corporate law debate, especially in the United States, in the last quarter of last Century. While the traditional “law and economics” approach supports the view that corporate law should be treated as a branch of private law, and that the state should have no role in its enforcement, other scholars, particularly those that adopt a progressive approach, argue that corporate law has, and should be recognised as having characteristics that are usually associated with public law. Arguably, an area of Australian corporate law that displays characteristics that are usually associated with public law is the statutory directors’ duties and the civil penalty regime that supports them. This enforcement regime gives the state through the corporate regulator, standing to take court based proceedings to enforce what are in effect, contracts that established corporate governance structures. This article seeks to determine the appropriate role of a public regulator in these circumstances. The questions considered are: whose interests should the public regulator represent when it is tasked with the responsibility of enforcing the statutory directors’ duties that largely codify fiduciary and common law duties? Given that the duties are owed by directors to their company should the primary role of the public regulator be to represent the interests of the company, and its shareholders, who have suffered a loss as a result of the alleged contravention of the directors’ duties or should the primary role of the public regulator be to act in the interests of the members of the larger community? In these situations what are the interests of the larger community? Drawing on regulatory theory the argument advanced in this paper is that despite the fact that the statutory directors’ duties codify what are in effect private rights between directors and their companies, the primary role of a public regulator is not to utilise the enforcement mechanisms at its disposal in order to obtain compensation for companies who have suffered a loss. Rather, the regulator's primary role is to act in the interests of the larger community by utilising the enforcement mechanisms at its disposal strategically in order to encourage greater compliance.

scholarly journals Virtual Origins of Public Law

Lex Russica ◽  
2021 ◽  
pp. 9-22
Author(s):  
I. A. Isaev
Keyword(s):  
Public Space ◽  
Legal Regulation ◽  
Public Law ◽  
The State ◽  
The Political ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
Political Landscapes ◽  
Private Individual

The paper analyzes the main processes that gave rise to such a phenomenon as “public law”. The problem of public law is one of the fundamental problems of jurisprudence. A classical dichotomy of public and private law will never lose its significance, and the search for their harmonious interaction only heightens the interest of thinkers around the world in this issue. We should agree that addressing such issues is always secondto-none, as it gives grounds for the development of the best legal regulation acceptable for a particular society. The very notion of “publicness” has gone a long way to finally gaining a foothold in the political and legal lexicon. In the Digestas of Justinian, the famous Roman jurist Ulpian writes: “Public law, which (refers) to the position of the Roman state, private law, which (refers) to the benefit of individuals; there is the useful for the society and the useful for a private individual. Public law includes the sacreds (sacra), the ministry of priests, the position of magistrates” (D.1.1.1.2). Thus, from the ancient Roman forum through medieval corporations to the political parties of modern times, the public space was certainly controlled by the state in some way or another. It was the intervention of the state in the private sphere that determined the nature of “public” in general and public law in particular. These processes have defined both modern political landscapes and the system of public legal institutions. Although, to a large extent, the motivations that affected the formation of public law were dogmatic, formal and virtual, or imaginary in nature, their influence adopted quite real features and led to practical political and legal consequences.

User Property, User Rights, and User Privileges

2017 ◽  
Author(s):  
Pascale Chapdelaine
Keyword(s):  
Public Law ◽  
Copyright Law ◽  
Future Application ◽  
Private Law ◽  
The Public ◽  
Freedom Of Contract ◽  
Competing Interests ◽  
Regulatory Changes ◽  
Law And Policy ◽  
User Property

This chapter proposes two principles that should inform the development of copyright law and policy and of user rights. The first calls for more cohesion between copyright law, private law, and public law, and for less exceptionalism in copyright law. The second requires that the balance in copyright law be adjusted for its future application as a mediation tool between the competing interests of copyright holders, users, intermediaries, and the public. Instituting positive obligations for copyright holders in relation to users and steering freedom of contract toward the objectives of copyright law are necessary regulatory changes to rectify ongoing imbalances. The principle of technological neutrality should guide the judiciary in its application of copyright’s objective of promoting a balance in copyright law. The proposed guiding principles lead to the creation of a taxonomy and hierarchy of copyright user rights that take into account the myriad ways users experience copyright works.

Private and Public Law

2020 ◽  
pp. 574-592
Author(s):  
Thomas W. Merrill
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Law ◽  
General Criterion ◽  
The Public ◽  
Private Ordering ◽  
Public Rights ◽  
Private And Public ◽  
The Relationship ◽  
Derivatives Of

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

scholarly journals The General Characteristics of Extremism and Analysis of the Current State of the Fight Against Extremist Crimes

Legal Concept ◽  
2020 ◽  
pp. 13-20
Author(s):  
Svyatoslav Biryukov ◽  
Mikhail Bobovkin ◽  
Mikhail Shmatov
Keyword(s):  
The State ◽  
Law Students ◽  
Teaching Staff ◽  
General Description ◽  
Public Response ◽  
The Public ◽  
Current State ◽  
Quality Of Protection ◽  
Natural Tendency ◽  
The One

Introduction: the Constitution of the Russian Federation and other Federal laws in this country guarantee the protection of the population against crimes, including criminal attacks of extremist orientation. However, recently there has been a steady trend towards an increase in the number of committed crimes of extremist orientation, which determines the need to improve the quality of protection of individual rights, and along with them, the constitutional framework of the state, since demonstratively committed extremist crimes cause a great public response and contribute to the undermining of state power. The crime statistics show a significant increase in the number of extremist crimes; there is a natural tendency to spread the ideas of extremism among the population. Unfortunately, only some of the extremist crimes are counted as such in the official statistics. The crimes of this category are often registered without taking into account the qualifying feature – the motive of national, racial, religious hatred or enmity, and, as a result, are not considered in the group of crimes of extremism. Another reason for not fully accounting for these crimes is their latency: not all victims of such criminal actions declare this for various objective and subjective reasons. The public danger of crimes of the group in question is due, on the one hand, as usual, to their group character, and on the other hand, such illegal actions incite interethnic and other hatred, which is very harmful in the context of the efforts being made to build a civil society. Currently, the legislative bodies do not clearly pay enough attention to the organization of counteraction to extremism as an anti-social phenomenon. For example, over the past ten years, the problems of countering extremism have been resolved through the adoption of only four normative legal acts of a national nature. In this regard, the authors aim to give a general description of such a phenomenon as extremism and the state of the fight against such crimes. Methods: the methodological framework for this research is a set of methods of scientific knowledge, among which the main ones are the methods of information processing and logical analysis, synthesis, induction, deduction and generalization. Results: the authors’ content of the general characteristics of extremism and analysis of the current state of the fight against crimes of extremist orientation actualizes the problem of the need to improve the state of the theoretical base, prepare recommendations based on it, which would contribute to improving the efficiency of the state authorized bodies in the fight against various manifestations of extremism, and primarily in order to solve and investigate crimes of extremist orientation. Conclusions: the study has given the general characteristics of extremism and the analysis of the current state of the fight against extremist crimes in order to inform law students, and the teaching staff of law schools and practitioners to better understand the characteristics and dangers of this phenomenon.

scholarly journals Public Interest Opposite the Freedom of Contractual Will in Administrative Contracts in the Republic of Albania

2017 ◽  
Vol 6 (s2) ◽  
pp. 37-48
Author(s):  
Artan Spahiu
Keyword(s):  
Public Interest ◽  
Legal Framework ◽  
The State ◽  
Private Law ◽  
Legal Analysis ◽  
Administrative Contract ◽  
The Public ◽  
General Arrangement ◽  
Role Of The State ◽  
The Republic

Abstract The protection of the public interest is the main principle governing the activity regulation of the administrative bodies. This activity, traditionally, has been developed through administrative acts, as an expression of the unilateral and authoritarian willpower of public authority, which creates legal consequences. The administrative act has been and remains the most important instrument for the administration bodies to accomplish their mission, but it is no longer effective. Particularly this lack of efficiency is noticed in recent years when the development of the economy and the needs of the evergrowing society have prompted the administration to adapt its activity by making use of other mechanisms “borrowed” from private law. An important part of public activity can also be achieved through the contract as a way that brings the state closer to the private, mitigating its dominant position and leaving space for the efficiency of private activity to fulfil public engagements. Such contracts today are known as “administrative contracts” or “public contracts”. The terms mentioned above are instruments that establish legal relations, for the regulation of which the principle of public interest is opposed and competes with the principle of freedom of the contractual willpower. The regulation of these types of contracts is reached through the private law, which constitutes the general normative framework of contracts (lex generalis) even for the administrative contracts. But this general arrangement will have effect for as long as it does not contradict the imperative provisions of the specific act of public law (lex specialis), which regulates the administrative procedure for the completion of these contracts. This paper aims to bring to the spotlight the way our legislation predict and regulates administrative contracts, by emphasising particularly the features of their dualistic nature. The coexistence and competition of the principles of the freedom of contractual willpower and the protection of the public interest, evidenced in administrative contracts, is presented in this paper through the legal analysis of the Albanian legal framework which regulates these contracts. Under the terms when the role of the state in providing public services tends to increase and our legislation aims the harmonization in accord with the European legislation, it is necessary to improve the administrative contract regulation and extend its scope of action.

scholarly journals Prawnofinansowy status Agencji Nieruchomości Rolnych

2017 ◽  
pp. 119-134
Author(s):  
Wojciech Fill
Keyword(s):  
Public Finance ◽  
Public Sector ◽  
The State ◽  
Significant Part ◽  
Private Law ◽  
Financial Status ◽  
Legal Personality ◽  
The Public ◽  
Executive Agencies ◽  
The Impact

The legal-financial status of the Agricultural Property Agency is complex. Rights and obligations of the financial nature of the public are interspersed with numerous powers and duties of the sphere of private law. Specific elements shaping financial status Agency are organizational relationship and the capital of other legal entities, including primarily with the Treasury and the companies controlled by the Agency. They occur in the context of normative pass Agency to the public finance sector and its companies to the category of public sector entities. In view of the takeover by the executive agencies, a significant part of the tasks previously performed by the state without legal personality, budgetary establishments, precisely in this area normative appeared completely unique opportunity to examine the impact of the construction of legal personality to changes in the shape of subjectivity.

scholarly journals Procedural features of consideration of social cases in the administrative court of first instance

2020 ◽  
pp. 49-59
Author(s):  
Vasyl Ilkov
Keyword(s):  
Key Words ◽  
Social Function ◽  
The State ◽  
Public Authorities ◽  
The Public ◽  
The Social ◽  
High Figure ◽  
Administrative Courts ◽  
Administrative Code ◽  
Court Of First Instance

The article is devoted to procedural features and evidence during the consideration of social cases. The share of administrative lawsuits received by district administrative courts in social cases is more than 30%, which is a high figure among cases falling under the jurisdiction of administrative courts. A person goes to court when his right has already been violated by the state authorities. The administrative courts ensure the implementation of the social function of the state. Allegations that administrative courts serve public authorities are unfounded. Evidence of the court is provided by the parties to the case. The court can only invite the parties to provide evidence and collect evidence on their own initiative. The principle remains fundamental, in cases of illegality of decisions, actions or omissions of the public authorities, the burden of proving the legality of its decision, action or omission rests with the defendant. There is a problem of the possibility of considering social disputes under the rules of summary proceedings with the summons of the parties to the case in the event that there is a need to obtain an explanation from the parties or to examine witnesses. There is a need for legislative regulation of the possibility for the court to consider social disputes in the manner prescribed by the provisions of Article 262 of the Administrative Code of Judgment of Ukraine, after the opening of proceedings in the manner prescribed by the provisions of Article 263 of the Administrative Code of Judgment of Ukraine. It is important to ensure the possibility to continue the consideration of the case in the simplified claim procedure, with the summoning of the parties to the court session, after the opening of the simplified proceedings without summoning the parties. Key words: social disputes, district administrative court, evidence, proving, general claim proceedings, simplified proceedings.

Ustalenie właściwości organu administracji publicznej w zakresie prowadzenia egzekucji obowiązkowych szczepień ochronnych i występowania z wnioskiem o ukaranie za uchylanie się od tego obowiązku

2021 ◽  
Vol 2 (70) ◽  
pp. 33-49
Author(s):  
Sebastian Czechowicz
Keyword(s):  
Supreme Court ◽  
Public Administration ◽  
The State ◽  
The Public ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
Preventive Vaccination ◽  
Administrative Courts ◽  
Legislative Changes

The article is devoted to determine the authority competent to carry out the execution of the obligation to vaccinate, as well as the authority competent to apply for punishment of those who persistently evade preventive vaccinations on the basis of the Code of Misdemeanours in Poland. After analysing the competencies of the public administration bodies and comparing them with the judicial decisions of the administrative courts and the Supreme Court issued in cases involving mandatory preventive vaccination, which present an inconsistent line of jurisprudence, the author concludes that the enforcement body is the province governor. However, it is necessary to postulate legislative changes, primarily in the area of the possible transfer of competencies from the province governor to the State Sanitary Inspection.

13. The nature of judicial review

2020 ◽  
pp. 277-308
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision ◽  
Public Bodies

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is outlined.

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