Keywords

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Synonyms

Constitutional and administrative law; Government law

Definitions

Canon law: Religious code and doctrine, especially Roman Catholic.

Private law: Law that concerns relationships and claims that do not involve the government or citizens in their civic capacity.

Liberalism: A theory and practice of government rooted in private property, negative individual rights, and limited government.

The public good: A shared vision of flourishing for the entire political community.

Introduction

Public law concerns the relationships between citizens and governments and rules that govern how public institutions work. This simple definition is complicated by the variation and complexity of public laws and how the development of public law has varied greatly among different countries and their associated legal traditions. Those states with a common-law tradition may have public law that intersections and overlaps private law, while civil law often include two separate systems of law for public and private. In both types of system, defining what public means is complicated. It might mean simply legal matters concerning entities that are themselves public; while this is simple when considering purely governmental entities, it is difficult to separate out when private or civil society actors act in a public capacity or in coordination with a public entity. Or the concept of the public may have a normative and shared conception of a legal and political order and its incumbent sense of flourishing. To understand some of these tensions, the development of public law in relation to broader material trends and the history of political thought is useful.

In general, administrative and constitutional law form the two central categories of public law and shape public institutions and the behavior of public officials. Within these categories, and sometimes overlapping, are other domains like civil liberties or criminal law and particular instantiations in a place or system like European Union law or international law. Although the development of public law follows a broad growth narrative of secularization and judicial creep into broader areas of society and politics, recent developments challenge this narrative as the boundaries between public and private law are blurred, both conceptually and by global development. The future of public law, both as it exists in the world and as a subject of intellectual inquiry, is uncertain given the pluralistic sources and the mutual imbrication of the public and private that continues to gain in complexity.

Religious Roots of Public Law

Although it is perhaps premature to label it public law as such, the Code of Hammurabi, from approximately 1750 B.C.E., did lay out a set of punishable offenses and their punishments. By virtue of its circulation and consistency, these codes, preserved on clay tablets, regulate the behavior of citizens and government, particularly about crimes and property disputes. There are many such early legal codes, most of which are produced by systems of early kingship and, as such, often focus on the behavior of citizens to the exclusion of checks on power.

It is with the development of Ancient Greek and Roman law that law’s public character blossoms. The Roman notion of the res publica, the root of republican government in Western political theory at least, is an early conceptualization of central justification for public law as a concept or independent body of rules. That there might be a “public thing” that concerns a society communally, rather than private citizens or leaders only, was defined by Cicero in his dialogue De Republica (2013) as resulting from the unity of the people around a shared conception of justice. For Cicero, law must be respected because it reflects the divine sources of natural law and contains moral guidance for a good life. Cicero’s conceptions of laws codeveloped with the actual laws of the Roman Republic, codified in the Twelve Tables of 449 B.C.E. which, despite many rules that seem harsh today, did reflect the notion that citizens are equal before the law. The Roman tradition of expanding citizenship opportunities to conquered people also contributed to the notion of law as productive of political relationships and citizenship itself. Although Cicero and others argued that an implied constitution contained in these and other roman traditions and precedents, this belief was sorely tested by the rise of the Roman Empire, even as these early emperors made reference to such a constitution. The Emperor Justinian compiled a digest of 50 volumes of Roman law in the sixth century, and in this compendium public law is understood as that relating to the administration of the Commonwealth – and served as a model for some later German legal codes.

The Roman Republic is strongly identified with the development of public law in part because Ancient Greek laws, including those of Athens, included only very minor distinctions between public and private lawsuits in the fourth and fifth centuries. There may be in Aristotle’s theories of citizenship, expressed in The Politics (1985), some antecedents for the Roman conceptions of republican involvement in public life. For Aristotle, the constitution of a state was the combination of the institutions, habits, and citizens of a particular regime and the understanding of justice at which this regime aimed and whose interests it served. Laws could and would change the orientation of a society but only in relation to the rest of their constitution; for example, one might draw lots for public positions in an attempt to increase the possibility that citizens would “rule and be ruled in turn.” Each Greek city state had its own expression of public law, making speaking of Ancient Greek public law as a whole difficulty; however, the fourth century system in Athens is one of the better known and includes a system of popular courts and specialized trials for different aspects of justice. Just as in Aristotle’s theories, the citizens as a whole were eligible for this work; of course, the Greek notion of citizenship was much more limited than the Roman and, as in Aristotle, relied on an opposition between the free public person in the agora and the private woman, slave, or laborer in the household.

While the Roman and Greek models were often important to later scholars in finding justification for public law and its limitations on power, the formation of legal traditions itself happens in clearest relation to the rise and fall of Christianity in the Medieval world. After the Roman Empire’s collapse, developments of public law intertwine with religious law and the development of the nation-state. For example, papal bulls, issued by the Vatican since at least the sixth century, sometimes created institutions or public positions. Canon law emerged from the early Christian church and is legitimately understood as one of the earliest legal systems in Western Europe. Adapted from the Code of Justinian, canon law included the concept of a set of rules for the common good and regulated behavior of both church and congregant. While today we might consider canon law, still operative in the Catholic, Eastern Orthodox, and some Anglican structures, as nonpublic, it was initially developed when distinctions between Christendom and government in the West were difficult to draw.

Outside Western Europe, law was also intertwined with religion, as with Sharia or traditional Islamic law. After the death of Muhammad in A.D. 632, Islamic Caliphs codified and expanded on the interpretations of judicial matters that Muhammad has offered during his lifetime and developed a system of jurisprudence. The Charter of Medina served as a founding document and written constitution for Islamic law. However, public law was in this and in following jurisprudence often left open. One exception was the Ottoman Empire’s legal code, evolving even in pre-Islamic times but codified after Constantinople fell in 1493.

Public Law and the Early Nation-State

Both Christian and Islamic sources of legal relationships were intertwined with the development of the nation-state and the establishment of a system of sovereign political entities outside of their religious justifications, as well as the secularization of political power and legitimacy. For example, the Treaty of Tordesillas in 1494, prompted by the voyages of Christopher Columbus, established boundary lines in the Atlantic and included papal bulls as well as a lateral agreement between Spain and Portugal. And under Islamic law, the scribes or what we might call clergy, for much of its history, served a proto-representative function as a check on the power of the emperor or sultan.

The nation-state itself is rooted in theological concepts and legal rules. With the 1555 “Peace of Augsburg,” early Europe responded to the growth of Protestantism and established that political boundaries should follow those of faith, so that “each prince determined the religion of his subjects.” The developing norms of sovereignty over a particular territory were linked conceptually to the legitimacy of faith. Of course, it was the Treaty of Westphalia, still seen as a central framer of the contemporary nation-state, which looms largest in the category of political developments that matter for public law. The Westphalian Treaty of 1648 is credited with framing the system of nation-state interaction we (arguably) still have today and with subordinating religious power to that of the state while still limiting the ability of state sovereigns. The treaty signals, with some degree of accuracy, the shift from unified Christian Europe to the contemporary anarchic state system, although as many have suggesting, identifying this shift with one moment may be too neat. Still, the eighteenth century saw much concurrence around a vision of public law as combining the positive rules that regulate state action in harmony with a national law, often religious, and also with laws between sovereign nations.

Public law and its complications highlight the ways in which the developing nation-state had various and sometimes competing goals. Some theorists viewed the state as directed towards a communal way of life for its citizens, either rooted in positive or natural law, while others began to describe the liberal state as an aggregator of disparate preferences of citizens seeking private goods. The Roman Empire fell in part as fourth and fifth century Germanic peoples, such as the Goths, and then later groups like the Vandals and then the familiar groups like the Anglo-Saxons invaded and settled in the Empire and began to develop from tribal societies into competitive kingdoms. These kingdoms were influenced by the Roman traditions and their relationship with the Church. By the time the papal dominance began to wane, in the fifteenth century, the offspring of these kingdoms were developed into kings who bean to proclaim their independence from paper rule. This notion was reflected in the writings of thinkers like Marsilius of Padua in the thirteenth century (2005), who explored the notion of secular authority in government. In light of the “Great Schism” where multiple applicants competed to be pope, kingdoms became independent political unites in their own rights.

Public law, at this point, became both about defining the borders and relationships of nation-states and expressing the absolutist notion of monarchy that dominated the development of European states until at least the eighteenth century. While a great deal of the kings worked hard to develop systems of vassaldom wherein feudal bonds held together and made possible the preservation and running of a kingdom, these relationships were focused on particular connections and localized regimes, rather than public law in a strict sense. Reynolds (1996) in fact argues that the Germanic tribes who developed this system had no concept of the “res publica,” and instead this was a period of focus on autonomous local communities.

However, this changed, as did the character of public law, with the development of the hereditary monarchy and the consolidation of power in the late medieval period and the reinvention of the notion of a public good. Even some monarchs had agreements that protected their citizens, the most famous of which, of course, is the English Magna Carta – although the Spanish King Alfonso IX had a previous version. The Enlightenment, in the seventeenth and eighteenth centuries, along with large-scale shifts in economic processes caused by the Industrial Revolution, shifted the framing of public law in theory and deed.

There are also important theoretical sources for the development public law, such as Hugo Grotius, a sixteenth century legal scholar whose ideas about natural law still resonate today. Grotius, who is called the father of international law, wrote On the Law of War and Peace (2012) to explore the question of just war and advance a theory of nascent human rights. Samuel Pufendorf et al’s. (1991) work was particularly important for public law in relation to public administration, because his theory of natural law included the idea that human nature is shaped by the roles and duties legally created – we create moral entities out of natural ones. Yet states were particularly important for Pufendorf and he advanced the idea that their interests and rights superseded those of individuals. These two conceptions come together in the work of Henri Grégoire, priest and Jeremy Bentham early nineteenth century. Grégoire collected and described the way in which ideals such as nonintervention, self-defense, equality, and independence were supposed to function in a system of sovereign states. Bentham created a draft declaration about the independence of states, promoting the idea that laws or other legal documents could include notions of rights and duties – the content of public law.

Yet one last way to conceptualize the shift from the rather limited conception of the role of royal government towards a modern state that includes administrative capacity is the notion of “governmentality” that Michel Foucault offers (2009). For Foucault, the state becomes responsible for the well-being of the citizen and, indeed, their very soul. Foucault differentiates between juridical power and disciplinary power, the former indicating a set of formal power relations not reducible to public law or to law at all. For example, Foucault explores in Discipline and Punish (2012) the way in which punishment changes from a substantiation of the divine body of the king to an internalized set of produced behaviors that do not require enforcement but only imagined enforcement. This gives way in his later work to a concept of governmentality that also rooted in the diffuse nature of power as relational and rooted in knowledge regimes and what they make legible in a particular historical movement.

Enlightenment Liberalism and Tensions in Public Law

Although the notion of the public good enshrined in public law has defenders in the enlightenment, this is also a period where liberalism is on the ascendant, and with it, individualism. Thinkers like John Jacques Rousseau (1997) championed the common good above all; indeed, for Rousseau (1997), the best social contract is one in which private interest is completely subsumed under the general will. Rousseau (1997) takes the earlier theological basis of natural law and shifts it to a purely political realm, rooting the state in principles of political right and self-government. This view echoes the conception of the city in Aristotle, and, as Rousseau 1997 notes, the Roman republican ideals of civically minded participants. Rousseau advises an intensive program of civic religion and myth building to attach individuals to public law and the state, a measure that began to appear as coercive as prominent liberals developed alternative notions.

These early liberals argued that the aggregation of private interests could, if managed in a system of limited government, serve as a proxy for the common good. For Adam Smith this was an economic good, produced through the workings of an “invisible hand” that responded to demand with the production of supply and set prices accordingly. No coordinating state was required to determine the common good; it was whatever citizens purchased and the protection of the system that make the invisible hand possible. John Locke saw the pursuit of individual (enlightened) self-interest as the basis of the social contract that made government possible and legitimated a government to protect the property rights that allowed private citizens to pursue their own life goals. Although public law retained its distinction from the purely private in these conceptions, it did not always retain a strong connection to the public good as such and to the notion of the publically minded citizen. Instead, it became about a way of governing a set of procedures that were to regulate these relationships.

Indeed, the US Declaration of Independence in 1776 is a powerful expression of the idea of recognizing and guaranteeing rights and duties between states and citizens, and the tensions that remained between the state as oriented towards a specific purpose and instead a set of processes and rules for conduct which admitted of many purposes. While the declaration itself is not a formal legal document, it grounds the notion of governmental legitimacy in both a theoretical basis in rights and in a legalize process of listing grievances. The fingerprints of Locke are everywhere on this document, despite Thomas Jefferson’s shift to “life, liberty and the pursuit of happiness” for Locke’s blunter mention of property. Yet, along with Lockean liberalism, the Declaration suggests that government’s protection of natural and inalienable rights is also a protection of popular sovereignty and rule of law, in part by indicating that Great Britain has failed by refused to pass laws “for the common good.” Indeed, the notion that public law should not only express relationships between the powerful but in fact apply to citizen and leader alike is the most striking development of eighteenth century public law. This is also clear in the 1789 Declaration of the Rights of Man from France, which explicitly discuss law as “the expression of the general will” and, despite robust descriptions of rights and rule of law, frequently note the idea that they might be abrogated for the good of all.

Constitutionalism

Although the eighteenth century formally kicked off an age of constitutional government, the first glimmers of this way of organizing public law come much earlier. As noted above, Aristotle used “constitution” to express the notion of a system of higher law as well as a way to express regime type. The Magna Carta, signed in 1215 in England, followed religious documents like the Islamic Charter of Medina as discussed above. All of these constitutions, or covenants, expressed the notion of a dual-system of law where one set of rules were higher than the other and therefore took precedence. They also began to codify, although not always in writing, the idea that higher law should check the power of the state. The Magna Carta was taken up in the seventeenth and eighteenth centuries by figures like Sir Edward Pope as a tool of critique of the monarchy, which claimed a divine right of kings. Although the Magna Carta initially regulated the relations between the crown and rich barons, Pope reframed it as a protector of the individual liberties for everyday Britons. This same framing inspired the American colonists, whose list of grievances included items like habeas corpus and trial by jury that many believed were guaranteed by the Magna Carta. The notion of a higher law that could be used to call power to account was transformative; when combined with the innovation of a written expression of the higher law, it became modern constitutionalism, now operative to some degree in nearly every country in the world.

Constitutional law creates the divisions of political power or branches in modern democratic states, in that both judicial and representative power emerge as function of the political, first in relation to ecclesiastical processes and then to the more secular development. As early representative bodies such as the assemblies of medieval England grew in formality, their power and autonomy increase. In tension with these development is the development of the first “rights” conceived of as potential checks on these political actors, although at the same time the creation or recognition of rights and their universality produced and circulated legitimacy for both right-bearing subjects and the states that recognized these rights.

After an initial boom in constitutionalism in the eighteenth century, as first Poland, then France, and eventually the rest of Europe wrote constitutions, often inspired by the US example; there was a lull until the early nineteenth century independence and constitution writing of much of Latin America. For example, Haiti had the second constitution in the western hemisphere, even before its revolution against the French, and then a sequence of new constitutions to match the many forms its government has taken since then, with a total of 24 with the last one approved in 1987. There was a spate of recreated or new constitutions of note written in the wake of World War II, including those written in part by occupiers in Germany and Japan and postfascist constitution making in Italy and soviet in the USSR. However, the bigger boom followed the independence of much of the world’s former colonies, on every continent, first in the postwar period, but continuing on through the 1960s and 1970s.

Administrative Law

Administrative law concerns the behavior of government actors in specific and includes rules as well adjudication and regulation. Agencies, tribunals, and committees make up the entities under administrative law, often organized as part of the executive branch, and things such as labor, tax, public utility, pollution, agriculture, and land usage restrictions are all part of administrative law, which is deeply intertwined with the regulatory state. Most common-law countries have processes of judicial review that include considerations of administrative law, such as through a due process protection in a constitutional or other documents. Civil law countries are more likely to have a completely separate system of adjudication of regulatory bodies and, sometimes, even nongovernmental organizations which function in the realm of governance. Administrative law was traditionally understood to function in relation to the democratically created legislation, but the notion that it merely translates legislative ideals wears thin. This is because members of the bureaucracy have a certain degree of discretion in how they apply their rules, creating a question of the legitimacy of regulatory regimes. Many theorists have questioned the role of bureaucracy in a democratic state, worrying that civil servants lack the public responsibility that other elected government actors may have (Waldo 2006).

Administrative law exists in part because of the increased expectations in the modern world that states will provide various protections and services to their citizens. Some of these relate to the rights guaranteed by constitutional law, as when administrative law regulates or makes access to education possible. Others, like the rules who govern workplace safety, the environment or food and drugs, came into existence after struggles by constituencies and policy makers, as well as legislation in many cases. These areas are often underneath the executive function of the government, which means that there is a certain discretion – varying by policy domain and the political salience of the issue, as well as, of course, the ability of citizens or other stakeholders to access and respond to policymakers. Administrative law sometimes serves to control bureaucratic excesses in that it can provide structures for exploring complaints or a lack of transparency.

In some common-law systems, judicial review of Administrative law occurs through the same channels as review of other types of law, with much variation depending on the particular history and priorities of each state. For example, Australia uses a modified common-law system though which many separate commissions and tribunals, rather than the general legal system, has the power of review. In a council of states system, like France’s, the legal systems are entirely separate to preserve the separation of powers between the branches. Thus, the judicial branch cannot act on executive prerogative, but rather legal processes internal to the civil system of administration adjudicate. Other states do not have a “Council of State,” which is the special body in France which rules on these cases and advises the executive branch but still have separate systems for administrative and other types of law.

As with constitutional law, administrative law is frequently created or enacted in complex and overlapping jurisdictions and policy domains. International bodies and the market integration often discussed as globalization force or allow states and policy-makers to adapt to a wider range of actors who matter, including international bodies like the World Trade Organization (WTO) or even supra-national bodies like the European Union (EU) which then, in some cases, have their own practices and officials of administrative law.

Conclusion

Public law, on one hand, continues to be an important topic of study and set of rules, legislation and litigation, suffused through many levels and sites of policy-making on local, national, and global scales. On the other hand, it is difficult to precisely tease out the distinctness of public law itself given this legal pluralism and the many diffuse sites at which either policy or even new legal rulings or norms can occur. Although scholars like Ran Hirshl (2004) have convincingly argued that, given the developments discussed in the last two sections above, there is a tendency towards “juristocracy,” where elites use constitutionalism to insulate themselves from democratic impulses. Still, this shift of all political questions into legal questions may in part be a shoring of a notion of juridical rights and status that itself produces the subjects it purports to control.

Cross-References