Private Law Theory

ABSTRACT
For civil law jurisdictions – those that base their tradition on Roman law – the distinction between private law and public law is a foundational principle. Meanwhile, those legal systems based on the Anglo-American common law tradition are not so anathema to the mixing of public and private remedies – see, eg, the proliferation of punitive damages in common law jurisdictions. Conversely, civilian jurisdictions to date have rejected remedies which have mixed the goal of combatting harm to the public at large with rights of action held by private citizens as contrary to foundational public policy – namely the separation of public and private law.

But to what degree does – or should – that strict separation hold true in the modern legal landscape? Part I of this Article examines the historical origins of the public law-private law divide in the civilian legal tradition. Part II of this Article then explores areas within the civilian legal system where that strict divide has already seen some flexibility – namely in the role of the Ministère public or its equivalent in civilian jurisdictions like France, Italy, and Germany. This role within civilian jurisdictions has, to date, been largely administrative and traditionally would be ‘hardly suitable for acting as the champion of a class, a group of citizens, or their interests’. Nonetheless, in civil law jurisdictions, the Ministère public role is often the closest analog to the American office of the attorney general. However, unlike the American attorney general role, the ministerial function in the civilian jurisdiction does not include the ability to seek damages, punitive or otherwise, writ large on behalf of the public. This Article examines the ways in which the civilian ministerial role could be expanded to follow the American attorney general model, particularly in the ability to bring private tort actions on behalf of the public. In conclusion, this Article posits that, as comparative law scholar Professor Dainow suggests, the time has come for the ‘evolution’ of the civilian system of strict separation of public and private law, particularly to address large-scale public harms like environmental disaster litigation.

Sossamon, Meera, Private Policy: The Role of Private Remedies in Protecting Public Interest in Civil Law Jurisdictions (May 16, 2024), Loyola University New Orleans College of Law Research Paper No 2024-07; 84 Louisiana Law Review 1039 (2024).