‘Why Private Law?’

“I have a question for the readers of this blog: Why make a distinction between public law and private law? Note, my question is not what is the distinction, but why is it a useful and helpful division to make? Of course, both questions are important and interrelated, but for now, I would like to focus on the latter. This may be the central question in the New Private Law. Prior private law scholarship has typically fallen into two broad schools. On one hand, there are the Private Law Skeptics, who argue that all law has ‘public’ ends, and ergo all law is public …” (more)

[Patrick Goold, New Private Law, 12 August]

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1 Comment to "‘Why Private Law?’"

  1. Jane Ball's Gravatar Jane Ball
    13 August 2016 - 8:34 pm | Permalink

    This is because Napoleonic legal systems have a forrmally separate public law of assets and private law of assets. An English lawyer might call these laws of property. Theoretically England and Germany have a common law of property (gemeine Recht)
    French public “property” is inalienable, untransmissible on death and cannot be mortgaged. French private law tends more towards freedom to transact and some testamentary freedom.
    This is a theoretical position because England and France tend to do the same thing at the same time with the help of exceptions. It is a way of looking at things.
    This distinction affects all areas of law. It would not be possible to merge French public and private French law because of incompatible principles.
    England partly merged law and equity to an extent in 1873-5 making it more available. France also made public law available to private citizens in 1873 in ways that should be cheaper.
    There are advantages and disadvantages of both systems in a dynamic rivalry.

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