Wednesday, October 30, 2013

Private law and public law


At one level, the division relates specifically to actions of the State and itsfunctionaries vis à vis the individual citizen, and the legal  manner in which, and form of law through which, such relationships are regulated; that is, public law. In the 19th century, it was at least possible to claim, as Dicey did, that there was no such thing as public law in this distinct administrative sense, and that the power of the State with regard to individuals was governed by the ordinary law of the land, operating through the normal courts. Whether such a claim was accurate when it was made, which is unlikely, there certainly can be no doubt now that public law constitutes a distinct and growing area of law in its own right. The growth of public law, in this sense, has mirrored the growth and increased activity of the contemporary State, and has seen its role as seeking to regulate such activity. The crucial role of judicial review in relation to public law will be considered in some detail below, at 1.5.6. There is, however, a second aspect to the division between private and public law. One corollary of the divide is that matters located within the private sphere are seen as purely a matter for individuals themselves to regulate, without the interference of the State, whose role is limited to the provision of the forum for deciding contentious issues and mechanisms for the enforcement of such decisions. Matters within the public sphere, however, are seen as issues relating to the interest of the State and general public and are, as such, to be protected and prosecuted by the State. It can be seen, therefore, that the category to which any dispute is allocated is of crucial importance to how it is dealt with. Contract may be thought of as the classic example of private law, but the extent to which this purely private legal area has been subjected to the regulation of public law in such areas as consumer protection should not be underestimated. Equally, the most obvious example of public law in this context would be criminal law. Feminists have argued, however, that the allocation of domestic matters to the sphere of private law has led to a denial of a general interest in the treatment and protection of women. By defining domestic matters as private, the State and its functionaries have denied women access to its power to protect themselves from abuse. In doing so, it is suggested that, in fact, such categorisation has reflected and maintained the social domination of men over women.

SOURCES OF LAW

This section examines the various ways in which law comes into existence. Although it is possible to distinguish domestic and European sources of law, it is necessary to locate the former firmly within its wider European context; in line with that requirement, this section begins with an outline of that context.

LEGISLATION


If the institutions of the EC are sovereign within its boundaries then, within the more limited boundaries of the UK, the sovereign power to make law lies with Parliament. Under UK constitutional law, it is recognised that Parliament has the power to enact, revoke or alter such, and any, law as it sees fit. Coupled to this wide power is the convention that no one Parliament can bind its successors in such a way as to limit their absolute legislative powers. Although we still refer to our legal system as a common law system, and although the courts still have an important role to play in the interpretation of statutes, it has to be recognised that legislation is the predominant method of law making in contemporary society. It is necessary, therefore, to have a knowledge of the workings of the legislative procedure through which law is made.

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