Public Law

Public law is the part of the legal system that regulates relations between private persons or entities and bodies that hold public power when the latter act in the exercise of their legitimate public powers (judicial, administrative, according to the nature of the body that exercises them) and in accordance with the legally established procedure, and of the Public Administration bodies among themselves. Example: When a murderer is found loose in the streets, it is a danger to society, which is why social interest is taken.

The characteristic of public law is that its mandates are not subject to the autonomy of the will that the parties could exercise, that is, "they" cannot be modified by the parties in legitimate use of their autonomy of will. They are “unavoidable and obligatory” mandates, by virtue of being commanded in a relationship of subordination by the State (in the legitimate exercise of its principle of empire). The justification is that they must be complied with by the entire population.

Public law has also been defined as the part of the legal system that regulates the relations of supra-ordination and subordination between the State and individuals and the relations of supra-subordination, subordination and coordination of the bodies and functional divisions of the status with each other. Public law is carried out through the norms that comprise it.

Features

Traditionally, law has been divided into the categories of public law and private law. However, this division has been widely criticized and is currently not as strong, given the appearance of areas of the legal system in which the differences between the public and the private are not so evident. Although public law generally refers to the norms that order and regulate public (state) bodies among themselves, and between private and public.

Likewise, public law is usually defined as opposed to private law. However, it has been estimated that the classification or distinction between public and private law should be taken with caution, as it is considered unattractive from a scientific point of view.

As differences between private law and public law, the following are usually mentioned:

• While heteronomy and mandatory rules of court would predominate in public law, private law would enact the self-composition of the interests in conflict and the rules of device court (norms that act in the event of no prior agreement or contractual provision between the parties involved).
• The parties to private law are assumed to be involved in equality positions, at least theoretical. The typical relationship of public law, on the other hand, would be marked by inequality derived from the sovereign or imperium with which the public bodies (public powers) involved are covered.
• It is said that private law rules would tend to favour the particular interests of individuals, while public law rules would be presiding over the attainment of some public interest.

Criticism

It has been criticized that defining public law as what "it is not", has certain logical inconsistencies. For example, the term "constitutional law" is not equivalent to the term "public law" and it tells us nothing about the content of public law, the same happens if we replace "Constitutional Law" with the term "private law".

The traditional and widespread idea that in private law the autonomy of the will prevails and that in public law it does not prevail, would be inaccurate, considering that it would belong to authoritarian, non-liberal notions of the past. To say that public law is not tinged with the autonomy of the person would imply saying that the State could reproach the way of dressing, sports, religious, sexual, artistic preferences, etc.

Personal autonomy is a master line in public law because it is one of the very foundations of the Rule of Law, in a liberal notion of society, that is, in almost all the countries of the world.

The widespread idea that private law is largely governed by equality and that public law is not, is also considered false. The principle of equality comes from the idea of individualism. It is also part of the foundations of the liberal State and it is what determined that one man has one vote, or that we are all equal before the law, that equality is the basis of the tax (or of the "public charges", as indicated in the Declaration of the Rights of Man and of the Citizen). Equality of gender, race, religion, origin, equal access to jurisdiction, to public office, etc.

The distinction that, between public law and private law, is usually made from a "proceduralist" reading, pointing out that private law is more self-compositing than public law (which is more heterocompositive), would be an argument that completely ignores substantive law, showing a purely procedural notion of the legal phenomenon. On the other hand, it would be necessary to keep in mind that the administrative procedure, criminal mediation, international arbitration, are self-compositing mechanisms of public law.

Finally, the definition of public law since the imperium has been criticized. In general it is estimated that what is meant by this is not explained, especially through the argument that "the State can do everything" in the exercise of power.

The Police State COUNTED

Everything could be done in the polis (city-state), later they were excluded from the "police" international relations and finance, remaining as an internal administrative activity. Once the doctrine of the division of powers arose, legislative and judicial activity was excluded from the concept of police. Subsequently, with the principle of legality in the modern rule of law, it was possible to submit direct coercion to compliance with pre-established rules. Consequently, both the State and individuals act according to authorizations, prohibitions, permissions and obligations from the legal system.

Because of the above, it has been argued that public law should be defined by what it "is" and not for what "is not". Public law, then, would be the one that regulates the relations of the organs and functional divisions of the State among themselves and with individuals.

Subjects or branches of public law

Public law regulates a large number of matters corresponding to the Administration and the State, their organization, powers and, in general, the functioning of constitutional bodies, constitutionally recognized rights and provides us with constitutional guarantees against interference from public powers to individual freedoms, rights and guarantees (constitutional law); the public Administration, internally or nationally, and its action through the common administrative procedure or the different special procedures (administrative law); and it also covers other matters of a supranational nature (public international law), or very specific internal ones (electoral law, parliamentary law).

Likewise, criminal law is also included, such as organic and procedural procedural law (without prejudice to certain matters, where the autonomy of the parties may prevail), financial and tax law and some matters of labor and security law social (violations and sanctions of the social order, for example).

It is made up of constitutional law, administrative law, public international law, tax law, criminal law and some very specific matters such as budget law or territorial law.

On the other hand, the legal system usually has «splashes» of public law: the so-called public order, which establishes limits to the autonomy of the will.

Principles of public law

The principles of public law may vary from state to state. However, modern legal doctrine has established two practically unanimously: the principle of legality, that is, subjecting the State to compliance with the legal system, and all the principles for maintaining the development of the democratic State, that is, allowing the greatest spiritual and material realization possible.

Traditionally, the principles of public law are often contrasted with the principles of autonomy of will and equality of parties of private law.

Principle of legality

It is a fundamental principle of public law according to which any exercise of powers must be based on legal norms that determine a competent body and a set of matters that fall under its jurisdiction. For this reason it is said that the principle of legality guarantees legal certainty.

Power

The State and its bodies, in their relations with individuals within public law, do not act within a plane of equality, but rather one of inequality, that is, it allows them to create obligations or suppress rights of the individual without the consent of the latter, derived from the sovereign position or imperium with which he appears vested, exercising a public authority...