The existence of public law is incontrovertible in the sense that public law is “found” and not “made”. Public law can be understood not in terms of rights but democracy. This concept of right is inherent in the concept of politics. In other words, public law provides recourse when variegated rights come into conflict with each other- it legitimises various private interests and resolves the conflict between them. However, for understanding the articulation of public law it is important to uncover various other notions and elements of public law- like idea of State, government, the idea of sovereignty, etc. This in turn requires tracing the origin of public law.
Tracing the Origin of Public Law
The public law has always been considered as the law of the res publica. The res publica dealt with the public thing as opposed to private interest. In the ancient era the “public thing” has been associated with the religious ceremonies and the commands of the priests. In fact, it will not be an exaggeration to say that religion became an invariable part of the State– and the substance of public law was the command of priests. “Law” in ancient era meant only private law.
In the Medieval era, the domains of religion were separated from the government. A need for defining the powers of the government was felt in order to secure the public thing. The Church initiated this move from religious society to political society due to their inadequacies to deal with wars and other political aspects. Church developed the concept of governability which was not limited only to the “public thing” but also involved governing men. However, the kings in the medieval era were still subject to the influence of religious officers- and hence public law was not completely divorced from religion.
With the rise of temporal power, the legitimacy of the Church to define public good collapsed. This marked the emancipation of public good from religion- in fact, public interest got equated with the public good. The monarchs using the concept of sovereignty revolutionized public law. In distinguishing the public interest (collective interest) from private interest (individualistic interest) evolved both the concept of State as well as the public law.
The term public law by now had evolved to mean rules or principles that conceptualized the “public thing” and this though varied existed in every State. Public law essentially was identified with the functions that a State performed. The central function/duty of a State involved firstly, the duty to protect State from outside invasions and aggressions, secondly, to resolve dispute arising between the members of society, and thirdly, the duty of maintaining and establishing public work and public institutions. Each of these duties has helped evolve public law. The first duty necessitated the need of government with means to defend invasion-and this established constitutional law and financial law. The second duty led to the establishment of Courts in order to administer justice and third duty gave rise to the concept of responding to the failure of market. This identified the basic areas of public law that includes constitutional law, administrative law, financial law, etc. However, is public law limited only to certain areas it governs?
Evolution of Public Law- Moving Away from Positivist Understanding to a Conceptual Understanding
Public law is understood to govern the relation between State and individuals as against the private law which is concerned with private parties or individuals. Public law is said to operate vertically, that is, in a hierarchical order. Whereas, private law operates horizontally in its engagement with private parties situated at the same level. This understanding of the public and private law has led to a bright-line distinction between them and often compelled the classification of various law as public or private. The areas of constitutional law, administrative law, criminal law, public international law are classified as public and in contrast to this law of torts, contract law, property law, IPR, investment law is considered to be the domain of private law. Besides public law is also distinguished from private law depending on the forum of adjudication of a dispute; the source of claim- that is whether it is arising out of a contract or government decision. This understanding of public law though relevant is highly constrained.
If we make an attempt to understand public law by identifying its boundaries– internal and external as explored by Prof. Baranger we would realise that the above understanding of public law is limited only to external boundaries. External boundaries of public law deal with the public and private law divide. But understanding public law in terms of the internal boundaries adds altogether a different dimension to the public law. Internal boundaries of public law introduce two sides of public law the rationality side and the autonomy side. While the rationality side deals with the power that the public authorities exercise over the subjects, the autonomy argument deals with the political aspect of self-governance.
As discussed by Loughlin, there is a tension that exists between the constituted power and the constituent power. Rousseau suggested that giving primacy to law over men will only jeopardise rule of law and not enhance it. This would entail not the rule of law but rule by men- prejudicing collective interest. Public law at a more conceptual level is a continuous discourse between the constituted power (government) and constituent power (the people). Constituent power is the power that ‘people’ possess, which they in exercise of their collective sovereignty use to organize the structures of government. In other words, constituent power refers to the constitution-making power, or the source of norms through which a political community institutes itself – as this “will” precedes the constitution itself it is the people who are sovereign to the constitution. Constituted power on the other hand, is a positive constitutional form that is created by the people and determines the manner in which the public power is to be exercised and the ways in which ordinary laws are to be created. Hence, the government acts in the representative capacity of the people’s constituent power.
Confusing government with sovereignty results in an incorrect understanding of public law. Public law is constituted from the idea of an autonomous State- this autonomy refers not to positive law but to droit politique. The understanding that law is a set of posited rules enacted by legislature builds a false notion that law protects liberty by restraining power. Law (droit politique) does not restrain power- but generates power. Political power is the result of coming together of the people in an institutional frame by exercise of their free will. Thus, public law is not restricted to the assimilation of rule by a group of people in power but means self-governance (political autonomy). For instance, In India, basic structure doctrine proscribes any radical change to the structure of the constitution by imposing restriction on political power.
Public law and the blurring of bright-line distinction: The Functionality Aspect of State
Constitutional law is at the core of public law- and as earlier mentioned public law is distinguished from private law fundamentally on the basis of its effect- vertical or horizontal. Rights with vertical effect are enforceable against the government or State in contrast to horizontal rights enforceable against private individual. However, as more and more private corporations are performing functions of public importance-that are closely related to governmental function – these private entities are classified as instrumentalities of State. In fact, privatisation of public utilities has necessitated the horizontal application of public law. This has blurred the bright-line distinction between public and private.
The public law has evolved in its engagement with private law – as the principles established in public law are now used to interpret and understand the concept of private law. It is believed by many scholars that doing away with the compartmentalisation of public and private and acknowledging the overlap has only helped in maintaining the substantive rights (Sandra Fredman and Gillian S. Morris, Cost of exclusivity: Public and Private Re-examined). Contrary to this Shyamkrishna Balganesh has argued against fusion of public and private law. Although the use of constitutional principles to interpret law of tort has evolved the public law but it has at the same time constrained and cabined the private law claims in lower courts.
The relaxation of the standing requirement and expansion of the Public Interest Litigation jurisprudence has led to recognition of parallel jurisdiction of public and private law for claim arising out of the same facts. This has posed a moral hazard as now duty of care owed by an individual in its private capacity in a tort claim is replaced by a structural duty that is owed by State entity to the victim. The parallel jurisdiction has enabled the victim to pursue either action, however, the inclination to enforce structural duty is more, given the expedite process. This structural duty of care owed by the State though benefits the victim it hits at the core principle of tort law, that is, creating deterrence by compelling the defendant to bear the cost of its wrongdoing, in turn contradicting the tort laws goal of corrective justice. The structural duty of care has changed the purpose of claim from corrective justice to distributive justice, thereby benefitting not only the victim but also the wrongdoer. The case of Chandrima Das is an excellent example to elaborate on this standpoint. In this case, an action was instituted in Calcutta High Court by a civil right lawyer on behalf of a foreign national against the government claiming monetary compensation from the government for a brutal gang rape committed by railway employees. The event in question though happened when the employees were off duty but because the same took place on the premise owned by the government, the Court directed the government to compensate the victim. The higher courts in exercise of the writ jurisdiction have completely usurped the private law domain.
From Public International Law to International Public Law and Beyond- Applicability of Public Law in Transnational Realm
The public international law traditionally was understood to regulate the relation between States- whereby every State in its individual capacity is the sovereign endowed with the responsibility of maintaining the private interest of its own subjects. However, the renaissance resulted in the identification of “public thing” outside the domain of State. As per International public law, public thing is not limited to welfare of a particular State but common interest. International public law considers the existence of “public thing” above State. This has led to the development of rules, concepts and even establishment of institution at a global level. Elisabeth Zoller, in her work “Introduction to Public Law” explains that International public law is not the same as public international law – the emphasis of former being solidarity between people but solidarity between State for latter. International public law is completely distinct from the traditional understanding of public international law.
Transnational governance also represents such non-traditional understanding of international law and focuses on the engagement of both public and private actors. Transnational governance has challenged the notion of governance adopted by constitutional States at a domestic level and the concept of sovereignty of each State at a global level (traditional international law). The term “governance” at a transnational level refers to the act of solving problems or resolving disputes, not necessarily by adopting an institutional framework similar to domestic, European or international law but instead by focusing on functional aspect. Governance at a global level is not concerned with rigid rules and institutions for resolving disputes but adheres to a more flexible framework including expert knowledge, arbitration proceedings, non-governmental organization. The non-institutional enforcement, expert assistance, and facile procedures makes the process of transnational governance more attractive. The transnational governance, however, is often mired in controversy with regard to its legitimacy and accountability. But not drifting from the fact that the concept of governance is distinct from that of a government suggests that accountability and legitimacy in governance arise from mutual deliberations and negotiations among private and public, political and non-political actors.
Public law has also intruded the realm of Global Administrative Law. B.S Chimni stresses on the re-conceptualisation of administrative law at a global level such that there is no distinction between procedural and substantive rules. This is important to maintain the concept of “global state”. There is a need to move away from judicial intervention and adopt alternatives for enforcement of administrative law which involves initiatives from State administration that is transparent and responsive, NGOs playing a watchdog role, and robust right to information law. This is necessary to ensure active participation of both developing as well as developed countries- which marks an initiation of democratic dialogue among the member states keeping in mind the interest of the global society.
International investment law is yet another area of law where public law plays a key role by resolving the tension that exist between international investment treaty and international arbitration. Understanding the international investment law from the standpoint of constitutional and administrative law perspective and not as private matter is helpful as the term of treaty has emerged from a global consensus.
Shalini Sharma did her Masters (LL.M.) from NALSAR University of Law, Hyderabad with her specialization focussed on Intellectual Property Law and completed her B.B.A.LL.B(Hons.) from Alliance University, Bengaluru. She is the founder of the Blog Lawstorming!. Besides IPR her research interest includes Public Policy, Constitutional Law, and Criminal Law.