What Is Public Law and Private Law,  Part One

And Why You Need To Know The Difference

In order to understand how fundamental law has been altered in America since its inception circa 1776-1781, one need merely look at the history of law in this country and how its focus has been altered in government sanctioned courts.  This difference is no more clearly evident than when one is able to understand the how public law has been supplanted by public policy and private law. The process of this change has been slow and gradual to develop over the first century (dating from the end of the War Between the States) since they began to take hold, and therefore is virtually invisible until certain watershed moments in history and their significance are pointed out. In the second part of this discussion, we shall take a look at some of these watershed moments. 

If you’ve ever heard the term “public policy”cited in speeches by politicians and government officials before but wondered what it meant or referred to, then you are not alone. Most people in this country, when asked, cannot tell you what “public policy” is or what it refers to. And your ignorance of these changes and this essential fact in our history is what may be causing confusion  in your mind regarding the court’s abrupt change in how it views legal actions, including such relatively minor events as victimless traffic infractions. If you don’t know what is happening when one of these events occurs and how you can mount a lawful defense to it in order to seek remedy, then your ignorance has doomed your efforts to fail!

First, let’s take a look at and find out what makes up public law. We can start by looking at a definition from Black’s Law Dictionary, 4th edition:

Public law. That branch or department of law which is concerned with the state in its political or sovereign capacity, including constitutional and administrative law, and with the definition, regulation, and enforcement of rights in cases where the state is regarded as the subject of the right or object of the duty, — including criminal law and criminal procedure, — and the law of the state, considered in its quasi private personality, e.g., as capable of holding or exercising rights, or acquiring and dealing with property, in the character of an individual. Holl. Jur. 106, 300.

Public law in its function as constitutional law (also referred to as positive law and general law in contrast to private law which is non-positive law) is the expression, within a sovereign political organization such as a state or nation, of all laws that limit government and maintain the separation of powers (as stated in Article 4, Section 4 of the U.S. Constitution) of the “states of this union.” Public law, within the context of a constitutional republic, is an expression of those laws which are limited by the aforementioned constitution. What powers the people do not delegate for the administration of government are retained by the people for their own personal benefit and liberty.

Within the structure of the constitutional government originally set up for the Union of states in America, government’s primary purpose was for the preservation of the people’s private rights.  The only instance in which public law is used actively for private purposes, in a legal sense, is when a private right has been violated and the public law is used in the court to address the wrong and correct it. This bring us to a definition of constitutional law, once again from Black’s Law Dictionary. Notice in particular the third definition:

CONSTITUTIONAL LAW. (1) That branch of the public law of a state which treats of the organization and frame of government, the organs and powers of sovereignty, the distribution of political and governmental authorities and functions, the fundamental principles which are to regulate the relations of government and subject, and which prescribes generally the plan and method according to which the public affairs of the state are to be administered. (2) That department of the science of law which treats of constitutions, their establishment, construction, and interpretation, and of the validity of legal enactments as tested by the criterion of conformity to the fundamental law. (3) A constitutional law is one which is consonant to, and agrees with, the constitution; one which is not in violation of any provision of the constitution of the particular state.

According to the first definition of public law that we examined, there are two types of public law, the second being administrative law. But what happens when the administrative law being used on a person is tied to private law? To answer this question we must look at what private law is in order to determine the scope of its usage. Once again we turn to Black’s Law Dictionary for a definition:

JUS PRIVATUM. Private law; the law regulating the rights, conduct, and affairs of individuals, as distinguished from “public” law, which relates to the constitution and functions of government and the administration of criminal justice. See Mackeld. Rom. Law, § 124.

Private law in this sense, then, operates between individuals, most often in the form of contracts or agreements that are made between two people (or, in the case of dealing with government, two artificial persons). Therefore, private law entails a very narrow area of concern, which involves an individual’s consent in the case of a quasi-contract. The term “quasi” means “seemingly” or “as if” or “to a certain extent,” indicating, in reference to contracts, that it is not completely valid or binding and therefore is only a kind of “partial” contract.

With the foregoing in mind, let us now turn our attention to two maxims of law, the first of which states:

Prior tempore, potior jure.  He who is before in time, is preferred in right.

In order to comprehend the significance of this, one must first understand that state and city traffic codes and ordinances are private law, and therefore may not always conform to consititutional restrictions.  What this maxim is stating is that since the people (in terms of existence) came before the artificial state and municipality (and hence their subsequent man-made codes and ordinances), the people’s rights in matters concerning this subject matter cannot be cancelled or ignored when asserted in a matter and are deemed the superior right. The people’s rights are based on natural law, which precedes man-made law, which in turn is controlling only over legal fictions (corporations and other artificial legal entities created under the auspices of government) through their consent.

The second maxim of law that we are concerned with here states:

Jus publicum privatorum pactis mutari non potest.  A public law or right cannot be altered by the agreements of private persons.

The most commonly known ground on which private law can compel performance is in the area of contracts, wherein it is assumed that there has been a meeting of minds, proper consideration, two parties with the capacity to contract, and full disclosure of terms. And yet, as stated in the second maxim above, “a ... right cannot be altered by the agreements of private persons.” What that means is that your right to avoid an unconsionable contract cannot be abrogated by that contract. And since most of govenment’s quasi-contract licenses are in actuality adhesion contracts (that is, they are biased to one-side, providing the applicant with no options to negotiate the terms) they cannot be enforced . . . except through one’s concent. 

Now that we have a better idea about the difference between public and private law and how these may apply in reality, let’s examine a bit of the legal history of this country in order to gain a more clear understanding about how public law in this country was supplanted by “public policy” and private law, in What Is Public Law And Private Law, Part Two.
 
If you would like to learn more about these concepts so you can avoid the whole mess without having to “appear” in court at all, you can download our free ebook Common Law Remedy To Beat Traffic Tickets and learn about the secrets that the courts and legal profession don’t want you to know.
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If you’d like to learn more about the law and how it can serve you, don’t hesitate to check out our Articles on Traffic Law section. Discover some of the secrets of law that you’ve never been taught!

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