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 in 1865) 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. of A.
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 state or 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 concepts of law so you
can avoid
the whole mess without having to “appear” in court,
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.
_________________
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!
You can lead
people to the truth, but you can’t make them
see it.