Meaning of Private Law: Private Substantive Law, Distinction Between Private and Public Law, Role of Judges in Shaping Law

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In public law the rights and duties with which it deals concern itself of the one part and its subjects on the other part, and this union in one personality of the attributes of judge and party. Of the two persons who are the constituent elements of every right, one must always be the State

  • The Public Law deals with the social problems in the broad context and may include the following heads: Constitutional Law, Administrative Law, Criminal Law and Criminal Procedure, Law of the State considered in its quasi private personality.

  • Constitutional Law is to ascertain the political center of gravity of any given State. Also, the form of Fundamental Rights and Directive Principles of State Policy.

  • In India, the Constitution makes India: Sovereign, Socialist, Secular, Democratic, Republic with a Federal System with Parliamentary form of Government in the Union and the States; and with an Independent Judiciary.

  • In this sense Administration has been defined as ‘the exercise of political powers within the limits of the Constitution of the state.

  • It may fairly be said to include the making and spreading of laws; the action of the government in guiding the State in its foreign relation; the management of the property and business transactions of the State; and the working in detail of the complex machinery by which the State provides at once for its own existence and for the general welfare.

  • It deals, with the collection of the revenue, the collection of statistic, international trade, manufacturing, pollution, taxation.

  • Criminal Law is concerned with the definition of crime and the prosecution and penal treatment of offenders. Although a criminal act may cause harm to some individual, crimes are regarded as offenses against the State.

  • The most important of the functions of the State is that which it discharges as the guardian of order; preventing and punishing all injuries to itself, and all disobedience to the rules which it has laid down for the common welfare.

    Public Law

    Public Law

    Public Law

Meaning of Private Law

Private Law is concerned with the relationship between individuals with one another or private relationship between citizens and companies. Law of Torts, Law of Contract, Private and Intellectual Property Rights are the subject matters of Private Law.

Private Substantive Law

  • Normal Sustentative Rights are Inherence right to personal freedom, reputation, possession and ownership. The rights ‘in personam’ are those available rights against a definite person and may arise out of agreement of the parties or by duty casted by law. Example: right of one member of family against another.

  • Abnormal Antecedent Rights are abnormal can be of natural individual human beings (minors’ infants, lunatics convict) or artificial i.e. combined of human beings or of persons property (associations, foundation, corporation).

  • Private Adjective Law: Private Law deals with persons, property, obligations and liability. Thus, it can be said that Private Law includes (i) Law of obligations /Law of Contract (organizes and regulates legal relations between individuals under contract) (ii) Law of Tort (addresses and remedies issues for civil wrongs, not arising from any contractual obligation). (iii) Law of Property (iv) Law of Succession, (v) Family Laws- family rights against kidnap and adultery.

Theories to Determine the Distinction between Private and Public Law

  • Interest Theory: Public law is that, which concerns with State, Private Law is concerned with the interests of citizens.

  • Subordinate Theory differentiates according to the relationship between the participants. Public law is characterized by a superior-subordinate relationship, whereas private law creates a relationship of coordination.

  • Subject Theory is concerned with the position of the subject of law in the legal relationship, to which the rights and duties are assigned. If it finds itself in a particular situation, as a public person. It is private law authorizing or obliging everyone.

Role of Judges in Shaping the Law

  • In the Common Law world, the basic system is laid down by case law, although there are many modern Statutes which often re-state and systematize the work of the judges. The doctrine of precedent is an operating rule of a Common Law System.

  • The decisions of the courts on economic and social questions depend upon their economic and social philosophy which was itself the product of primitive economic conditions.

  • The duty of a Court is to follow ‘Precedents’ though to a limited extent is admitted in all civilized countries.

  • There are, however, certain limitations of the Judges/ Courts: (a) It cannot openly declare a new principle of law: it must always take the form of a deduction from some legal principle. (b) It cannot override Statute Law (c) the Courts may, by a process of interpretation, indirectly limit or possibly extend the operation of a Statute, but they cannot set a Statute aside.

  • In ‘hard cases’ judges make law since in arriving at decisions, judges have a fairly wide discretion by virtue of the rule of recognition: if there is some ‘acid test’ by which judges are too able to decide what are the valid legal rules, judge must have a strong discretion to ‘fill in the gaps’ in such ‘hard cases.’

  • Rule of Law purports to be a principle implicit in all Common Law Legal System that judges may invoke to strike down government, and even legislative, action. e.g. the Supreme Court held that securing information on the basic details concerning the candidates contesting for elections to the parliament or State Legislature promotes freedom of expression and therefore, the right to information forms an integral part of Article 19(1)(a).

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