THE COPPERBELT UNIVERSITY

SCHOOL OF HUMANITIES AND SOCIAL SCIENCES

DEPARTMENT OF LAW

NAME :RICHARD SAKALA

SIN :22112237

PROGRAMME :BACHELOR’S DEGREE IN LAW

TASK :ASSIGNMENT ONE

COURSE :REMEDIES IN PRIVATE LAW

CODE :LS 161

LECTURER :MR FRANCIS TAFENI

DUE DATE :21 ST FEBRUARY 2023

QUESTION

1|Page
“THERE SEEMS TO BE A DICHOTOMY BETWEEN PUBLIC AND PRIVATE LAW”

DISCUSS

2|Page
Private Law and Public Law has been talked about for thousands of years of jurisprudence by
intellectuals,greatest legal minds,lords,jurists to mention but a few.This is true of today for
lawyers and Law students but not for the general population,granted,most people will have some
sort of ideas about the diferent kinds of laws such as Family Law,Labour Law,bankruptcy,but the
distinction between Private and Public Law as considered by most lawyers as fundamental will
means next to nothing to the man or woman in the street.The distinction between these two types
of Laws can be given by using some theories that were established such as the Ulpian Theory of
Interest,Surbodinate theory,Subject theory and the combination of the three theories called the
Combination theory.The clear understanding of these theories will enable us to establish a
dichotomy between Private law and Public law.

The first distinction can be derived from the theory that was established by the Roman Jurist
Ulpian called the theory of interest.The Romans categorized law interms of relationships
between persons and persons,persons and a thing and persons with the state1.Ulpian2 stated
regarding the two,``Public law is what regards the welfare of of the Roman state,Private law is
what regards the interests of individuals persons,because some things are of public,others of
private utility”3.By reffering to Public law as that which affects the welfare of the Roman
state.Ulpian simply implied that Public law is that law in which there is involvement of the state
or government in one way or another.In contrast Private Law,from Ulpian’s point of view is that
Law which deals with the interests of Private individuals,these could be between individuals
themselves,businesses or corporations and in which there is no involvement of the state or
government.This distinction as time passed tended to be blurred by the Medieval Europe but
when the modern states started to take shape in the nineteenth century,the debate about Private
Law against Public law was revived4.

One of the greatest legal minds of the nineteenth century,Rudolf Von Jhering argued about the
central importance of the concept or theory of interests in jurisprudence that was created by
Ulpian and from that point on remembering Ulpian’s position,additional answers were
formulated to the dichotomy between Private and Public Law.Looking at the subject of interest

1
Stein P,Roman law in European History (1999),Cambridge University press,Cambridge
2
C.170-228,The Romans
3
Williams B.Samons ed,Private and Public Law in the Roman Federation 261-269
4
Re State of Norway’s Application [1987] QB 433

3|Page
theory,it has been generally observed that in public Law atleast one of the interested parties
would be a public authority in one form or another.Public authority is the corporate instruments
of the state created by the legislature to further public interests or simply put,the government
organisations that carry out tasks in the public interests.Hence,in the Public Law there is
involvement of the state or government authorities.Private Law on the other hand,is concerned
with the legal relationships between the private parties although public authority may also appear
as a private party,for example when it participates on the same footing or level as an individual
citizen in a consumer contract.The presence of the public authority in one way or another as
mentioned in Public Law relationships entails several other consequences.One is the inequality
inherent in such relationships when a public party is exercising its powers.The exercise of a right
or power granted by Public Law is generally considered to be limited by the purposes for which
the right or power was granted.A private party in Private Law may not abuse its rights and
powers.

Therefore,the Ulpian theory of interests draws a distinction between the Private Law and the
Public Law by looking at whom the welfare concerns or affects,in Public law,that which
concerns the interests of the state and involvement of the state or Public authority in one way or
another5,while in Private Law,that which affects the interests of the citizens or individuals or
simply between private persons.In addition,Public Law deals more with issues that affect the
general public,this general public may be individuals,citizens or the state itself,while Private Law
focuses more on issues affecting private individuals or corporations.

Another theory that is used to give a dichotomy between Public Law and Private Law is the
Surbodinate theory.This theory was developed in the last century based on the idea of
administration being restricted to executory administration.Unlike the interest theory that
distinguish the two by looking at whom it concerns,the surbodinate theory differentiates the two
according to the relationship between the participants.In this theory,Public Law is characterized
by a superior-surbodinate relationship,whereas Privare Law creates a relationship of
coordination.Therefore,Public Law is prominent for unilateral binding regulations such as
statutes and administrative acts and public Law of contracts.The superior-surbodinate
relationship that is created or brought about by the Public Law is concerned with the structure of

5
J.Hage and B.Akkermans ,Introduction to Law,Switzerland(2014) p.48

4|Page
government,duties and powers of the officials and most importantly relationship between the
individual and the state.It includes such subjects as Constituitional law,Administrative law
regulations of public utilities,Criminal Law and procedure and relating to the proprietary powers
of the state and its political subdivisions6.Private Law on the other hand is concerned with both
substantive and procedural rules governing relationships between individuals such as the law of
Torts or Private injuries,Contracts,property,wills,inheritance,marriage,divorce,adoption and the
like7.

In this theory Private Law creates a relationship of coordination.Coordination is the term that is
used to describe the process of people coming together or unifying for mutual benefits,assistance
and protection or according to Black’s Law dictionary,to act jointly or concurrently toward a
common end8.Hence,from the surbodinate point of view,Private Law deals with coordinating of
persons and persons or business and business while Public Law deals with the participants in the
situations and the set rules and laws that control the people in the state.The historical distinction
between Private Law and Public Law indicates not only two distinct bodies of law but a three
dimensional web of law,directly affected by a public policy considerations in which the
relationship between the parties will be indicative of separate points on the web in which many
of the same public policy considerations are applicable.A change in emphasis from an all or
nothing approach to whether a duty is owed put forward by Mason J in Sutherland Shire
Council v Heyman9,to an approach using a sliding scale was used by Gaudion and Mchugh JJ in
Crimmins case.Such a move towards differences of degree may pave the way for the dissolution
of the Private Law and Public Law dichotomy.

Public Law has historically had some different purposes to Private Law.However,with the
development of Private Laws such as the Law of torts from general wrongs in the community
that arose out of an area in which Criminal Law and wrongs were very closely linked to the point
of overlapping in the many cases handled by the house of Lords10.The more recent examples
given above of the obvious overlaps between the two areas,tend to suggest that the difference

6
Derived from www.academic.oup.com
7
J.Hage and B.Akkermans ,Introduction to Law,Switzerland(2014),p.38
8
Henry Campbell Black M.A, Black’s Law Dictionary (1968) ,revised 4th edn p.404
9
[1985] HCA 41
10
Mercury Communication Ltd v Director General of telecommunications [1996] 1 WLR 48

5|Page
exists in both laws and focuses on the types of relationships that exist between the parties and the
types of public policy considerations that more commonly affect public and private matters.This
holds true particularly in the area of the law of obligations and even more so the area of tort law
which is the branch of law under Private Law.An example of this could rise in the case of Cattle
v Stockton Waterworks Co11.The reasoning behind the rule that was seen in this case could not
be said to relate only to an individuals rights against another individual.

Therefore,the surbodinate theory tends to give a dichotomy between Private and Public Law
according to the relationships of the participants.It gives clear distinction between the two by
emphasing that Private Law creates the relationship of coordination among the vast areas it
covers.This relationship of coordination as mentioned earlier gives the members of society an
opportunity to unify freely.Public Law on the other hand looks at the superior-surbodinate
relationships such as the state making of rules and laws that govern the citizens and to some
extent the composition of the state itself.

The dichotomy between the Public and Private Law can also be derived from the Subject
theory.The Subject theory is concerned with the position of the subject of the law in the legal
relationships,to which the rights and duties are assigned.If the Law finds itself in the situation as
a public person,this could be either be the holders of sovereign Authority such as a state or
Municipality,the Public Law applies,otherwise it is Public Law authority or obliging
everyone.The subject theory further distinguishes the two by looking at the subject matter in
relation to the position of the Law in the society.Blacks Law dictionary defines Public Law as
that branch or department of law which is concerned with the state in its political or sovereign
capacity,including Constitution and administrative Law and with the definition,regulations and
enforcement of rights in cases where the state is regarded as the subject of right or object of the
duty12.

This theory generally focuses on giving the distinction between Public Law and Private Law by
looking at the position of the subject of Law in the relationships more especially legal ones.In
Public Law according to this theory,the persons rights are therefore neccesarily dissimilar,one of
them being always that highly abnormal person which is called the state hence playing the

11
[1875] LR 10 QB 453
12
Henry Campbell Black M.A , Black’s Law Dictionary(1968) ,revised 4th edn p.1480

6|Page
position of superior authority and involving the state.Private Law in Contrast,both of the persons
or parties rights as a rule are perfectly similar and of that normal type which requires no special
investigation.It may also be remarked that the majority of the rights dealt with in Public Law are
permanently enjoyed by the state as the person of inherence against its subjects as the persons of
incidence,Private Law in contrast,he/she who is today the person of inherence with reference to a
right of any given description may very well probably become tomorrow the person of incidence
with the reference to a precisely similar right and vice versa.

Margaret Munalula in her book Legal Procces13,distinguished the two types of Law by looking
at the Subject theory,she defined Public Law as law that regulates the organisation of the
state,the relationship between the different organs of the state and the relation between the state
and its subjects.Hence,Public Law plays the position of the regulatory factor of the state,Private
Law on the other hand regulates the relationships between persons i.e legal persons.More
importantly,it determines the different rights and duties that persons may have.In addition,as
used in contradistinctions,Private Law means that part of the law which is administered between
citizen and citizen or which is concerned with the definition,regulation and enforcement of rights
in cases where both the persons in whom the obligatons is incident are individuals14.

The last theory of distinguishing the two is by combining all the above theories provided to come
up with one workable distinction called the Combination theory.Through this theory,we can now
say that a field of Law is considered Public or Private Law on the public interest as given from
the Ulpian theory of interest,Public Law a law that refers to the state and Private Law is Law that
refers to legal persons.A field of Law can also be considered to be public or private by looking
and analyzing the endowment of the power derived from the surbodinate theory of distinguishing
the dichotomy of Private and Public law.The relationship with or to the state derived from the
subject theory helps us to distinguish the two by looking at the position of the subject the law it
plays in the society.Therefore,the combination theory combines all the three theories to come up
with one workable distinction which puts in together the public interests,endowment of power
and the relation to the state.

13
Margaret Munalula (2013),Legal Procces ,University of Zambia p.17
14
Henry Campbell Black M.A , Black’s Law Dictionary (1968) ,revised 4th p.1359

7|Page
The dichotomy of Private and Public Law is purely an academic one,though most learned people
have failed to establish a distinction between the two,theories and concepts that were long
established have helped to clear the smoke between the two.We can now say that a certain type
of Law is either Private or Public by looking at the Public interests,subject of the law,relation to
the state and the endowment of power.

8|Page
Bibliography

CASES

Cattle v Stockton Waterworks Co [1875] LR 10 QB 453

Mercury Communication Ltd v Director General of telecommunications [1996] 1 WLR 48

Re State of Norway’s Application [1987] QB 433

Sutherland Shire Council v Heyman [1985] HCA 41

BOOKS

Henry Campbell Black M.A , Black’s Law Dictionary (1968) ,revised 4th edition.

J.Hage and B.Akkermans ,Introduction to Law (2014),Switzerland

Margaret Munalula ,Legal Procces(2013) ,University of Zambia press

Stein P , Roman law in European History (1999) ,Cambridge University press,Cambridge

Williams B.Samons ed.Private and Public Law in the Roman Federation 261-269

WEBSITES

Derived from www.academic.oup.com

9|Page