THE PRIVATE LAW – PUBLIC LAW DICHOTOMY
Since Roman law there has existed an understanding regarding the structure of the body of legal norms, in that legal relations between actors (so‐called legal subjects) can mainly be of two kinds. One involves equality between the players: legal subjects are free to enter into the legal relations of their choice, and they have the power to mutually influence the contents of their relation: their rights and obligations. Eventually this happens when persons enter into legal relations with each other as private parties, within their private capacities. Example I.1
When Janis and Inga decide, that Janis will buy Inga’s watch, they both have the option to decide whether or not Janis will buy and Inga will sell the watch – that is to say, whether to make the contract for the sale of Inga’s watch. The same is true of the question of what the major conditions of the deal should be – price, time and place of performance, supplementing services such as whether or not Inga will provide Janis with extra batteries, etc. All these issues are decided by the parties mutually and either of the two parties can at any time say “no” to what the other party proposes. The same is true of other kinds of private relations, e.g. whether or not they will want to start dating each other and later on be married to each other. Another, quite different set of cases is one in which this equality between the parties does not exist. In those cases one of the parties is subordinated to the other. One of the parties can compel the other to enter into a legal relationship with it and dictate the terms. For example, when Janis has to pay taxes to the tax authority of his country, he can not say “no, I do not want to pay taxes, i.e. I do not want to enter into a tax paying relationship with you”. He cannot alter the terms of the relationship with the tax authorities either: he can not say “oh, I am willing to pay taxes, but less – or at a later time – than...
Please join StudyMode to read the full document