>>> Item number 390, dated 93/12/19 18:27:57 -- ALL
Date: Sun, 19 Dec 1993 18:27:57 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: firstname.lastname@example.org Subject: public v. private law
does someone have a cite which describes the evolution of the distinction between public and private law?
>>> Item number 393, dated 93/12/20 19:34:14 -- ALL
Date: Mon, 20 Dec 1993 19:34:14 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: email@example.com Subject: Re: public v. private law Of course, the provision of a Roman law cite might be taken to imply
that the Anglo-American distinction between public and private law has its base in Roman law. As with much else, the two legal systems came up with similar categories independently, although conceivably there was some influence from Roman law after the English origins. The origins, however, lie in the changes leading up to Magna Carta. The new regulation of lords' conduct toward their tenants left the king's power unregulated so that royal power retained its twelfth-century discretionary mode, whereas discretion in power relationships among free people was increasingly eliminated. By 1215 people's expectations about proper exercise of power had put the exercise of royal power itself in a different light. Magna Carta was basically a statement that the king should abide by the same standards of justice that his courts had compelled his men to accept in regard to their tenants. That set of expectations about the use of the king's different (but traditional) discretionary power is the first substantial recognition of the difference between public and private law in the Anglo-American legal tradition. It is thus not as old as the common law (which begins in 1176), but just about as old. After that, of course, one can find Roman law influences in Bracton etc., but that is intellectualizing about something already there -- significant nonetheless, but of questionable influence in adjudication.
Robert C. Palmer HistW@Jetson.uh.edu
History and Law
University of Houston