On the Principles of Public Law

Author: Hu Jianmiao
Publisher:
Publish Date: 2005-08-01
Features: "The 21st century is the century of public law, because in this century, public power needs more regulation by law than private rights." I can't recall who said this, but I did. Since the ancient Roman D. Ulpian (Domitius Ulpian, approximately 170 AD–228 AD), the division between public and private law has experienced fluctuations and, in modern times, has become a principle of Continental legal systems and a premise for legal research. Even in common law countries like the United Kingdom and the United States, as well as former Soviet Eastern European countries that once broke away from Western legal systems, the division between public and private law remains undeniable in contemporary times. The law that restricts and guides the exercise of public power is public law, and the study that explores the spirit, institutions, and techniques of public law guiding power is public law. Public law is indeed closely linked to a country's rule of law civilization. J. Bodin (Jean Bodin, 1530–1596) pioneered modern public law with his Six Books of the Commonwealth, and after the Napoleonic Code, France established the division between public and private law, becoming the first to enter the ranks of rule-of-law countries. Germany was insignificant in mid-19th-century Europe, and public law arrived late. After World War II, Germany's public law scholars flourished, reaching prosperity, and Germany was able to join the ranks of rule-of-law nations. However, Nazi Germany, Fascist Italy, and Latin American authoritarian regimes completely rejected the division between public and private law, ultimately reducing law to a tool of power, bringing disaster to both the state and its people. For two thousand years, China's legal system was a mixture of all laws, lacking both legal department distinctions and the division between public and private law. After Ding Weiliang translated The International Law in the late Qing Dynasty, works such as Public Law and Private Law, Public Law in Practice, and Comparative Constitution became prominent. The late Qing Dynasty's legal reforms, the Beiyang "constitutionalism," and the Nationalist government's promulgation of the Six Codes finally established the division between public and private law. Yet, with good intentions but fateful circumstances, after the abolition of the Six Codes, China also followed...