Public Law and Private Law

Author: [Japan] Minobe Tatsukichi
Publisher:
Publication Date: 2003-05-01
Features: This book is a new work titled Public Law and Private Law. Since engaging in the study of administrative law, the author has continuously been concerned with the distinction between public and private law and their relationship, and has published numerous papers on the subject. Naturally, I oppose the so-called monistic theory of law that denies the distinction between public and private law. However, I also cannot fully endorse the view that overemphasizes the difference between the two, considering their legal relationships to be entirely distinct and their applicable principles to be entirely different. Especially the theory that was once popular, which defined public law as the law of power relations and private law as the law of reciprocal relations, although containing partial truths, failed to fully grasp the issue and, in my opinion, requires revision. In the paper published in The New Journal of Jurisprudence in the 37th year of the Meiji era (1), after reading Professor Minobe's (2) On the Characteristics of Public Law, I discussed this very point. Later, in the Journal of the National Society, in the 2nd year of the Taisho era, I published On the Relationship Between Public and Private Law, and in the same journal in the 3rd year of the Taisho era, The Intermediate Zone Between Public and Private Law. These two works were also based on this same idea and foundation. Even to this day, my thoughts on this matter have largely remained unchanged. In this work, I intend to elaborate in detail the thoughts I have long held on these issues. On one hand, I will clarify the criteria for distinguishing between public and private law, and on the other hand, use examples to illustrate how closely related the two are. Regarding this issue, I have only published a few papers, and they are all short and fragmentary, not constituting a comprehensive study. Therefore, I have abandoned them all. This time, I have entirely rewritten the entire work. In Japan's judicial system, administrative trials are distinguished from judicial trials, and disputes involving public law relationships are not handled by courts. I believe that under the legal system of a country that adopts this practice, the issue of the distinction and relationship between public and private law is not merely a simple theoretical problem but also a practical issue that determines judicial jurisdiction. If this issue is not clarified, fair judgments cannot be expected. However, in Japan, research on this issue has made little progress, and literature on the subject is extremely scarce. This is not only true for Japan but also for the West, where it is difficult to find well-researched works on this issue—especially on the relationship between public and private law. Therefore, when drafting this work, particularly from Chapter 2 onwards, it is largely the result of my own reflections, with little reference to the writings of predecessors. Of course, the author does not dare to claim that this small book can completely resolve the issues of public and private law. However, I believe that at least in clarifying the importance of the issue and identifying the key areas that require further research, I have achieved my goal. I sincerely hope that scholars will offer honest criticism to further advance deeper research. November 7, 1935, Minobe Tatsukichi