CONSTRUCTING LEGAL TRADITIONS INTRODUCTORY REMARKS ON THE PUBLIC/PRIVATE-DISTINCTION AS TRADITION

Abstract

Public/private: One of the pillars of the tradition, we have been trained in and grown accustomed to, is the public/private-distinction. When you teach public law it is generally understood that you deal with constitutions, administrative action, state planning, decisions of the European Commission in Brussels or international peace-keeping missions. Legal issues resulting from or connected with divorce, rent problems, product liability, business transactions, temporary employment or birth and death are routinely relegated to the sphere governed by private law. The public/private-distinction therefore appears and constantly reappears as a fundamental mechanism of the internal order of legal systems allowing for the systematic compartmentalization of case and problems and, accordingly, the professional specialization and differentiated court procedures. At the end of our legal education and in our scholarly everyday we usually approach and deal with the public/private-distinction as something natural, as a given – rather than a contingent doctrinal construction. Thus we subscribe to and carry on a presumably crucial element of our legal tradition