Private Law and Public Administration
Private law is that part of law that governs the relationships between legal subjects (persons subject to the law) on a horizontal level, i.e., the relationships between parties with equal legal power.
Private law is that part of law that governs the relationships between legal subjects (persons subject to the law) on a horizontal level. Theoretically, private law thus governs relationships between parties with equal legal power. In contrast, public law is that part of law that governs the relationship between the state and private persons on a vertical level. Public law is thus primarily concerned with the exercise of state power. The distinction between private law and public law is one of the most basic divisions in the domestic law of many legal systems.
In light of the basic description of private law and public law in the previous paragraph, it follows that state administration will largely be governed by public law (and in particular by the branch of public law called administrative law). Put differently, the state administration will generally act in terms of public law since the administration is tasked with fulfilling the state’s obligations toward its citizens and functions within the vertical relationship between state and private persons.
However, the line between what is considered public and what is considered private has never been an absolute one and is increasingly been blurred by public administration activities that are typically governed by private law. For example, the public administration is no stranger to the private market where relationships are governed by private law. It follows that private law also plays an important role in public administration.
Private law is typically divided into a number of main fields (although there is certainly no set division of fields): law of family and persons, property law, law of succession, contract law, tort law/law of delict. Property law, contract law, and tort law (law of delict) are of particular interest to public administration.
Property law is that branch of private law that governs the relationship between legal subjects and their possessions vis-à-vis all other legal subjects. Since public administration inevitably involves dealing with state assets, property law plays an important role in this area. In many instances the state is simply viewed as another property owner or user like any other so that the relationship between the state and its assets in relation to all other legal subjects is governed by the same property law that applies to private parties. Within the public administration function, property law will thus play an important role in determining what can be done with state assets and how it can be done. In this way property law becomes part of the legal framework in terms of which public administration occurs. For example, the way that the administration goes about establishing a physical location for its activities will largely be governed by property law: the administration may use premises that it owns if property law (e.g., planning law) allows such usage of the particular premises, or it may rent facilities from a private property owner in terms of property law (particularly landlord and tenant law), or it may buy suitable land or buildings using property law (specifically law governing sale of property). In these instances the private law rule framing the public administration’s actions will be very similar, if not identical, to that applying to any other legal subject (e.g., a private retailer) in establishing facilities for its activities.
There are, however, aspects of the public administration’s relationship with its property, especially vis-à-vis citizens dependent on public services, that call for distinct treatment in terms of property law. In these scenarios ordinary private property law seems inadequate to provide a complete framework for the relevant relationships. Additional legal rules are required to supplement ordinary property law either by means of regulation or by modified interpretation and application of the ordinary rules. A good example is the public administration’s management of public housing stock or more generally how the public administration deals with its property in relation to the need for housing, especially by the indigent. In these scenarios the public administration’s obligations cannot simply be viewed as equal to those of a private landlord so that property law that would generally govern the relationship between a landlord and tenant in relation to the property would not be wholly adequate to serve the public administration’s needs.
In my opinion, the question of the lawfulness of the occupation of council land by homeless families must be located not in the framework of the common law rights of landowners, but in the context of the special cluster of legal relationships between the council and the occupants established by the Constitution and the Housing Act. The common law might have a role to play as an element of these relationships, but would not be at their core. The very manner in which these relationships are established and extinguished will be different from the manner in which these relationships might be created by the common law, for example, through contract, succession or prescription. They flow instead from an articulation of public responsibilities in relation to the achievement of guaranteed social and economic rights. Furthermore, unlike legal relationships between owners and occupiers established by the common law, the relationships between a local authority and homeless people on its land will have multiple dimensions, involve clusters of reciprocal rights and duties and possess an ongoing, organic and dynamic character that evolves over time (footnotes omitted).
Contract law also plays a key role in public administration. Public administrations participate in the marketplace in ways that are very similar to other private commercial actors (e.g., consumers or companies). For example, administrations acquire and dispose of goods and services; they enter into financial arrangements and conclude partnerships. In all these transactions, the administration utilizes the primary legal mechanism to create commercial relationships, namely, the contract. However, although the public administration may appear equivalent to any other (powerful) market participant when engaging in these transactions and their contracts thus seem to be equivalent to any other commercial contract, these arrangements involving the public administration remain distinct from “normal” commercial transactions (Quinot 2008). Due to its unique status and position in any given society, the public administration is never wholly equivalent to other (private) legal actors with the result that its legal relationships are also distinct. Many legal systems have recognized this distinctiveness of the commercial relationships of the public administration by developing a distinct concept of a public contract. The French concept of the contrat administratif is a prime example (Turpin 1999; Maree 2013). However, many legal systems do not recognize a distinct legal concept of a public contract and rely on the private law rules of the ordinary commercial contract to also govern the administration’s commercial dealings. Even in those systems that do recognize the distinct concept of a public contract, the public administration may still conclude ordinary commercial contracts that would be governed by the ordinary private law of contract. Finally, while the rules governing distinct notions of a public contract are different from the ordinary private law of contract, those rules are still, to a very large extent, based on the ordinary private law of contract either because it developed from the latter or because it simply amounts to the ordinary private law of contract with an overlay of administrative law (Turpin 1999).
It is clear that even though the public administration’s commercial dealings may differ from equivalent dealings by private parties, the rules that govern those transactions are largely private law based.
Tort Law/Law of Delict
The third area of private law that is of particular importance for public administration is that of tort or in some systems known as the law of delict. This is the branch of private law that governs the relationship between legal subjects in relation to wrongful action. It is largely aimed at ensuring that the person that caused the damage is liable to the person that suffered the damage.
It is inevitable that public administration will from time to time result in damage to private persons. For example, damage may occur when a person falls into an open drain in a public street, or when a doctor in a public hospital fails to exercise the necessary level of care in treating a patient, or when a person is mistakenly arrested and detained, or when a public bus collides with a private vehicle. In all these scenarios and many more that one can think of, the public administration may be liable for the damage caused by its actions. In these cases the private law of tort may govern the relationship between the public administration and the person that suffered the damage.
Again, as with the two areas of private law noted above, the application of tort law to the public administration is not wholly equivalent to its application in purely private settings, that is, between private legal subjects. In recognition of the distinctiveness of the public administration in attracting liability for wrongful action causing loss, the application of tort law to the public administration is often referred to as state liability law. Many legal systems impose special conditions on the liability of the state (including the public administration) in relation to damages claims. For example, it is fairly common to find that there are special notification rules that would require a person wanting to claim damages from the public administration to give a particular form of notice to a certain public office of its intention to bring such a claim. One also commonly finds restrictions on how damages claims can be enforced against the public administration. It is widely recognized that the type of enforcement that is generally available against a private person found liable for damages caused to another cannot be followed in relation to the state administration. Typically, when a claimant has obtained a damages judgment against a defendant, it can execute that judgment by attaching any of the assets of the defendant and selling those assets to compensate for the damages, i.e., to satisfy the judgment debt. However, it would lead to fairly chaotic results if those who have obtained damages judgments against the public administration could simply attach any of the assets of the public administration (e.g., government vehicles or planes or medical equipment) to satisfy the debt. As a result there are thus often rules in place that would limit the method of how damages claims can be enforced against the administration where the administration refuses or neglects to pay.
The liability of the state in tort has also developed along some distinct lines from ordinary private law, because of the influence of the English law maxim that the “King can do no wrong” (“rex non potest peccare”), which has influenced many legal systems. This maxim, more accurately described as a doctrine of sovereign immunity, effectively provided immunity to the Crown against damages claims, which extended to the entire public administration, which was effectively done in the name of the Crown. In England, it was thus only with the introduction of the Crown Proceedings Act of 1947 that a more general state liability regime emerged (Fairgrieve 2003).
While public administration fulfills a unique function in any society, it does not occur in a vacuum, separate from that society. Many of the activities of the bureaucracy in pursuing the function of public administration take place within the same legal and institutional context as the dealings of any other person (individual or firm) operating in that society. The methods used by bureaucracy to effect public administration are also often very similar, if not identical, to the methods used by private persons in pursuit of their own private endeavors. It is accordingly not surprising that the law that frames the conduct of private legal subjects, i.e., private law, also plays a significant role in facilitating and controlling public administration.
In many instances the state can make use of the very same legal rules as private legal subjects to pursue its agenda in public administration. It can conclude contracts, deal with its property, and may attract liability for its actions along the way. However, the distinctiveness of public administration often impacts on private law rules when they apply in scenarios involving the administration. It is thus common to find that private law rules obtain a public (administration) or administrative slant when applied in the context of public administration.
- Fairgrieve D (2003) State liability in tort: a comparative law study. Oxford University Press, OxfordGoogle Scholar
- Quinot G (2008) State commercial activity: a legal framework. Juta, Cape TownGoogle Scholar
- Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (CCT 22/08) (2009) ZACC 16; 2009 (9) BCLR 847 (CC); 2010 (3) SA 454 (CC). http://www.saflii.org/za/cases/ZACC/2009/16.html. Accessed 29 Mar 2016
- Turpin CC (1999) Public contracts. In: Von Mehren A (ed) International encyclopedia of comparative law: contracts in general. JCB Mohr (Paul Siebeck), TubingenGoogle Scholar