Introduction to

Public Law:
A
Comparative
Study

Elisabeth Zoller
 Introduction
Thinking About Public Law

Public law in national legal systems. No matter the diversity of legal

systems, they all take into account, in one way or another, a necessary
distinction between public law and private law. Every country has its own way
of conceptualizing this distinction and putting it into practice. In general, the
manner in which they do so bears witness to the ‘‘prejudices, habits, dominating
passions, of all that finally composes what is called national character.’’1
In some legal systems, the distinction is blurred or barely discernible; it can
be intuited only from specific rules or particular institutions embedded in the
larger body of the law in force. Such is the case in England and in the United
States. Both countries possess some public law rules or institutions—for
instance, in England, the so-called ‘‘public law remedies’’ which are distinct
from those available in private law2 or in the United States, the ‘‘cases of private
right and those [of public rights] which arise between the government and

1 A. de Tocqueville, Democracy in America [Translated by Harvey C. Mansfield and

Delba Winthrop], 2000, University of Chicago Press, I, I, chap. 2, p. 28

2 O’Reilly v. Mackman, [1983] 2 AC 237, 255-6 (Lord Denning, J.):

In modern times we have come to recognise two separate fields of law: one of
private law, the other of public law. Private law regulates the affairs of subjects
as between themselves. Public law regulates the affairs of subjects vis-à-vis
public authorities. For centuries there were special remedies available in public
law. They were the prerogative writs of certiorari, mandamus and prohibition.
As I have shown, they were taken in the name of the sovereign against a public
authority which had failed to perform its duty to the public at large or had
performed it wrongly. Any subject could complain to the sovereign: and then the
King’s courts, at their discretion, would give him leave to issue such one of the
prerogative writs as was appropriate to meet his case. But these writs, as their
names show, only gave the remedies of quashing, commanding or prohibiting.
They did not enable a subject to recover damages against a public authority, nor
a declaration, nor an injunction. [. . .] But now we have witnessed a break-
through in our public law. It is done by Section 31 of the Supreme Court Act
[. . .]. Now [. . .] judicial review is available to give every kind of remedy.

1
2 • Introduction to Public Law

persons subject to its authority in connection with the performance of the

constitutional functions of the executive or legislative departments.’’3 In both
countries, however, cases concerning these remedies or rights are adjudicated in
the last resort by ordinary courts, remaining within their jurisdiction rather than
withheld for another court’s purview on account of their public law component.
Sometimes, though, the distinction between public law and private law is
glaring. Rather than being deduced in the legal system through various rules or
institutions, the distinction structures the whole legal system, constituting its
very backbone.4 Such is the case in France, where public law is radically
separate from private law: Two different high courts exist, one to adjudicate
private law disputes (Cour de cassation) and one to hear public law cases
(Conseil d’État). This division between two court systems has important
consequences for French legal education. All students take common courses
during the first three years of their legal studies, but then the curriculum splits,5
and the students graduate from law school with a specialization in either private
or public law.

3 Crowell v. Benson, 285 US 22, 50 (1932); Murray’s Lessee v. Hoboken Land &

Improvement Company, 18 How (59 US) 272 (1855). Another example of public law
institutions is the so-called public law litigation, an expression coined by Abram Chayes,
which refers to cases in which the federal courts are no longer called upon to resolve
private disputes between private individuals according to the principles of private law,
but instead, they are asked to deal with grievances over the administration of some public
or quasi-public program and to vindicate the public policies embodied in the governing
statutes or constitutional provisions, A. Chayes, ‘‘The Role of the Judge in Public Law
Litigation,’’ 89 Harv. L. Rev. 1281 (1976); A. Chayes, ‘‘Public Law Litigation and the
Burger Court,’’ 96 Harv. L. Rev. 4 (1982). On the public/private distinction in the United
States, see Morton J. Horowitz, ‘‘The History of the Public/ Private Distinction,’’ 130 U.
Penn. L. Rev. 1423 (1981-1982).
4 On the distinction between private law and public law in French law, see J.-B. Auby

(Ed.), The Public Law / Private Law Divide: Une entente assez cordiale, Oxford;
Portland, Or., Hart, 2006 [previously published in 2004 by LGDJ, Paris]; G. Chevrier,
‘‘Remarques sur l’introduction et les vicissitudes de la distinction du ‘jus privatum’ et du
‘jus publicum’ dans les œuvres des anciens juristes français,’’ APD (1952), p. 5; O.
Beaud, ‘‘La distinction entre droit public et droit public: un dualisme qui résiste aux
critiques’’ in J.-B. Auby & M. Friedland [Eds.], La distinction du droit public et du droit
privé: regards français et britanniques, Ed. Panthéon-Assas, 2004, p. 29; J. Caillosse,
‘‘Droit public—droit privé: sens et portée d’un partage académique,’’ AJDA 1996, p.
955; E. Desmons, ‘‘Droit privé, droit public,’’ DCC, p. 520; D. Truchet, Le droit public,
PUF, Coll. Que Sais-je?, 2003.
5 After three years, students earn a ‘‘licence,’’ or undergraduate diploma. In order to

practice, they must earn at least a master’s degree, which takes another two years. A
doctorate requires at least three years further study.
 Introduction • 3

These preliminary notes yield a first observation: Public law is to be found

everywhere. There are no States without some public law.
Public law as law of the res publica. Notwithstanding the diversity with
which the various legal systems of the world apply the distinction between
public and private law, some generalizations are in order. For instance,
everywhere, civil or commercial law regulates social relationships by taking into
account the fact that the state may be a party to such relationships; nowhere are
provinces, counties, or cities legally considered mere associations of citizens;
nowhere may a creditor of the State attach the funds held by a tax collector.6
Everywhere, special rules have been developed to deal with such situations
because, everywhere, common sense supports a res publica, a ‘‘public thing,’’ a
common wealth, existing alongside, or even above, the multitude of private
things. Each country has special rules to deal with situations that are of concern
for the ‘‘public thing,’’ the res publica. These rules form public law.

A. THE ROMAN FOUNDATIONS OF PUBLIC LAW

The Roman origin of the res publica. The concept of res publica is the
raison d’être of public law. Without a ‘‘public thing,’’ there would be no need
for legal rules to protect and develop the wealth of physical resources (territory,
population) and spiritual values (liberty, human rights) that a people inherits
from its ancestors and wishes to bequeath to its descendants.7
The res publica was created by the Romans to solve problems arising from
Roman domination of the Mediterranean basin. Rome’s urban institutions were
modeled after those of the ancient cities; it had a Senate and an assembly of
citizens that elected the magistrates. With the legions’ conquests, these
institutions became inadequate. Actually, they were already out of date when the
republic extended its government over the Italian peninsula. In order to avoid a
return to the Oriental tradition of power personified in a single man, such as the
Egyptian Pharaoh, the Romans invented the notion of res publica—the goods,

6 R. David, ‘‘Introduction,’’ International Encyclopedia of Comparative Law, Vol. II:

The Legal Systems of the World, Chapter 2: Structure and the Divisions of the Law, JCB
Mohr / Mouton, Tübingen / Paris, 2-19, p. 11.
7 To that extent, the res publica is the other side of the public good and it is felt

instinctively by the citizen. See R. N. Bellah, R. Madsen, W. M. Sullivan, A. Swindler, S.

M. Tipton, Habits of the Heart, Individualism and Commitment in American Life,
University of California Press, 1985, p. 193: ‘‘What is the content of the public good?
[T]he public good is based on the responsibility of one generation to the next, and [. . .]
an awareness of such a responsibility is a sine qua non for an understanding of the public
good.’’
4 • Introduction to Public Law

affairs, and institutions that are the ‘‘thing of the people,’’ a sort of property held
in common. The power of the people over their property is abstract and general;
no one possesses or exercises it personally or exclusively. The foundation of the
power is distinct from its exercise; the res publica belongs to everyone in
general and to no one in particular; everyone participates in it, but no one has
ownership of it.8
Cicero was the first author who defined the public thing as the thing
common to all, the thing of the people, a notion that eventually would turn into
the common good or the public good: res publica, res populi. ‘‘The public thing
is the thing of the people; and by people, I mean not just any gathering of
people, but a large group of people forming a society and united by their
adherence to a pact of justice and the sharing of common interests: juris
consensu et utilitatis communione sociatus.’’9 This ‘‘pact of justice’’ and the
‘‘community of interests’’ born of the solidarities between men are the two
pillars of the ‘‘public thing’’—the thing of the people, which later was viewed
as the common or public good, or the general interest, all these terms being
different expressions of the res publica. There is no polity without a ‘‘public
thing’’ because, as Sieyès put it in 1788 on the eve of the French Revolution: ‘‘It
is impossible to conceive of a legitimate association whose objects are not
common security, common liberty, in a word, the res publica (chose pub-
lique).’’10 The res publica is what ties the people together; it forms the raison
d’être of their will to live together, in short, to form a society.

8
On the discovery of the res publica by the Romans, see J. Ellul, Histoire des
institutions, Le moyen âge, PUF, Quadrige, 1999, p. 19.
9 Cicero, De la République, edited by A. Fouillée, Paris, Delagrave, 1868, p. 12.
10 E. Sieyès, Qu’est-ce que le Tiers État? PUF, Quadrige, 1989, p. 85. Sieyès’s phrase

in French reads as follows: ‘‘Il est impossible de concevoir une association légitime qui
n’ait pas pour objet la sécurité commune, la liberté commune, enfin la chose publique.’’
The English translation for ‘‘chose publique’’ (literally ‘‘public thing’’) is no easy matter.
Neither ‘‘common welfare’’ [E.-J. Sieyès, What Is the Third Estate? [Translated by M.
Blondel and edited, with historical notes, by S.E. Finer], Praeger Publishers, New
York,1964 pp. 156-57: ‘‘It is impossible to imagine a legitimate association whose object
would not be the common security, the common liberty, and, finally, the common
welfare’’], nor ‘‘public establishment’’ [E.-J. Sieyès, Political Writings: including the
debate between Sieyès and Tom Paine in 1791 [Translated by M. Sonenscher],
Indianapolis / Cambridge, 2003, p. 153: ‘‘It is impossible to conceive of a legitimate
association whose objects are not common security, common liberty, and a public
establishment’’] conveys the real meaning of chose publique, the French expression for
res publica, that is, according to Webster’s Dictionary, ‘‘the commonwealth, the State.’’
Instead of an impossible translation, I have chosen to keep the Latin expression as the
best word to convey the object of public law.
 Introduction • 5

Treatment of the res publica in Rome. Romans not only identified the
‘‘public thing.’’ Experts in legal matters, they also understood that the survival
of the ‘‘public thing’’ depends on its distinction from private things. The
‘‘public thing’’ must be subject to special rules, because it deals with things that
are common to all. There is, on the one hand, what is useful to one person
(singulorum utilitas) and, on the other, what is useful to a multitude of people.
What is useful to a multitude of people forms the ‘‘public thing,’’ the thing
collectively owned by the people, the res publica. It is distinct from the
multitude of other things that are privately owned and useful only to one person
or a small group of people such as a family or an enterprise. Notwithstanding the
variety of the criteria advanced to justify a distinction between public law and
private law, the fundamental criterion remains that of the persons and situations
to which the general notion of utilitas (utility) applies.11 Private utility

11 N. Bobbio, Democracy and Dictatorship [Translated by P. Kennedy], Minneapolis,

University of Minnesota Press, 1989, p. 3. Max Weber in his treatise Economy and
Society, particularly in the section on Sociology of Law, offered another criterion of
distinction between public law and private law [Economy and Society, Edited by G. Roth
& C. Wittich, University of California Press, 1978, vol. II, p. 642]. He suggested:
‘‘[P]rivate law might be contrasted with public law as the law of coordination as
distinguished from that of subordination.’’ As Bobbio noted (supra, at pp. 3-9), this
distinction between two types of social relationships (between equals and between
unequals) is often used as a template for supporting other academic oppositions such as
law and contract, the State and the market, the citizen and the bourgeois, natural law
(private law), and positive law (public law), the commutative justice that governs
exchange (private law), and the distributive justice that guides public authority in the
distribution of honors and duties (public law). These oppositions have to be handled with
care; they do not describe reality with exactitude if only because they are not mutually
exclusive and often overlap; rather they must be viewed as signposts that help to organize
reality without ever explaining it completely. Two criticisms have been articulated
against the dichotomy between the private and the public viewed as an opposition
between consent and coercion, coordination and subordination, agreement and domina-
tion. On the one hand, ‘‘in the first third of the twentieth century, American legal realists
argued that private rights between individuals should always be conceptualized as state
legal interventions designed to serve ends of public policy’’ [R. Post, ‘‘The Challenge of
Globalization to American Public Law Scholarship,’’ 2 Theoretical Inquiries in Law,
323, 324 (2001)]. Under a legal realist approach, all law, at the end of the day, may be
viewed as ‘‘coercive’’; it always carries with it elements of subordination because it may
always be enforced by the state apparatus. As Post rightly puts it: ‘‘We might reformulate
the difference between public and private law as one of enforcement; as a question of
whether the state pursues its ends by directly mandating compliance with legal norms
through its own criminal or administrative interventions or whether it decentralizes the
power to initiate such enforcement to private parties by affording them access to judicial
power. In either case, the content of legal norms will express a public vision of desirable
social relationships’’ (id, pp. 324-325). On the other hand, reducing public law to a law of
6 • Introduction to Public Law

(singulorum utilitas) is the one that individuals may pursue for their own
advantage. The res publica involves the general public utility (utilitatis
communione), which brings the people together in a society bound by common
objectives (the public good, the general welfare) as well as by legal bonds (the
Constitution). The conceptualization of the res publica as distinct from private
interests is one of the greatest legacies of Roman civilization. It is well
articulated in the opening statement to the great compilation of Roman laws that
form the Digest elaborated by order of Emperor Justinian in 530-533 B.C. The
Digest begins with the following definition of law:
The law obtains its name from justice; for (as Celsus elegantly says)
law is the art of knowing what is good and just.
(1) Anyone may properly call us the priest of this art, for we
cultivate justice and profess to know what is good and equitable,
dividing right from wrong, and distinguishing what is lawful from what
is unlawful; desiring to make men good through fear of punishment,
but also by the encouragement of reward; aiming (if I am not mistaken)
at a true, and not a pretended philosophy.
(2) Of this subject there are two divisions, public and private law.
Public law is that which has reference to the administration of the
Roman commonwealth; private law is that which concerns the interests
of individuals; for there are some things which are useful to the public,
and others which are of benefit to private persons. Public law has
reference to sacred ceremonies, and to the duties of priests and
magistrates. Private law is threefold in its nature, for it is derived either
from natural precepts, from those of nations, from those of the Civil
Law.12

subordination is somewhat inaccurate insofar as there are many public law situations in
which there is not the slightest trace of coercion: for instance, no one is obliged to take
advantage of a fiscal incentive, no one is obliged to run for a public office and, in most
countries, no one is obliged to go to the polls (voting is entirely voluntary). Moreover, in
those countries such as France where public law is distinct and separated from private law
by separate courts, private law courts may adjudicate many situations in which public
authorities are parties to the case, for example, when a public authority enters into a
private law contract with a private business (as in a sales contract).
12 Original text:
Hujus studii duae sunt positiones, publicum et privatum. Publicum jus est quod
ad statum rei Romanae spectat, privatum quod ad singulorum utilatem: sunt
enim quaedam publice utilia, quaedam privatim. Publicum jus in sacris, in
sacerdotibus, in magistratibus constitit. Privatum jus tripartum est: collectum
etenim est ex naturalibus praeceptis aut gentium aut civilibus (D, I, I, 2).
 Introduction • 7

The celebrated paragraph on the distinction between public and private law
is a quotation drawn from the Institutes of Ulpianus written three centuries
before. Ulpianus held the highest imperial office, the position of praetorian
prefect (the emperor’s principal legal officer). In 212 CE, the Emperor
Antoninus Caracalla enacted an edict that turned most of the residents of his
empire into Roman citizens. Known as the Constitutio Antoniniana, the edict
was probably adopted for fiscal reasons (i.e., to apply the inheritance tax levied
on the estates of citizens to more people), and it was, of course, of a public
nature. Apparently moved by the desire to reassure these new citizens to whom
the new public law now applied, Ulpianus elucidated the distinction between
public law and private law. Perhaps his goal was to convince these new
taxpayers that civil law—the law that concerned their interests as private
individuals—was distinct from public law.13 The civil law, henceforth applicable
to them as Roman citizens, could not be modified by the Emperor at will; it
would therefore protect them against imperial interference. The idea that private
law is a shield against governmental powers became foundational for modern
freedoms. The ‘‘barbarians’’ who overthrew the Roman Empire had no concept
of the ‘‘public thing’’; they knew nothing but the private spoils of war lords.
With them, public law fell into oblivion until the beginning of the Middle Ages,
when it was born again through the institution of monarchy.

B. THE GOVERNMENT OF THE RES PUBLICA

Presentation. Public law is based on the abstract idea that the public thing
cannot be treated like a private thing. Concretely, what does that mean? What
consequences are to be drawn from this principle? How special is—or should
be—the treatment of the public thing? For a long time, the treatment of the
public thing was very special indeed, because it was in the orbit of religion.
Modern public law came into being when the res publica freed itself from the
control of priests and pontiffs.

An English translation of the Digest by S. P. Scott (1932) is available at http://

[Link]/sps/[Link] Another English translation by Alan Watson is
available in Th. Mommsen, P. Krueger, and A. Watson (Eds.), The Digest of Justinian [5
volumes] University of Pennsylvania Press, 1985, vol. 1, p. 1. For the purpose of defining
public law, the key words are ‘‘quod ad statum rei Romanae spectat.’’ S. P. Scott
suggests ‘‘the administration of the Roman government’’ and A. Watson, ‘‘the
establishment of the Roman commonwealth.’’ Watson’s translation is more in line with
what constitutes the core element of public law in Roman law (i.e., the res publica).
13 P. Stein, Roman Law in European History, Cambridge University Press, 1999, p. 21.
8 • Introduction to Public Law

1. The Ancient World

Supremacy of religion. Originally, the public thing was governed by
religion, not by law. In ancient times, the rules regulating common life in the
city-state were inspired by religious commands and precepts. This is evidenced
by the Digest, which defines public law (jus publicum) as the law relating to the
Roman public things (statum rei Romanae): ‘‘Public law has reference to sacred
ceremonies, and to the duties of priests and magistrates.’’14
The definition of public law by the Digest is a perfect illustration of what
public law could mean for the Ancients. The basic tenet of the ancient world
was that the public thing was under the purview of religion and of religious
officers. Religion and the public thing were two sides of the same coin. Each
city worshiped its god and each god governed his city. The same code of rules
applied to the relations between men and their duties toward the city’s gods.
Religion governed the city-state, particularly, in determining its rulers through
drawing lots or by divination; in return, the State intervened in religious affairs
by directing individual consciences and punishing any departure from the rites
and the cults of the city.15 As Benjamin Constant said of the democracy of the
Ancients: ‘‘Nothing was left to individual independence, neither as a matter of
opinions nor as a matter of undertakings nor—still less—as a matter of religion.
The free choice of our beliefs which we hold to be one of our most precious
rights would have been regarded by the ancients as a felony and a sacrilege.’’16
If it is appropriate to refer to the concept of ‘‘State’’ in that period, the State was
in religion, and the religion was in the State. In practice, the common good of
the city was defined by prophesies and oracles. Public law, as we now
understand it, did not exist; or, to oversimplify, religion held what later became
law’s place.17 The substance of public law was therefore outside the law.

14 See supra note 12.

15 N. D. Fustel de Coulanges, La cité antique, Paris, Durand, 1864, pp. 517-518.
16 B. Constant, ‘‘De la liberté des anciens comparée à celle des modernes, Discours

prononcé à l’Athénée royale de Paris en 1819,’’ in Écrits politiques, Paris, Gallimard,

Folio Essais, 1997, p. 594.
17
In Roman law, criminal law is a matter of private law. Punishment of the crimes is
made in the interest of the victims. See P.-F. Girard, Manuel élémentaire de droit romain,
Rousseau, 1918, new edition Dalloz, 2002, p. 4; W. Kunkel, An Introduction to Roman
Legal and Constitutional History, 2nd ed., Oxford Clarendon Press, 1972, pp. 27-29.
Rules of criminal law are a rationalization of private vengeance. Their aim is to control
and limit the disastrous consequences of the vendetta system. Crimes against the public
good amount to crimes against the gods; they belong not to criminal law, but rather to
religion.
 Introduction • 9

Genuine law was ‘‘private law’’ which was not designated as such, but simply
by the word ‘‘law.’’

2. The Medieval World

The Christian doctrine. Christianity turned the ancient vision of a fusion
between religion and public good upside down. In teaching that his realm was
not part of this world, and in instructing his disciples to give to Caesar what
belongs to Caesar and to God what belongs to God, Jesus severed religion from
government. As the French historian Fustel de Coulanges pointed out in his
classic study on the city-state, the Christian religion was the first one that did not
claim that the law depended on it, the first concerned with duties rather than
rights and interests, and the first that did not attempt to regulate property, estates
and wills, torts, or procedure.18 Christianity as taught by the Catholic Church
paid no attention to property law—in other words, the core private law. It only
regulated some aspects of private law, in particular family law, because of the
important functions of the Church in matters of civil status, birth, and marriage
registration. The concern of the Catholic Church for public law followed a
completely different (or much more comprehensive) path.
The influence of the Catholic Church. The Christian religion, as institution-
alized in the Catholic Church, paid very close interest to the ‘‘public thing’’ and
the government of men. In France, it was the Church that endowed the French
monarchs with sacred status through the ceremony of consecration. Consecra-
tion turned the royal function into a duty to serve rather than a right to rule. The
Church completely transformed not only the monarch’s status, but also the
function of political power by redefining the role of government. Cicero had
underlined the need for government to preserve the public good in time and
space; the Church went even further. ‘‘Any people,’’ Cicero wrote, ‘‘that is to
say, any gathering of a multitude under the conditions I previously explained, in
short, any public thing, and by this, I mean, as I said before, the thing of the
people, needs in order to persist and last over time to be ruled by an intelligent
authority.’’19 This intelligent authority is political power in action (i.e., the
government).
The new idea the Church brought to government was that of the common
good. A ruler must govern, the Church said, not for his own private advantage,
but for the common advantage of the whole. It seems that the notion of common
good was introduced, first, to limit recourse to war in the barbaric, violent, and

18 Fustel de Coulanges, supra note 15, at pp. 517-522.

19 Cicero, supra note 9, at pp. 12-13.
10 • Introduction to Public Law

merciless world of the high Middle Ages. Later, it came to encompass the
totality of powers and rights exercised by the political authority. In the end, it
completely transformed the function of government.
The invention of modern government. By investing the medieval kings with
a general duty to rule over their estates and people for the common good, the
Church changed the nature of government. Striving for the common good cannot
be undertaken in the same ways as maintaining law and order; other means than
courts of law are called for. More specifically, securing the common good calls
for administrative structures such that the judicial State, the original form of the
royal State, is supplemented by an administrative State.
With the transformation of a judicial State into an administrative State, we
are at the heart of the radical novelty that the Church introduced in the bringing
into being of the idea of the common good. Michel Foucault called it
‘‘governmentality,’’20 a neologism he coined to convey the idea that, during the
sixteenth and seventeenth centuries, political power underwent dramatic changes
as a new doctrine emerged that political power was no longer in charge of the
res publica only, but also in charge of ‘‘men,’’ or rather, in charge of
‘‘souls’’—to use the language of Saint Thomas Aquinas, the initiator of the new
theory.21 In teaching that government means leading the governed towards the
end they are made for, the Church reinvented government and the practice of
governing; it created governmental power, a kind of collective soul.
The medieval regimen animarum, the ‘‘government of souls,’’ this ‘‘art of
arts’’ (ars artium) as the Church Fathers called it, laid down the basis for the
structure and proper working of the mechanism that, once secularized, turned
into modern government.22 During the Middle Ages, the management of the res
publica took a new turn; it became a mission, a duty, akin to service by a
religious minister. Traces of the change can still be found today in French public
law, with the so-called ‘‘missions of public service’’ (missions de service

20 M. Foucault, ‘‘La ‘gouvernementalité’,’’ Dits et écrits II, 1976-1988, Paris,

Gallimard, Quarto, 2001, p. 635. See also M. Foucault, ‘‘Governmentality,’’ in G.
Burchell, C. Gordon, and P. Miller (Eds.), The Foucault Effect: Studies in Governmental-
ity, Chicago, University of Chicago Press, 1991, p. 87.
21 On the Thomism doctrine, Saint Thomas Aquinas, On the Governance of Rulers (De

Regimine Principium), revised ed., translated from Latin by G. Phelan, Institute of

Medieval Studies, Sheed & Ward, London & New York, 1938. Adde M.-P. Deswarte,
‘‘Intérêt général, bien commun,’’ RDP, 1988, p. 1289.
22 On the coming into being of the modern government, M. Senellart, Les arts de

gouverner, Du regimen médiéval au concept de gouvernement, Paris, Seuil, Collection

Des Travaux, 1995, pp. 22-31; ‘‘Gouvernement,’’ DCJ, p. 768 and ‘‘Gouvernement,’’
DPP, p. 293.
 Introduction • 11

public), ‘‘burdens of general interest’’ (charges d’intérêt général), or ‘‘duties of

solidarity’’ (devoirs de solidarité)—all obligations imposed on public authori-
ties.23 So long as the Church was sufficiently respected and powerful to
influence kings in their exercise of power—and, thus, to render them subject to
the law (for a long time imagined to be the word of God)—public law could not
emancipate itself. It remained under the purview of religious officers.

3. The Modern World

Appearance of the notion of interest. In the sixteenth century, the content of
the res publica took yet another new course. The influence of the Church was by
then on the wane; ethics of charity, love for one’s neighbor, and self-sacrifice
were progressively abandoned. Another value—interest—won the day. In 1515,
Machiavelli set the tone in The Prince: ‘‘Love is lasting by virtue of a link of
recognition too weak for human perversity and prone to break apart at the
slightest call of personal interest.’’24 By stressing the shift in values that
eventually brought an end to medieval Christianity, the Florentine laid the
foundations for the autonomy of politics (i.e., the liberation of politics from
religion). He demonstrated that, in order to hold onto power, and govern, the
seigneury (as medieval parlance put it) must perpetuate itself, maintain itself in
state—eventually becoming a ‘‘State,’’ stable and permanent. To accomplish
this, the prince had to free himself from the Church’s commands. Rather than
work at making himself loved, he had to become feared. In other words, he had
to behave in conformity with rules and standards of virtue other than those
directed by the Church. Modern politics came of age, and public law
accompanied it.
Starting with the Renaissance, the management of the res publica was
organized according to political and moral standards different from those
implied by the notion of common good. Due to the triumph of nominalism,
‘‘common good’’ soon became just a word without substance. The old notion of
common good waned with the rise of individualism. Common sense limited the
former ‘‘common good’’ to a ‘‘public good,’’ necessarily implying a ‘‘private
good’’—and the old notion was diluted even further with the shift from the
‘‘public good’’ to the ‘‘public interest.’’ With the notion of ‘‘public interest,’’
public law definitively entered the secular age.

23 G.-J. Guglielmi and G. Koubi are right in pointing to the ‘‘links between religious

concepts and the coming into being of key notions of French administrative law,’’ Droit
du service public, Paris, Montchrestien, 2000, p. 18.
24 Machiavelli, The Prince, Chapter XVII: Cruelty and Clemency, available at http://

[Link]/mac/[Link].
12 • Introduction to Public Law

Since the ‘‘public thing’’ is today equated with the public interest, the first
step in the study of public law is to define the criteria by which this public
interest is identified as distinct from the private interest. The problem goes
further than the study of public law strictly speaking; it touches upon political
philosophy and jurisprudence. But it is impossible to have a clear idea of the
major legal systems of the world, to understand where they come from and
where they are going, without analyzing the general philosophy of the public
interest on which they are built. In brief, it may be said that since the fall of
communism,25 two major philosophical trends pervade the discourse on the

25 Communism was a unitary theory that realized a complete fusion between public

and private interest in line with the ideal of the ancient republic of the city-state and the
ideas of Plato [see V. Held, The Public Interest and Individual Interests, New York,
Basic Books, 1969, pp. 135-162]. The communist society like the ancient democracy
made no distinction between the private good and the public good (good amounting in
this case to happiness), the good of everyone being the condition for the good of all. No
distinction was made between the public and the private; there was no public interest per
se; there was one common good only under which all society’s interests were subsumed.
In the middle of the nineteenth century, Marxism reactivated the ancient conception of
the public good as it was understood and practiced in the ancient city-state. Hence, its
failure; the doctrine it professed was no longer in harmony with the mores and social
evolution.
The unitary conception of the public good has its foundations in a very tight social
unity. In these societies, what turns out to be in the interest of the community is
necessarily in the individual interest of its members too. The greatest good of the ancient
society (as well as that of the communist society) is that no one feels a need to cultivate
an individual interest contrary to the interest of everyone, with the result that the question
of the public good as an autonomous concept is irrelevant since the greatest happiness is
made of a complete fusion between the public good and the private interest of each
member of the community. In the societies where public interest is subordinated to
common interest, the individual interest is sacrificed to the collective interest. The
collapse of European communist societies at the end of the twentieth century
demonstrated the inadequacy of a unitary conception of the public good in the modern
age. The official survival of communism in China in the twenty-first century does not run
contrary to this. From communism, China actually kept the authoritarian structure of
political power that enable the ruling class to stay in power and whose origins go back to
the Marxist-Leninist theories relying on the one party’s dictatorship as a token for unity
of the State power. This being said, China no longer entertains a unitary conception of the
public good since private property, hence private interest, is officially recognized. From
the unitary conception of the public interest, which is nowadays much asleep, it appears
that modern public law cannot be the law of the common interest, a law based upon the
common good. Today, the word ‘‘common good’’ when still in use (a rare occurrence) is
a synonym for ‘‘public good.’’ Public law in the modern age is inconceivable without a
distinction between the private and the public.
 Introduction • 13

public interest today: liberalism and republicanism.26

Liberalism. Authors who support liberalism regard the public interest as the
total aggregation of private interests. Liberal theory is characterized by the belief
that the public interest can never be different from the sum of private interests;
the public good is identified with the maximum aggregation of individual
preferences. It is inseparable from the satisfaction of all individual interests. The
liberal theory of the public interest aims at ensuring the greatest protection to
individual interests; it therefore gives priority to liberty and considers that ‘‘if
someone has a right to something, then it is wrong for the government to deny it
to him even though it would be in the general interest to do so.’’27
Liberalism claims, in substance, that a measure meets the requirements of
the public interest if it satisfies all private interests. Under an economic analysis
of the law, in order to qualify as a measure of public interest, a law or a
regulation must meet the criterion of the so-called Pareto efficiency or Pareto
optimum. A measure is said to meet this test if it makes someone better off
without making someone else worse off, or, to put it differently, if it improves
someone’s situation without injuring anyone else. Inasmuch as, in reality, this
test can be met only in exceptional circumstances, liberalism is likely to
consider measures of alleged public interest—in other words, the laws—with a
skeptical, if not hostile, eye. Liberals tend to doubt that laws can be made so as
to satisfy the criteria of a true public interest. Thus, they eventually come to
associate less law with the citizens’ well being. Much inspired by the economic
theories of law, today’s liberalism opposes governmental power on the ground
that it is useless except to ensure public peace. They defend minimalist
approaches to legislation within the general framework of an economic theory of
law.
Republicanism. For those who defend republicanism, the public interest is
not reducible to an aggregation of private interests. Instead, the public interest is
the aggregation of the private interests that members of the society share in
common or, to be more precise, that members of a society decide to regard as
common in the social contract that forms the republican compact.
In this sense, the republican theory of the public interest is the opposite of
the liberal theory. It does not question for a moment the existence of a public

26 Both trends are still subject to intensive debate in the United States. See M. J.

Horowitz, ‘‘Republicanism and Liberalism in American Constitutional Thought,’’ 29

Wm. & Mary L. Rev. 57 (1987-1988)
27 R. Dworkin, Taking Rights Seriously, Harvard University Press, 1977, p. 269 and the

comments by F. Wieacker, ‘‘Foundations of European Legal Culture’’ [Translated and

annotated by E. Bodenheimer], 38 AJCL 1, 22, note 67 (1990).
14 • Introduction to Public Law

interest in itself; it believes in the existence of a public thing, a res publica,

autonomous and independent from private things. It defends the idea of a public
interest as distinct from the total aggregation of private interests. It aims at
ensuring the greatest protection for common interests, even, if necessary, against
private interests, because it operates on the premise laid down by Jean-Jacques
Rousseau: ‘‘The common element in these different interests is what forms the
social tie; and, were there no point of agreement between them all, no society
could exist.’’28 The public interest is the sum of the interests held in common by
society; it means ‘‘common security, common liberty,’’ or, as Sieyès put it in
one word, ‘‘the res publica (chose publique).’’29
The republican approach to the public interest is at the heart of the French
republican model. Its founding idea is simple and can be enunciated as follows:
Any gathering of people that forms a nation necessarily forms an association
whose object is a ‘‘public thing.’’ There exists therefore a public interest,
separate from private interests and forming a reality sui generis. Under this
model, the public interest, or the res publica, becomes the State.
The State is made not by the aggregation of all private interests, but by the
aggregation of those interests that men have decided to put in common by an act
of free will. The republican theory thus makes a sharp distinction between the
civil society and the State. Regarded as a fundamental guarantee of individual
freedom, this distinction leads republican authors to defend the autonomy of
public law. Their defense is based on their belief that the State (i.e., the res
publica) cannot be regulated by the same rules that regulate civil society, each
entity being driven by different goals.
Republicanism believes in the public good and seeks to attain it. For a
republican, the measure of public interest is that it satisfies the interests put in
common in the social contract. In terms of economic analysis, a measure of
public interest, for the republicans, is the Kaldor-Hicks concept of wealth
maximization. Under that approach, a measure is said to be efficient if, and only
if, those who benefit from the policy benefit sufficiently so as to compensate
those who lose. The winners need not in fact compensate the losers, but it must
be possible. This condition, which effectively transforms the public interest into

28 J.-J. Rousseau, The Social Contract, Book II, Chapter 1 [Translated by G. D. H.

Cole], available at [Link] Of course, these common

interests may vary from State to State. All States will include in it, at the minimum,
security and defense, a monetary system, justice for all; only a few will add to that social
protection against sickness, old age, unemployment, or still, a free and secular system of
education.
29 Sieyès, supra note 10, at p. 85. See Section A.
 Introduction • 15

the general interest—‘‘general’’ because it satisfies both public and private

interests—may actually be easily realized in practice. Capitalizing on the
optimistic prospects opened by this opportunity, republican authors attach much
value to sovereignty as a principle of political action, and they give preference to
the statute as an instrument for the public good. They often, but not always,
defend maximal approaches to legislation in pursuance of a political theory of
the statute.

C. PUBLIC LAW AND THE STATE

The coming into being of the State. Modern law is not severable from the
State insofar as it came into being with it, in the aftermath of the Protestant
reformation and its consequences across Europe. The invention of the State
completely changed the law, because it revolutionized the exercise of both
public and private power. The State united in itself all the dispersed powers of
feudal society; everywhere, it meant a concentration of power. In doing so, the
State freed men from oppression by private powers, by subjecting all private
powers to its oversight. This marked tremendous progress for freedom.30 By the

30 The progress realized by the emergence of the State for the affirmation of modern
liberty was luminously explained by E.-W. Böckenförde. Commenting upon the
consequences of the emergence of the State in the sixteenth century and the gradual
evolution toward a separation between the State and the civil society, the great German
legal scholar explains:
The numerous intermediary powers and the statutory orders of the old society
are piece by piece torn down, progressively eroded and deprived of the political
character. Step by step, individuals are freed from the former political
allegiances that knitted them to the old social structures of life and domination
(landlords, villages, parishes, and especially monasteries). Alone remains—and,
thus, acquires a special status—the relation of domination between the monarch
(territorial prince) and the subject: that relation becomes direct and, at the same
time that political theory endeavours to differentiate between the State’s
prerogative and the King’s prerogative, transforms itself into an immediate
relation between the State and the subject. The principle that tries to come to life
can be enunciated as follows: the power of domination must no longer be
exercised by certain individuals over some others, it must no longer be exercised
by an order (the nobility) over another (the commons), it must be exercised by
the holder of the State power only in an all-encompassing and equal manner over
everyone; for the rest, the individual is free, that is to say, free from all power,
but that of the State.
E.-W. Böckenförde, Le droit, l’État et la constitution démocratique, [Translated by O.
Jouanjan], Bruylant / LGDJ, 2000, p. 179.
16 • Introduction to Public Law

same token, in concentrating all powers, the State made it possible to conceive
of the public good as being outside religion and the Church of Rome.31
As soon as the Church lost its former legitimacy to define the public good,
to distinguish between good and bad, truth and error, justice and injustice,
temporal powers—princes and kings—stepped into its shoes. They spoke and
acted as the Church at the peak of its glory, when it sent thousands of faithful
believers to conquer the Holy Land or threw kings and princes into anguish by
the threat of excommunication. Now monarchs dressed in the same rich clothes
and surrounded themselves with the same magnificence; they invested
themselves with the same power the Church once had over the minds of the
people. They did so through a concept that the Church had largely invented and
which, once secularized, revolutionized public law—the concept of sovereignty.
From sovereignty, monarchs drew a power identical to that of the Church before
its collapse, when it ruled over souls by virtue of its infallibility. The true
character of sovereignty is, indeed, to be infallible, because it has the power of
the last word.
With sovereignty regarded as the source of all power on earth, kings and
princes even surpassed the Church in the power of domination they exercised
over men. They added to their dominion a particular power that the Church
never considered its own, insofar as it had no place in the Church’s spiritual
realm. That power is the right to resort to armed force and physical constraint.
Kings, who possessed that right in their feudal prerogatives from time
immemorial, drew it into the concept of sovereignty, asserting that the power to
resort to force fell within their exclusive jurisdiction. Armed force increased the
reach of sovereign power to a great extent. This made it possible, during the
century from Luther’s preachings to the Peace of Westphalia (1648), for the
sovereign State to become the compelling framework for thinking about and
undertaking the public good.
The capture of the ‘‘public thing’’ by the State forced public law to develop
first as an exclusively domestic branch of law. There is little doubt today that
domestic public law is the most important and complete branch of public law.
However, the encompassment of all things that are of public interest within the
sole sovereign State has long proved insufficient, making it possible for an

31 Both the State and the Church are forms of organizing social life as underlined by
M. Gauchet, ‘‘Primitive Religion and the Origins of the State,’’ in M. Lilla (Ed.), New
French Thought, Political Philosophy, Princeton University Press, 1994, p. 116: ‘‘Since
prehistoric times, man has striven for structured social organizations. The State is only
one manifestation of this structure, just as religion is another.’’
 Introduction • 17

external or international public law to develop alongside and often above

domestic public law.
Domestic public law. Every State has a public law, that is, once again, as we
understand that term in the present book, the collection of rules that relate to the
conceptualization and the management of the res publica. Public law contains
the same disciplines; what varies, however, from State to State is the density and
the thickness of these disciplines.
The fundamental disciplines of public law can be identified first by looking
at the very object of the public thing (i.e., the functions of the State). As a
starting point of analysis, we may look at Adam Smith’s groundbreaking work,
An Inquiry into the Nature and the Causes of the Wealth of Nations (1776) in
which he postulates ‘‘the system of natural liberty.’’32 Since 1789, such a
system—the system in which men are naturally free—is also the basis of French
law, as stated in article 1 of the Declaration of the Rights of Man and the
Citizen.33 For the great English economist:
According to the system of natural liberty, the sovereign has only three
duties to attend to; three duties of great importance, indeed, but plain
and intelligible to common understandings: first, the duty of protecting
the society from the violence and invasion of other independent
societies; secondly, the duty of protecting, as far as possible, every
member of the society from the injustice or oppression of every other
member of it, or the duty of establishing an exact administration of
justice; and, thirdly, the duty of erecting and maintaining certain
publick [sic] works and certain publick [sic] institutions, which it can
never be for the interest of any individual, or small number of
individuals, to erect and maintain; because the profit could never repay
the expence [sic] to any individual or small number of individuals,
though it may frequently do much more than repay it to a great
society.34
Adam Smith’s enumeration provides a clear reader’s guide for outlining the
major disciplines of public law.

32 A. Smith, An Inquiry into the Nature and the Causes of the Wealth of Nations, IV,
ix, Oxford University Press 1976, reprint Liberty Classics, Indianapolis, 1979, vol. II, p.
687.
33 Article 1 of the Declaration of the Rights of Man and of Citizen of 26 August 1789:

‘‘Men are born and remain free and equal in rights’’ (emphasis added).
34 Smith, supra note 32, at pp. 687-688.
18 • Introduction to Public Law

From the first duty derives the necessity of a government endowed with the
means (army, police) of protecting society, which implies a constitutional law
and a financial law (taxes and budget). From the second duty derives the need
for a system of law enforcement, that is, an administration and a system of law
courts, both of which call for rules to ensure their regular functioning (rules of
procedure, administrative law). Finally, from the third duty derives the necessity
for the State to provide that which the market does not provide: in other words,
the res publica must respond to the market’s failures.
The foundational four disciplines of domestic public law are constitutional
law, financial law, administrative law, and rules of procedure; they are the basis
for the foundation of the res publica. They may be found in every country. On
these common bases, a substantive public law, the content of which may be very
diverse, developed. At a minimum, this substantive public law always includes
the laws that punish felonies against the security of the State in attacks against
the ‘‘public thing,’’ that is, the pact of justice and the common interests upon
which the society is founded. Often, special jurisdictions are created to take
cognizance of and adjudicate these felonies in contradistinction to the ordinary
courts that are in charge of adjudicating all criminal cases. For instance, in the
early 1960s, special tribunals were created in France to adjudicate the terrorists
attacks linked to the war in Algeria; and recently, in the United States, military
tribunals were established to adjudicate the cases of those suspected of
involvement in the terrorist crimes of September 11, 2001. Such derogations to
the private nature of criminal law35 are to be explained by the fact that crimes
against the res publica are crimes against public, not private, interests and may
present peculiarities that make them unfit to be adjudicated by ordinary courts.
In France, the fear in the early 1960s was that members of juries sitting in
ordinary criminal courts could be subjected to blackmail or retaliation by the
accomplices of those who were tried for terrorism. Substantive public law today
also includes those laws that, due to the expansion of the objects regarded in the
twentieth century as relevant to the public good, are considered to constitute the
public law of the welfare State (educational law, health law, retirement and

35 As undertsood in French legal tradition, criminal law pertains to private law because

crimes against goods or persons usually involve private interests only; they are therefore
adjudicated by ordinary courts. It is worth noting that the special tribunals that existed
during the war in Algeria no longer exist. Terrorist crimes are nowadays adjudicated by
ordinary judges, sitting however in special formation, with no juries; laymen juries are
not available in cases of persons charged with terrorist activities.
 Introduction • 19

pension law). The diversity of these rules is so great that one may speak of
‘‘public law systems.’’36
International public law. The end of the Middle Ages marked the decline,
soon followed by the extinction, of the idea of a public good for the City of
Men, akin to that of the City of God that the Church relentlessly tried to promote
as a model to be followed by feudal lords. The common good became
conceivable only within the framework of the State. In order to regulate the
relations between the new sovereigns, a kind of code of conduct between them
took shape beyond the State’s borders. This code of conduct was first called the
law between ‘‘gentes’’ (law of nations) in continuation of medieval usages, the
‘‘gentes’’ being in this case the Roman gentes (i.e., families). For a long time,
the law of nations was a law between families, regulating relations between
Houses, that is, the dynasties that ruled over Europe. The law between these
monarchies was originally freighted with personal feelings, such as good faith,
respect for the given word, and the sworn faith. It was only in the eighteenth
century that these personal elements faded away, as the State as an abstract
entity made its way in the community of nations, thanks in particular to the
writings of Vattel.37 Only in the nineteenth century did the new expression
‘‘international law,’’ coined by Bentham, at last impose itself as the official
terminology.
This international law (often supplemented by the adjective ‘‘public’’ to
underline the fact that it applies to States only, not to private persons) regulates
impersonal relations between States. It is more a code of conduct than a true
law, inasmuch as each State is a judge in its own cause. Having no purposes
other than the well-being of its subjects, public international law turned the
ancient public thing common to all nations—the soul of Christian communi-
ty—into a multitude of small private things particular to each State. Having no
cherished object, other than the survival of the State, each with no ambition
other than its own welfare, its conservation and, if possible, the aggrandizement
of its wealth—formerly at the expense of other people (colonization), today at
the expense of the common good of all nations with environmental torts and
pollution—the former ‘‘classical’’ public international law, which reached its
golden age in the nineteenth century, was a law without a public thing. It
became a law whose unique object is the conservation of these small national

36 See C. Larsen, ‘‘The Future of Comparative Law: Public Legal Systems,’’ 21

Hastings Int’l & Comp. L. Rev. 847 (1998).

37 See E. Jouannet, Emer de Vattel et l’émergence doctrinale du droit international

classique, Paris, Pedone, 1998.

20 • Introduction to Public Law

societies, private and closed, represented by nation-states within the large

inter-State society.
One of the greatest changes in the twentieth century was the renaissance of
the ‘‘public thing’’ outside the framework of the State. There is little doubt that
the international public thing is not as rich and complete as the internal public
thing, but it is not an empty word; it is a reality made of patrimonial resources
(the common heritage of mankind that comprises the sea-bed beyond the limits
of national jurisdiction, outer space and celestial bodies, Antarctica, and
common goods such as the environment and resources of the high seas) and
spiritual values (peace, nonuse of force, human rights, democracy, human
dignity). Both patrimonial and spiritual values are protected by actors
(intergovernmental and nongovernmental organizations), rules (jus cogens),
legal techniques (unilateral acts of international organizations), concepts (crimes
against humanity), and institutions (international courts) that do not belong to
classical international law. These developments introduced ‘‘elements hence-
forth fundamental in the international legal order.’’38 For a large number of
international scholars, these elements are so fundamental that classical
international law is already left behind. Instead of giving preference to the State
in the exposition of international law, these scholars emphasize the solidarities
between people and go as far as giving to international law, which they view as
a law between the people of the United Nations another name, to contradistin-
guish it from classical international law. Thus, they often refer to ‘‘world law’’
or ‘‘the law of peace.’’39
When it seeks to put the emphasis on the solidarities between people rather
than on the States, the French language refers to ‘‘international public law.’’
This terminology was used for the first time by Léon Duguit,40 who did not
believe in the superiority of the State over individuals and who put the
individual first, before the State. The terms ‘‘public international law’’ and
‘‘international public law’’ cannot be interchanged. They stand for two different
ways of thinking about international law. As opposed to the term ‘‘public

38 P.-M. Dupuy, Droit international public, Précis Dalloz, 6th ed., 2002, § 520, p. 532.

French legal scholars are deeply divided over the importance and the meaning of these
developments. See the analysis of these divisions made by A. Carty, ‘‘Conservative and
Progressive Visions in French International Legal Doctrine,’’ 16 EJIL 525-27 (2005).
39 For instance, see the eight-volume encyclopaedia directed by the former Secretary-

General of the United Nations, Javier Perez de Cuellar, continued, expanded, and updated
by Y. S. Choue, World Encyclopedia of Peace, 2nd ed., Oceana Publications, Dobbs
Ferry, N.Y., 1999.
40 L. Duguit, Traité de droit constitutionnel, vol. I, 1927, § 67, pp. 713-733.
 Introduction • 21

international law’’ which ignores it and considers it as a chimera, the term

‘‘international public law’’ implies the existence of a ‘‘public thing’’ above the
State. The expression ‘‘international public law’’ was enshrined in French law
by the Preamble to the Constitution of 1946 (14th paragraph) that provides:
‘‘The French Republic, faithful to its traditions, abides by the rules of
international public law. It will not undertake wars of conquest and will never
use its arms against the freedom of any people.’’ The phrase ‘‘faithful to its
traditions’’ stands as a reminder that France, because of the Revolution of 1789
and, in particular, the revolutionary concept of national sovereignty, which rules
out the legitimacy of most classical international principles defining the
foundations of territorial jurisdiction (occupation, right of conquest, annexation),
introduced new ideas to international law and brought about a new conception of
relations between people.41
From public international law to international public law: The European
case. The transition from public international law to international public law is a
slow-moving process that usually advances in a piecemeal fashion and with
uncertain results. It has developed unevenly, sometimes prey to severe
set-backs, as exemplified by the sad destiny of collective security at the
universal level, today guaranteed only partially at a lower level with regional
military alliances such as the North Atlantic Treaty Organization (NATO).
However, it would be misleading to suppose from its imperfect realization at the
world level that it can never be achieved. An instructive example in this respect
is the evolution of public international law between European States in the
second half of the twentieth century.
In 1950, the law that regulated relations between European States was a
classical public international law in its purest form. Today, that law between
European States is, if not dead, at least deeply asleep. In less than half a century,
it has been replaced another law, community law, which is neither domestic
State law nor public international law, although it is public law. The truth of the
matter is that, to the extent that community law is public in nature, this is not
because community law is State law (the European Union (EU) is not a State),
but rather because community law is the law of a ‘public thing’; it is the law of
European ‘‘public thing,’’ the material and spiritual heritage of Europe. The
European public thing is what makes ‘‘the specificity of the Union’’ as
Jean-Paul Jacqué calls it;42 it encompasses objectives (both economic and

41 On the contribution of the French revolution to international law, see E. Zoller, Droit

des relations extérieures, Coll. Droit Fondamental, PUF, 1992, § 256.

42 J.-P. Jacqué, Droit institutionnel de l’Union européenne, 3rd ed., Dalloz, 2004, §§

54-138, pp. 44-82.

22 • Introduction to Public Law

political) and values (a community as such governed by the rule of law, respect
for fundamental rights, democratic principles, social justice, and cultural
pluralism) that makes it similar to a national ‘‘public thing,’’ although with less
intensity.
The European integration process stands as a reminder that public law
cannot be assimilated to State law. Lawyers realized this in the eighteenth
century, when they started thinking about the possibility of a public law at the
universal level, outside national borders. A good example of this way of
thinking is to be found in the distinction between general public law and special
public law made by the author of the entry ‘‘Droit public’’ (Public Law) in the
great Encyclopedia by Diderot and d’Alembert, a distinction that is very close
indeed to the current distinction between international public law and internal
public law.43 Public law is not the law of a State, nor can it be produced by and
through the State only; public law is the law of the public thing, and the public
thing is the result of solidarities between people; it begins to take shape when
these solidarities are strong enough to give birth to a ‘‘thing’’ that men want to
share, protect, and administer in common and that, because of this common
management, becomes ‘‘public.’’
There is no doubt that this public thing, which then turns into a res publica,
so to speak, may be placed under the protection of a State and may
institutionalize itself in a sovereign State with sovereign power, as was the rule
in Europe in the sixteenth century; but it may also take another institutional form
than the State model, as the EU example amply demonstrates.

43 The entry ‘‘Droit public’’ (Public Law) was written by Boucher d’Argis, a lawyer to
the Parliament (Court of Law) of Bordeaux, whose name has not left its mark in history.
It begins as follows:
Public law is that which is established for the common utility of people
considered as body politics, in contradistinction to private law which exists for
the private utility of people regarded as sole individuals, without consideration
for other individuals. Public law is either general or particular. General public
law regulates the foundations of civil society, which is common to most States,
and the common interests that States have inter se. Particular public law to each
State is . . . to establish and maintain the general police necessary to the public
peace and tranquillity of the State, to provide what is the most advantageous for
all members of the State whether collectively, or separately, whether for the
well-being of the souls, or of the body and wealth.
M. Diderot & M. d’Alembert (Eds.), Encyclopédie ou dictionnaire raisonné des sciences,
des arts et des métiers, Book V [Discussion—Esquinancie], 1755, p. 134, available at
[Link]
 Introduction • 23

Conclusion and Outline. The foregoing developments have demonstrated

that public law, at least as it is understood in French law, cannot be assimilated
to the theory of the State. This finding runs counter to the nineteenth-century
German scholarship articulating the so-called general theory of the State. Public
law today is in a state of flux because it is no longer possible to conceive the
public thing entirely within the sole sovereign State, as was the case in the
sixteenth century. In order to think clearly about public law, one must shift gears
and begin with its object, the res publica, or public thing—not with its subject,
the State. The State may remain a privileged framework for bringing the public
thing into being, but it is no longer the only one.
If the State plays such a crucial role in the bringing into being of the public
thing, it is because it has a tremendous advantage over rival institutions. The
State is the only subject of law considered to be legitimately vested with the
‘‘monopoly of physical coercion,’’ as Max Weber demonstrated.44 In this sense,
the State is the sole institution thus far through which the problem of violence
has been addressed. From this point of view, there is little doubt that public law
as the law of a public thing cannot begin to take shape before the problem of
violence is solved. This is why international public law (as opposed to public
international law) began to take form—at least as an idea—once war was no
longer considered a normal mode of dispute settlement between States. The
present work does not address international public law, nor does it address
European public law; neither can be consolidated, except by following the
developments that marked the progress of domestic public law. It is this
progress that is the subject of the present work.
Domestic public law went through an evolution ordered by history, so to
speak. It came into being in Europe in the continental monarchies where it
developed within the matrix of sovereignty (Book I). It came of age, first in
America, then in France, with the two revolutions that put an end to the
monarchical age and opened the republican age (Book II). It still continues to
evolve today, along two completely distinct republican paths in the United
States and in France, each country having chosen its own way to realize the
public good in modern society. In order to understand public law—to know
where it comes from and where it is going—one must pay attention to history
and comparative studies.

44 M. Weber, ‘‘Le métier et la vocation d’homme politique,’’ (1919), in Le savant et le

politique, Plon (1959), Collection 10/18, no. 134, p. 101.