17 J. Pub. L. 3 (1968)
The Public Law-Private Law Distinction in European and American Law

handle is hein.journals/emlj17 and id is 5 raw text is: THE PUBLIC LAW-PRIVATE LAW           DISTINCTION
IN EUROPEAN AND AMERICAN LAW*
John Henry Merrymant
Introduction.  THE DISTINCTION between public law and private law
seems to many continental European lawyers' to be fundamental, neces-
sary and, on the whole, evident. Institutional works, student manuals and
treatises contain discussions of the dichotomy, often in confidently dog-
matic terms that put to rest incipient doubts. The law student, who
encounters this sweeping division at the outset of his career, tends un-
critically to absorb it. It quickly becomes basic to his Rechtsanschauung.2
Some legal scholars attack the mighty cleavage3 as neither fundamental
nor necessary, and certainly not clear, but to the average continental law-
yer such questions seldom occur. He knows that public law and private
law are essentially different. Where classification as one or the other is
difficult, the tendency is to blame the positive legal order, which does not
yet adequately comprehend and articulate the true nature of the underlying
* This article was presented by the author at the Congress for Comparative
Law in Uppsala, Sweden, in August, 1966, and will be published as part of a festschrift
in honor of Charalambos Fragistas, Professor of Law, University of Thessalonika,
Greece.
t Professor of Law, Stanford University. The author expresses his indebtedness
to the late Dr. Fritz E. Oppenheimer and to Dr. George Torzsay-Biber for their as-
sistance in the preparation of this article.
1 The degree of commitment to the distinction varies widely within Europe.
In Switzerland it is embodied in Article 64 of the Federal Constitution; in other
nations its significance is doctrinal. It has not been possible, within the limits of this
article, to describe these variations in any detail. For introductory discussions of the
distinction of continental European legal thought as seen by French, German and
Italian scholars, respectively, see I. MARTY & P. REYNAUD, DRorr CIVIL ch. 4 (1961);
L. ENNECCERUS, ALLGEMEINER TEIL DES BURGERLICHEN RECHTS  34 (15th ed. 1959);
Pugliatti, Diritto pubblico e diritto privato, in 12 ENc. DEL DrnRrro 696 (1964).
While recognizing these variations, I have chosen to base the discussion of con-
tinental views on Italian law and legal scholarship, in part because of its tendency,
more than any other western European jurisdiction, to be a kind of paridigm of the
continental civil law. For a discussion of the reasons why Italian law is more repre-
sentative of the civil law tradition than either the French or German taken alone, see
Merryman, The Italian Style I: Doctrine, 18 STAN L. REV. 39, 40-42 (1965).
2 Legal perception. [Ed.]
3 The phrase is Holland's. T. HOLLAND, THE ELEMENTS OF JURISPRUDENCE
(13th ed. 1917).

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