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The Green Bag
that private law is pushed into the back ground by state law in the case of interests which we now recognize and
protect as interests of individuals, and which by such civilizations are given a very extensive protection as interests of the community.
From the standpoint of the modern conception of law the following proposi tions must be advanced: — l. The actual delimitation of private law from public law, a distinction which was already made by the Romans,‘ is
nothing other than an answer to the
conscription of persons capable of such service. Otficial rights and official powers which belong to public oflicers (or to public societies), or to military com
manders, are, in their essence, rights of the community. They are based only on social interests, and accordingly are public rights. These rights of public servants may also be considered as trans ferred on the part of the state. Or it may also lie in the public interest to
regard the possession of ofiicial authority as vested rights of such public officers.’ 3. The community, as well as indi
decisive question, Whose interest is to
vidual private persons, may coincidently
be protected? In the interest of whom shall an actual relation of fact be ele vated to a legal relation? The answer to this question lies with legislation. It must be regarded as the greatest function of legislation to determine what advantages shall be legal advantages of the community. The state in this activ ity, in which it creates a legislative public law (in the narrow sense), is
fact. It is also conceivable that such an interest may exist concurrently in the international community; in the dominant governing entity, whether of one or more states; in a community within the state; and in individual private persons. In such case the rela tion is protected by international, state and private standards.‘ The protection
have an interest as to any relation of
It may therefore
of the same interest by one standard
mark out the limits of public and private
does not exclude the others. Public interest may particularly require the fulfilment of a private agreement accord ing to its terms.‘
legally independent. interests as it wills.
In like manner,
the state may also establish a common domain for individuals and the com munity, in which interests of the community and of individuals are coin~
cidently invested with the protection of public and private law.‘ 2. Rights are created by public as well as by private law.
For example, the
state by virtue of established legal stand ards governing military service has a
right to demand the registration and tain ownership among these people (“tabu" and "blul") and community labor ("mokesang") see also Karl Semper, Die Palaoinreln, pp. 49, 72, 73, 120. “Ulpian, Dig. l, 1, 1, 2; also Julian, Dig. 1, 1, 4. 0As in the case of ownership. for the protection of which there may be public punishment, as in larceny. and action for a private remedy-resti tution or compensation. The interest in human life and in human health is another example.
4. Ethnological,
historical,
climatic
and other internal and external influ ences, which are of significance in legal evolution, operate with much greater difierence of consequence on the form
of public than of private law.
It is true
7C]. Garcia, Aug. Staatrreeht, in Marquardsen's Handbuch d. of. Reehts. Ed. I, pp. 13, 14. ‘5.3., the robbery and murder of a married soldier lying wounded on a battlefield by battle field ghouls may possibly include an infringement of all the standards mentioned. ‘Cf. Str. G. B., see. 329: "Whoever agrees with the public authorities for the delivery of provisions for the use of the army or the navy in time of war, or for necessities for use in a time of distress. and who shall intentionally fail to make delivery at the stipulated time. or in the stipulated manner. shall be imprisoned not less than six months. and may also be deprived of his civil status." — Gareis, Reichsgesetze. No. 143-146.
