I. The FieldDavid J. Danelski
II. Comparative Public LawStefan A. Riesenfeld and Gerhard Casper
The articles under this heading deal with public law as a field of study. A detailed guide to related articles can be found under Law.
Public law, viewed in its broadest terms as a field of inquiry in political science, embraces the study of all legal phenomena connected with politics or government. Whether specific phenomena— e.g., theories, rules, institutions, processes, and behaviors—are to be characterized as “legal” or “connected with politics or government” depends upon how law, politics, and government are defined.
An earlier conception of the field, which derived from the work of European legal scholars, was somewhat narrower. The terms public law, droit public, and offentliches Recht were understood as implying a functional dualism of the two main branches of positive law—private and public. Subdivisions of the former—e.g., commercial law—? were viewed as dealing with the resolution of conflicts among individuals, and subdivisions of the latter—e.g., criminal, administrative, and constitutional law—were viewed as dealing with the resolution of conflicts between individuals and government, governmental regulation of individual and corporate activity, and the powers and limits of government (Walz 1934).
American public law scholars have had diverse conceptions of their field. Some have viewed public law as identical with constitutional law; others have seen it as limited to the study of courts and judges; and still others have taken the view that it covers all rule making and rule interpretation intended for the guidance of governmental agencies. Noting these competing conceptions of the field, Swisher (1946) reported that most specialists saw no advantage in formulating a theoretical definition that would isolate the field’s distinguishing characteristics. They were content to define public law in terms of the areas in which they taught and did research, such as constitutional law, administrative law, jurisprudence, and judicial biography. Topics like civil liberties, judicial processes, and judicial behavior were later added on the same basis.
Closely related to practically every other field in political science, public law is one of the core fields of the discipline. Given the legal orientation of modern societies, there are few areas of government that do not have legal dimensions. Thus, constitutional law is linked with national and comparative politics, administrative law with public administration, jurisprudence with political theory, judicial behavior with political behavior, and so forth. When the American Political Science Association was established in 1903, the central position of public law was clearly recognized in the association’s stated purpose—“the scientific study of Politics, Public Law, Administration and Diplomacy.”
Public law is as old as political science itself, and at times the two have been almost indistinguishable. In the nineteenth century and early in the present century, the work of Europeans dominated the field. Krabbe, Duguit, and Laski are still familiar names in public law. But in the past several decades innovation and development in the field have occurred, for the most part, in the United States, where modern political science has made greatest strides as an autonomous discipline. For that reason, the work of American political scientists since World War n is emphasized.
The analytical approach
The influence of Staatslehre thought lay heavily on public law in the closing decades of the nineteenth century. Law was viewed as the command of the sovereign, and sovereignty was ascribed to the state, source and enforcer of all law. Analytical scholars explored the “true nature” of the state and constructed elaborate theories of sovereignty. Analysis was formal and deductive; its main purpose was to give coherence and logical consistency to accepted legal doctrines.
The works of W. W. Willoughby (esp. 1896; 1924) are prime examples of the analytical approach. Influenced by the writings of Austin, Jellinek, and Laband, he devised a highly abstract, juristic theory of government. Ironically, because of the rise of pragmatism and realism in political science early in Willoughby’s career, his work was already something of an anachronism during his lifetime. Nevertheless, it was taken seriously and discussed even as late as the 1940s (Cairns 1935; Cole 1948). But long before that, most political scientists had rejected Willoughby’s abstract theoretical writings as sterile legalism, and today they are of little more than historical interest [SeeWilloughby]. As in the earlier period, when the analytical approach was dominant, the significant contributions in this recent area have come from European-trained legal scholars (e.g., Kelsen 1945; Hart 1961), not from political scientists [SeeKelsen].
The juridical approach
Although it stems from analytical jurisprudence, the juridical approach is relatively unconcerned with general abstract theories of law, government, or the state. It views law primarily as a system of concepts, rules, and principles that are supposedly the basis of legal decisions. It focuses on constitutions, statutes, judicial decisions, and related phenomena, which are described, clarified, analyzed, and sometimes evaluated. Analysis emphasizes legal reasoning and probes the logic and consistency of legal decision making. Since the approach is concerned with the formal results of decision making, usually in terms of legal doctrine, it is necessarily formal; nevertheless, it can be tempered with considerable political realism.
The rise of the juridical approach and pragmatism coincide, and some juridical scholars (e.g., Powell 1918) clearly were influenced by the writings of pragmatists like John Dewey. Early in the twentieth century the foremost juridical scholar was Frank J. Goodnow, whose works in comparative and American administrative law (1893; 1905) are considered classics. His work was highly descriptive and based on extensive case analysis, yet it contained an incipient political realism, especially noticeable in his analysis of American- constitutional law (1911). And in this regard, his teaching was as important as his writing. “Goodnow,” wrote Haines and Dimock, “was constantly telling his students that government could not be understood and lasting improvements could not be made unless the political behavior and the political motivation underlying and eventually controlling constitutional and administrative law were properly mastered” (1935, p. xiii). [SeeGoodnow].
Goodnow’s students—Thomas Reed Powell and Charles Grove Haines, among others—carried forward political realism in public law. Together with Edward S. Corwin, they called attention to the fact that the Supreme Court of the United States, in interpreting the constitution, was making public policy. Powell, who emerged as the leading juridical scholar of the 1920s and 1930s, brilliantly analyzed the logic and rhetoric of Supreme Court opinions and showed that at times personal preference, not ineluctable legal logic, was the basis of constitutional decisions. Haines (1922) went even further and suggested, in an article now considered a forerunner of judicial behavioralism, that constitutional law might be systematically explained in terms of psychological motivation.
It must be emphasized that not all juridical scholarship is characterized by political realism. When Powell and Haines were writing, many juridical scholars were doing formal legal analysis of judicial decisions, and, to a lesser extent, this is so today.
The juridical approach reached its peak during the interwar years. Public law scholars of the period concentrated on constitutional law. Their work was published in leading law reviews as well as in political science journals; they were sought as members of law faculties; and a few of them were given legal posts in government. Powell, who had been trained in law before taking his doctorate in political science, spent most of his career teaching at the Columbia and Harvard law schools. Walter F. Dodd, a political scientist without a law degree, joined the Yale law faculty in the 1920s. And Corwin and Carl B. Swisher, who also had no formal legal training, were special assistants to the U.S. Attorney General in the 1930s. Perhaps the most significant tribute to public law specialists of the period was the prominence of their work in the Selected Essays on Constitutional Law (1938), which was edited by a committee of the Association of American Law Schools. About 40 per cent of the signed articles in the work were by political scientists—Powell and Corwin led all others with 23 and 14 articles, respectively. The work of Cushman, Haines, Dodd, Grant, Fairman, and Field also was represented. During this period juridical scholars were also highly esteemed in political science: Corwin, Powell, Haines, Cushman, and Dodd all became presidents of the American Political Science Association.
The juridical approach is still significant in public law. Constitutional law, usually taught by the case method, is the main public law course in American colleges and universities. As in the past, leading juridical scholars—e.g., David Fellman, William M. Beaney, and John P. Roche—still publish much of their work in law reviews. But the era of intellectual leadership by political scientists in constitutional law is over. Leadership has new passed to law professors, many of whom have been law clerks to Supreme Court justices.
The quality of juridical analysis has often been said to be the best in American political science. “If our scholarship in this general area is worthy of high praise,” wrote Hyneman (1959, p. 44), “it is because of distinguished achievement in describing, evaluating, and criticizing public policies which interpret, extend, and modify the language of the United States Constitution.”
Juridical scholarship has relevance beyond its contribution to the literature of political science. Corwin once said that if judges make law, so do legal commentators. Articles and books by juridical scholars are often cited in appellate briefs, arguments, and opinions. Thus their work in clarifying, criticizing, and analyzing legal doctrine is useful and perhaps influential in the judicial process. Mere citation of judicial scholarship in judicial opinions does not prove influence, but it does indicate that political scientists are often participants in, as well as observers of, the judicial process.
The historical approach
Early in his career, Corwin identified his approach to public law study as primarily historical. He took the position that because law is so avowedly historical in its manner and growth, it has to be understood historically. In practically every area of the historical approach, Corwin did pioneering work, and in many of these areas his contributions remain unsurpassed.
His conception of law showed the influence of historical jurisprudence, but it differed little from the juridical conception. This has been generally true of historically oriented public law specialists, many of whom were students of Corwin’s. The principal difference between the historical and juridical approaches lies not so much in the conception of law as in the method and the universe of phenomena regarded relevant for study. The historical scholar’s forte is genetic explanation, which, at its best, is based on sound historical method—use of primary sources, critical evaluation of evidence, and conclusions drawn strictly from the evidence. If he is interested in the American constitution, he will, like the juridical scholar, study judicial opinions, but his universe of phenomena embraces much more—public opinion, group activity, presidential decisions, congressional behavior, and anything else that may account for constitutional growth (see Swisher 1943).
Historical scholarship in public law has included legal ideas (e.g., Corwin 1928-1929), constitutional development (e.g., Swisher 1943), constitutional concepts and doctrines (e.g., Wright 1938), judicial institutions (e.g., McCloskey 1960), and case studies (e.g., Westin 1958). But the area that has received greatest attention since 1930 has been judicial biography.
Judicial biography began in an important way in the United States with the publication of the first two volumes of Beveridge’s Life of John Marshall (see 1916-1919), but Corwin’s brief biography (1919) of the same judge was equally important, for it set the model most judicial biographers in political science were to follow. The typical judicial biography, as distinguished from studies of the legal “philosophy” of judges, is based on private papers of the subject and other primary sources. The judge’s childhood is usually covered briefly; his legal and political career is covered in greater detail; and the bulk of the biography dwells on the judicial period, which gains focus from the judge’s opinions, private correspondence, conference memoranda, diaries, and intracourt communications. All of this is usually set against and woven into the political history of the period. When it is done well, the biography contributes significantly to the understanding of an era of history. Even when it does not rise to such heights, it often provides insights into judicial behavior and decision making. Among the political scientists who have written significant judicial biographies are Swisher (1935), Fairman (1939), Mason (1956), and Magrath (1963). Journalists, lawyers, and law professors have also written judicial biographies similar in approach to those of political scientists, and it appears that leadership in this area, as in constitutional law, is passing to those law professors who have been law clerks of Supreme Court justices, for they often have special access to necessary private papers, as well as personal experience with the judges about whom they write.
Historical scholarship in public law has often received high praise from historians. Some political scientists, such as Swisher and Mason, have used historical method so well that they are acknowledged as leading American constitutional historians. Criticism of historical scholarship has come largely from political scientists who maintain that such work is atheoretical and yields no systematic generalizations about legal and political phenomena. Although this is a fair characterization of most historical work in public law, the criticism is inapplicable to the historical approach generally, for historical inquiry can be informed by theory and can yield systematic generalizations. Such inquiry in public law, however, has barely begun.
Historical scholarship can play an important role in the judicial process. That is what Holmes had in mind when he wrote that “a page of history is worth a volume of logic” (256 U.S. 345, 349), and that is why Cardozo (1921) designated history as a conscious method of judicial decision making. Interpretations of constitutional provisions often turn upon historical assumptions that research can clarify and sometimes show to be unfounded. With a few exceptions (e.g., Graham 1938), relatively little work has been done in this area.
The ethical approach
The ethical approach raises the question of justice in regard to legal rules, decisions, behaviors, and similar phenomena. It is invariably taken by those who have an ideal conception of law, e.g., the proponents of natural law, who maintain that an unjust law is no law at all. But the ethical approach can also be used by those having other conceptions of law.
For centuries the leading ethical approach has been natural law, which asserts the existence of an absolute, transcendent standard knowable through the use of reason [see Natural Law]. Except for studies of natural law as a historical phenomenon (e.g., Corwin 1928-1929; Haines 1930), American public law scholars have had little to do with it. This was probably because of the field’s early commitment to analytical jurisprudence. The only major study using an ethical approach that comes close to natural law is Berns (1957).
The question of justice has been dealt with in terms other than natural law [SeeJustice]. Cardozo (1921; 1924; 1928) defined justice in terms of social values empirically ascertained. Brecht (1959) discussed justice similarly and indicated how ethical questions concerning law and politics might be approached in terms of scientific method. Brecht’s work opens a fruitful area of public law scholarship yet to be developed [SeeBrecht].
The group-process approach
Articulated initially by Arthur F. Bentley (1908), the conception of law underlying the group-process approach is that of a multitude of complexly related activities indicating the formation, systematization, struggle, and adaptation of group interests. Law, according to Bentley, does not result from government; it is the same phenomenon, “only stated from a different angle” ( 1949, p. 272). What distinguishes legal and governmental activity from all other activity is its connection with governmental agencies. “The law at bottom,” wrote Bentley, “can only be what the mass of the people actually does and tends to some extent to make other people do by means of governmental agencies” (ibid., p. 276). Courts are obvious governmental agencies, but their activity, Bentley maintained, can be explained only in relation to all other connected activity—i.e., the group struggle—and not in terms of logic, ideas, or theories propounded by judges in their official opinions.
The implications of Bentley’s conception of law were enormous, for it expanded the universe of phenomena relevant to public law to include the activity of criminals, policemen, prosecutors, lawyers, trial and appellate judges, law clerks, and anyone else whose actions are connected with the legal-governmental process. For its time, Bentley’s work was an important contribution. It was a kind of sociological jurisprudence, but it differed from Pound’s ideas in that area and was more advanced than Ehrlich’s work. Thus, it is almost incredible that Bentley’s work was ignored for more than two generations.
Bentley’s eventual “rediscovery” was by a law professor, Karl N. Llewellyn. “Bentley,” Llewellyn wrote, “saw and said in 1908 all that should have been necessary to force constitutional theory into total reconstruction” (1934, p. 1). Thereafter some political scientists (e.g., Shepard 1939) also recognized Bentley’s contribution to public law, but another generation went by before it had a substantial impact on the field. Then, in the early 1950s, a number of group-process studies touching public law were published (Truman 1951, chapter 15; Latham 1952; Peltason 1953; 1955). [SeeBentley; Llewellyn].
Peltason’s work had a special relevance to public law because he emphasized the role of courts and judges as participants in the group process. He iterated and clarified Bentley’s basic ideas and used them as the foundation for two studies concerning the federal judiciary (1955; 1961). Others, following his lead, extended group-process analysis to the state judiciary (e.g., Jacob 1965) and to the impact of judicial decisions on society (e.g., Patric 1957). The rise of the group-process approach in public law also stimulated a number of other studies, which, although not emphasizing Bent-leyan thought, viewed interest groups or the group process as central (e.g., Vose 1958; 1959; Grossman 1965).
The group-process approach has grown in importance since the 1950s. Its main contribution has been the description of a broad universe of legal phenomena. But in theoretical terms, group-process studies in public law have gone little beyond Bentley’s basic insights in 1908. The future importance of the approach turns on whether it is able to offer sophisticated explanation based on verifiable theory, and not merely careful description of legal-governmental processes. [SeePolitical GROUP ANALYSIS].
The behavioral approach
The behavioral approach seeks to explain legal phenomena in terms of operationally defined concepts and empirically verifiable hypotheses concerning human behavior. Focusing on the behavior of individuals in legal processes, it draws heavily on individual and social psychology. The approach involves prediction, usually understood in terms of probability; i.e., if phenomena X, Y, and Z are observed in some postulated relationship, then the probability is that R’, not R“, will occur (see Lasswell & McDougal 1943, p. 238). In order to confirm hypotheses underlying such a statement and to determine probability, quantitative methods are often used, but quantification per se does not characterize the behavioral approach.
Political and legal realism (e.g., Haines 1922; Frank 1930) were forerunners of behavioralism in public law, but the approach received greatest impetus in its early years from Charles E. Merriam. Critical of narrow legalism, he urged political scientists to use psychology, psychopathology, sociology, and statistics in their research. Statistical study of the judiciary, he pointed out in 1921, was a research frontier that could be profitably penetrated. He exhorted public law specialists to spend less time in the law library reading cases and more time doing empirical research (1926). And at the University of Chicago, Merriam provided the conditions for creative behavioral work [SeeMerriam]. Mott, one of his colleagues, responded early to his call for empirical research in public law (see, e.g., Mott et al. 1933). But Merriam’s greatest impact in public law came in the 1940s, through the work of two of his former students and colleagues, Harold D. Lasswell and C. Herman Pritchett.
Lasswell’s important work in public law began soon after he joined the Yale law faculty. In an article with McDougal (1943), he presented a profound criticism of the juridical approach (which he characterized as “syntactics“), sketched the outlines of a theory of judicial decision making, and indicated how the study of legal phenomena might be approached as a policy science. Although the article had an impact in legal circles, political scientists in public law manifested greater interest in one of Lasswell’s later works (1948), in which he presented psychoanalytical case histories of three judges (Judges X, Y, and Z) to illustrate basic political character types. Lasswell’s work in public law perhaps has not yet been fully appreciated. It appears that his influence in this area has been greater in law than in political science.
Modern behavioralism in public law began with the first of Pritchett’s pioneering studies (1941) that identified and described bloc voting in the Supreme Court of the United States by means of quantitative analysis of nonunanimous decisions. His novel methodology stemmed from the work of another Merriam student, Herman C. Beyle (1931), but Pritchett’s contribution was not just methodological. His study of the Roosevelt court (1948) skillfully blended behavioral, juridical, and historical approaches. Although it was one of the most innovative studies in more than a generation, initial response to it was critical on the ground that quantitative analysis was inappropriate in the study of the Supreme Court. Pritchett’s contribution then lay fallow for almost a decade, and even he began to move away from quantitative analysis (see 1954). But by the mid-1950s a number of scholars (e.g., Bernard 1955; Kort 1957; Schubert 1958) had become interested in the quantitative study of the judiciary, and judicial behavior became firmly established as a subfield of public law.
After Pritchett, the study of judicial behavior owes more to Glendon Schubert than to any other scholar. Influenced by the work of Pritchett, and also by Beyle, Schubert developed a number of quantitative methods others had explored, e.g., bloc analysis, cumulative scaling, and factor analysis. He was the first to use game theory in the analysis of judicial behavior and was also the first to set forth a psychometric model of judicial decision making. A prolific scholar, he wrote or edited most of the basic books in judicial behavior in the late 1950s and early 1960s (see, e.g., 1965). His review of the subfield’s literature (1963) comprehensively covers the work of such other judicial behavioral-ists as S. Sidney Ulmer, Joseph Tanenhaus, Harold Spaeth, John R. Schmidhauser, Stuart Nagel, Fred Kort, and David J. Danelski. [SeeJudiciary, article OnJUDICIAL BEHAVIOR].
Judicial behavioralism has been criticized on the grounds that its methods have been too crude to measure the subtle art of judging (Mendelson 1963), that it has ignored the question of justice (Berns 1963), and that often its use of social science theory and methods has been improper (Becker 1965). It is true that some of the early behavioral work seemed crude because it was empiricism uninformed by theory, and when theory developed elsewhere was employed, it was sometimes used rather loosely. Nevertheless, there is nothing peculiar about judicial decision making that makes it less susceptible to behavioral analysis than are other kinds of subtle political decision making. And such analysis can even be used, at least in a limited way, in dealing with questions of justice. As the behavioral approach becomes theoretically sophisticated and is used in a number of areas of public law, current criticisms are apt to be obviated.
The work of behavioralists in public law is potentially useful to participants in legal processes. If, for instance, judicial decision-making theory develops to the point where it has high predictability, it will probably be used by lawyers in deciding whether to settle or appeal individual cases. Such theory, of course, will also be useful to judges in understanding their own behavior.
The field in perspective
Although public law has responded to the major intellectual currents in law and political science, its response has often been late and then only partial. The field has given up old approaches reluctantly and has sought to accommodate the old with the new rather than to attempt bold reconstruction. That is illustrated by the juridical approach’s growing out of its analytical predecessor and making only mild concessions to pragmatism and realism. One of the reasons for the criticisms of the behavioral approach is that it is not susceptible to easy integration in the field. To accept behavioralism entirely would mean that much, though not all, in the older approaches would be forsaken. Given the field’s historically conservative attitude in such matters, most of its specialists are unwilling to go that far. Indeed, it is probably because of its conservatism that public law has in recent years followed rather than led the discipline.
Public law in the United States has been preoccupied with the Supreme Court and its decisions. The court is prominent even in the work of those who use the group-process approach (see Vose 1959; Peltason 1961). That is not surprising, for the Supreme Court is a public law phenomenon par excellence; it is simultaneously a legal and a political institution, making decisions that have a corresponding dual character. Although studies of the Supreme Court and its decisions have been the core of public law in the United States, there has always been some interest in public law phenomena in the states and in foreign countries (see, e.g., Mitau 1965; Grant 1958). The approaches taken have usually been juridical or historical (e.g., Bayley 1962), but recently the behavioral approach has also touched this area, and scholars in a number of countries have begun to study judicial behavior much in the manner of American behavioralists (e.g., Hayakawa 1962).
An examination of the rise of various approaches indicates a trend away from formalism toward rigorous empiricism. This was due, apparently, to successive responses to pragmatism, political realism, legal realism, and behavioralism. The only major exception is the work of Berns (1957), which has not started a countertrend. On the contrary, the trend in ethical analysis in public law appears to be consistent with modern scientific method (see Brecht 1959).
Despite public law’s importance in political science during certain periods of its history, it is difficult to point to significant theoretical contributions. To be sure, there was Willoughby’s juristic theory and there were Bentleys insights concerning the legal-governmental process. But in regard to other areas of public law scholarship the theoretical contributions have been slight. Behavioralists are now developing microtheories of judicial decision making, but whether their work will be significant remains to be seen. All in all, the greatest single failing in public law appears to have been in the area of theory.
The current state and prospects. Public law has fallen from the high place it once occupied in political science. In terms of significance of its recent work, a survey (Somit & Tanenhaus 1964) has shown that it ranks lower than any other field in political science except political theory. Also, in recent years there has been a relative decline in the number of political scientists entering the field. These phenomena are probably related to the field’s failure to keep abreast with the discipline, deep divisions within it concerning approaches and assumptions, and the fact that today an adequate training in public law requires proficiency in practically all of its approaches.
Nevertheless, there are some indications that the field is experiencing a resurgence. In the early 1950s, a committee of the American Political Science Association expressed concern about the neglect of public law in the discipline, and not long thereafter one public law specialist was ready to concede that the field had “all but disappeared as a recognized object of study of political science“(Sherwood 1958, p. 87). Despite such estimates, the field is very much alive today. The group and behavioral approaches, if they did nothing else, at least brought public law into the main stream of political science.
There have been some attempts at integration of approaches. Some public law specialists have taken the position that for certain purposes all of the approaches can be useful and that much can be learned by integrating old and new approaches. For example, Johnson (1965) has used group-process and behavioral approaches in his study of the impact of Supreme Court decisions; Danelski (1961; 1964) and Murphy (1964) have used historical and behavioral approaches in their studies of the Supreme Court.
Public law is a field in transition. Convergence of approaches will facilitate transition, but the direction of movement seems clear. The field will acquire a measure of unity in a sophisticated, broad-gauged behavioralism that will take into account knowledge gained through the use of the other approaches. The change will be evolutionary, and traditional approaches, somewhat modified, will probably be used for some time to come.
As the field moves toward the behavioral approach, it is likely to make theoretical contributions that will have significance beyond the study of public law. If important theoretical contributions are forthcoming from the study of collegial judicial decision making, they will be useful in the study of legislative committees, administrative bodies, and other similar decision-making groups. The highest achievement of the field would be the development of a general theory of public law. If that is accomplished, public law will perhaps regain the high place it once occupied in political science.
David J. Danelski
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Comparative public law is that academic discipline which investigates problems of public law by use of the comparative method.
Scope, aims, and potentialities
Constitutional law, administrative law, criminal law, tax law, labor law, welfare law, and antitrust law, as well as the law relating to civil and criminal procedure, are now considered to be “public law“even in countries which traditionally did not differentiate between public and private law along the lines followed by legal theory in continental Europe. It can hardly be denied that these fields deal with quite disparate matters involving great varieties of social, political, and organizational problems, and have little in common. Any attempt to define public law in terms of a self-contained category suffers from the ambiguities inherent in the dichotomy of “public“and “private“or in such distinction as that between the interests of the individual and the commonweal. Historically the bipartition found its classical formulation in Ulpian’s statement: publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem (”Public law is that which focuses upon the status of the Roman commonwealth, while private law pertains to the interests of individuals“: Digest I, 1, 1, 2). It played a shadowy role during the Middle Ages and gained new currency during the seventeenth century with the emergence of the modern state. During the nineteenth century, when the distinction between private and public law had its heyday, it paralleled the supposed dualism between state and society. Currently, however, this antinomy has been abandoned because it rests on a contraposition of the state, conceived as an independent entity, to society, likewise conceived as an independent entity, a theory closely linked to nineteenth-century European liberal doctrine. Yet the views regarding the antithesis between public and private law are significant from a comparative point of view, since they suggest varying notions about the relationships between the individual and collective spheres in time and space.
No less perplexing than the borderline between comparative public law and comparative private law is the line of demarcation which separates comparative public law from comparative studies in the fields of sociology of law and political science. Although at the turn of the century links between law and the newly emerging disciplines of political science and sociology were still rather close, the subsequent emphasis of political science and sociology on “factual“inquiries rather than on “normative“data led to an increasing divergence. The legal perspectives in early political science are exemplified by the impact of the German allgemeine Staatslehre on Burgess (1890-1891) and of European administrative law on Goodnow (1893); Max Weber’s work in sociology also reflects his legal background.
Conversely, modern legal scholarship, stimulated by contemporary schools of jurisprudence, such as Roscoe Pound’s sociological school, the legal realists, the policy-oriented approach of Lasswell and McDougal, and the psychoanalytical interpretation, has embarked on a methodological reorientation and endeavors to utilize the full scope of historical, economic, sociological, and behaviorist techniques. As a result, disciplinary boundaries have become of secondary importance. Perhaps it can be said that the main distinction between comparative public law and other comparative social sciences is the vantage point from which phenomena are selected and viewed.
Another set of boundaries of the scope of comparative public law results from restrictions inherent in the comparative method itself. Except for cases of mere cataloging or sheer contrast, fruitful comparison is predicated on some similarity of political or economic organization, technological advance, or value scales.
The difficulties attending upon the requisite comparability are least pronounced with respect to institutional techniques devised to respond to common problems and needs, e.g., social security arrangements established to alleviate the effects of economic dependency flowing from an industrialized society. In such areas, public law comparison is similar to comparative private law studies and can benefit from their methodology: functional analysis applied to the solution of specific policy problems. In fields where political habits, institutions, and value judgments play a dominant part, comparative studies must properly assess the role of these factors. Needless to say, the elements of the requisite comparability vary greatly with the nature, range, and purposes of the comparative inquiry.
The aims of comparative public law, like the purposes of comparative law in general, are both cognitive and normative. In this respect it has the protean aspects of all legal studies. In the cognitive perspective comparative public law parallels comparative empirical research in the social sciences. In the normative perspective it manifests the specific attributes of all legal research, i.e., it is directed toward law reform. In designating comparative legal studies as primarily cognitive, one does not, of course, exclude normative elements altogether, since a better understanding of the way in which legal institutions operate may in turn influence their acceptance or rejection. From this vantage point comparative public law possesses major educational significance.
The practical value of comparative public law has traditionally been emphasized in two areas: negotiation and application of multinational treaties, and law reform. A modern example of the importance of comparative public law in the interpretation of multinational agreements is furnished by the construction of the term “misuse of power“as a ground for the annulment of administrative acts (see Coal and Steel Community Treaty, art. 33; European Economic Community Treaty, art. 173; Euratom Treaty, art. 146). In arriving at the proper meaning, the Court of Justice for the European Economic Community, basing its holding on the comparative discussions of the advocate general, searched for a common core in the administrative laws of the community countries.
In the field of law reform, the examples of the use of comparative public law are countless. It can be said without exaggeration that since the beginning of the twentieth century no major constitutional revision or introduction of important new legal institutions has taken place without extensive comparative studies. The establishment of separate courts for deciding constitutional questions in several European countries, the creation of the social security system in the United States, and the development of the Mexican writ of amparo in analogy to habeas corpus provide good illustrations.
Although it has been suggested by pioneers in legal comparison, such as H. C. Gutteridge (1946), that the extent to which the comparative process may yield valuable results is open to doubt when problems of political significance are under consideration, experience seems to have shown that given proper awareness of the ideological ramifications, even the transplantation of major political institutions is possible. Gneist’s studies of British local self-government (1857-1860) furnished a powerful impetus toward a restructuring of Prussian municipal organization. Moreover, in some Western countries, recent interludes of departure from established principles, especially in the area of civil liberties, have led to re-examinations of the legal systems of these countries intended to test their consonance with accepted values and goals of the Western tradition. Certainly much of modern German and Italian legal literature is the outgrowth of such efforts in comparative law.
The growth of comparative public law came in the wake of the emergence of the modern nation-state, as an aftermath of the rise of different social and political patterns within the orbit of the Western world, and as a result of the acceptance of comparison as a tool of scholarly inquiry. The work of Jean Bodin at the end of the sixteenth century may be considered as the starting point and an early masterpiece of the modern discipline [SeeBodin]. His analysis of the state and the role of government was buttressed by an impressive and far-flung comparison of the existing realities of his time seen in the light of legal principles derived from Roman law. The works of Leibniz and Vico in the next century and a half reflect the effort to arrive at the essence of legal authority and government on the basis of historical and comparative insights. [See the biography of Vico.]
In contrast, the writers of the subsequent period emphasized the effects of environmental factors as causes of diversity and attempted comparisons on that basis. Undoubtedly Montesquieu’s L’esprit des lois (1748) heralded a new era in comparative constitutional law and made an indelible impression on his time [SeeMontesquieu]. Although Montesquieu’s comparison of the French and English constitutions was tendentious and lopsided, it proved the value and inherent political potentialities of such studies. Accordingly, comparative surveys and critiques in Montesquieu’s fashion were widely used by authors following him. The most notable studies of that type are Robertson’s “View of the Progress of Society in Europe, With Respect to Interior Government, Laws and Manners,“which was an essay preliminary to his comprehensive History of the Reign of the Emperor Charles the Fifth (1769), and Filangieri’s Science of Legislation (1780-1785). Robertson’s essay was familiar to and quoted by members of the Constitutional Convention of 1787, especially in conjunction with the discussion of judicial review, and Filangieri’s treatise is known to have elicited Franklin’s admiration. Moreover, Filangieri, whose chapter on the divisions of criminal law demonstrably relied on Blackstone’s genius for sys-tematization, exerted a far-reaching impact on the early continental European codifications made not long after his death.
During the nineteenth century, comparative public law in Europe, and particularly in Germany, shifted its principal focuses to criminal law and administrative law. In criminal law it was particularly Anton Mittermaier who, following the precepts of his teacher Ludwig Feuerbach, most fruitfully employed the comparative inquiry which gained him international repute. His penchant for comparison was manifested in all of his literary efforts but was most fruitfully employed in his endeavors toward a far-reaching reform of criminal procedure based on insights gained from French, English, and American practice. His predilection for comparison caused his rejection of the doctrinal-conceptualistic approach then in vogue with many of his contemporaries. In 1829, Mittermaier and Heinrich Albert Zachariae founded the Kritische Zeitschrift fiir Rechtswissenschaft und Gesetzgebung des Auslandes, which was the first periodical in the world devoted to the study of comparative law. The works of Gneist in administrative law and their importance have already been mentioned.
During the middle of the nineteenth century, scope and methodology of comparative law, including comparative public law, became a matter of academic discussion and controversy. Emerico Amari set off that debate with his Critica di una scienza delle legislazioni comparate (1857). Although the work itself was soon forgotten and properly appreciated only much later, its initial impact persisted. The questions whether comparative law was a subject of its own or merely a method and whether it should be treated from a philosophical or historical-sociological point of view especially became and remained matters of much discussion. In Germany, the work of Joseph Kohler and his school concentrated on the ethnological-cultural aspects of the field. But the theoretical disputes were soon pushed into the background by the increasing institutionalization of the field: the establishment of societies for the study of comparative legislation, the creation of institutes of comparative law, and the publication of periodicals devoted exclusively to comparative law and comparative legislation.
This development started in France in 1869, with the formation of the Societe de Legislation Comparee. In the year of its establishment the society commenced publication of its celebrated Bulletin. Even prior to that date the French jurist Foelix published the Revue etrangere de legislation et d’economie politique, which, under various titles, appeared between 1833 and 1849. It counted on its roster of distinguished foreign collaborators such eminent American jurists as Joseph Story and Francis Lieber. Likewise, in 1869 the Revue de droit international et de legislation comparee, printed in Belgium, was established by Asser, Rolin-Jacquemyns, and Westlake. The German Zeitschrift fiir vergleichende Rechtswissenschaft, edited by Bernhoft, Cohn, and, after the first two volumes, Kohler, followed in 1878. In England the Society of Comparative Legislation was formed in 1895 and commenced to publish the Journal of Comparative Legislation and International Law in 1899.
During the twentieth century, especially in the wake of World War I, the study of comparative law has become much expanded and intensified. Institutes of comparative law have been established in many universities of the world. During this period comparative public law has emerged as a separate branch of comparative legal studies. In Germany this development found an outward manifestation in the establishment, by the Kaiser Wilhelm Gesellschaft zur Forderung der Wissenschaften, of a separate Institut fiir Auslandisches Offentliches Recht und Volkerrecht (now the Max-Planck-In-stitut in Heidelberg) alongside the Institut fiir Auslandisches und Internationales Privatrecht in 1926. In France the Revue du droit public et de la science politique en France et a I’etranger, established in 1894, devoted special attention to comparative constitutional and administrative law. In the United States, the University of California instituted a course of lectures in comparative public law, given in 1917 by Ludwik Ehrlich; and the Harvard Law School appointed Joseph Redlich, a specialist in comparative public law, as its first professor of comparative law in 1926. The increased importance of comparative studies in the various branches of public law led to the gradual emergence of a number of relatively independent subfields.
Major areas of comparative public law
Comparative constitutional law
Comparative constitutional law is probably the oldest branch of comparative public law. The notions of popular sovereignty and constitutionalism, which demanded that all powers of government be fixed in a fundamental charter, determining the organization and powers of the authorities, gave a powerful impetus to studies of that type [SeeSovereignty]. Among English-speaking people they were manifested in the Utopian literature, particularly in Harrington’s Commonwealth of Oceana. During Cromwell’s regime its author actually undertook a comparative study of constitutions, and his ideas exerted a demonstrable impact both on the constitution makers in the United States and on the political conceptions of Montesquieu. The American experiment, in turn, had its repercussions on the constitutional ideas of the French Revolution. During the middle of the nineteenth century the quest for written constitutions found a fertile ground in Germany. The acquisition of independence by the Spanish colonies in the New World was followed by the adoption of written constitutions by the newly formed states. The constitution of Argentina of 1853 was directly modeled after the constitution of the United States, although other constitutional arrangements were not neglected, and the constitutional decisions of the Supreme Court of the United States were frequently relied upon and quoted in the adjudications of the Argentine Supreme Court. The British North America Act of 1867 and the Australia Constitution Act of 1900, which, on a federal basis, form the governmental framework of Canada and Australia, respectively, likewise were the product of comparative studies and in turn provided a strong motivation for further comparative researches. In modern days many new nations formed in other parts of the globe have been confronted with the problem of the extent to which they should borrow from existing constitutional models [SeeConstitutions And Constitutionalism]. In addition, the creation of supranational communities in Europe and elsewhere has given new significance to comparative studies of federal structures [SeeFederalism]. Other matters which have attracted particular attention from students of comparative constitutional law are the constitutional recognition and judicial protection of human rights and the experiences with the judicial control of the constitutionality of legislation. [SeeConstitutional Law].
Comparative administrative law
Comparative administrative law is a more recent branch of comparative law. It has taken its subject matter from an assessment of the Council of State of France, which during the second half of the nineteenth century developed into the supreme administrative tribunal of that nation and succeeded in building up administrative law as a separate body of legal principles governing administrative action. The success of this court inspired Otto Mayer in the late nineteenth century to develop comparative administrative law as a special field of comparative inquiry. Scholars in other countries, especially Frank Goodnow in the United States, followed in his footsteps [SeeGoodnow]. Comparison in administrative law has focused on three major issues concerning the relationship between the citizen and public authorities that were prompted by the ever-increasing scope of the activities of the modern state: (1) the judicial control of the legality of administrative action, (2) the attribution of such control to separate administrative tribunals instead of to the ordinary courts, and (3) the organization of such tribunals. Contemporary critics maintain that the ordinary courts in Great Britain and the United States have failed to exercise adequate supervision over legality and abuse of discretion in administrative action and to advocate the use of Continental models. Against them, however, it has been argued that bifurcation of the administration of justice results in unnecessary conflicts between jurisdictions and in a break in the uniformity of the legal system. Moreover, this different attitude regarding the scope of judicial control stems from different ideas about the range of policy judgments properly left to the bureaucracy and from different emphases placed on policy-making stage and policy execution. [SeeAdministrative Law].
Comparative criminal law
Research in comparative criminal law received its original impetus from the publication of Beccaria’s An Essay on Crimes and Punishments (1764) and the resulting reform movement [SeeBeccaria]. It prompted the announcement of a prize for the best work proposing a plan for complete and detailed legislation covering substantive criminal law and criminal procedure, including the process of proof. Voltaire took a leading part in that venture. Since those days the problem of the proper treatment of criminals has been much discussed both internationally and comparatively in Europe and elsewhere. The University of Paris established a special chair for comparative criminal law as early as 1846, Joseph Louis Ortolan being its first incumbent. In England the “Fourth Report“of the Royal Commissioners of Criminal Law (Great Britain …1834-1845) noted expressly that their reform proposals were based on a study of the contemporary criminal codes in Europe and the United States and the writings of foreign jurists, and in Germany the preparation of a new penal code induced the German Ministry of Justice to sponsor the systematic comparison of foreign criminal legislation. A 16-volume treatise entitled Vergleichende Darstellung des deutschen und auslandischen Straf-rechts (1905-1909) was produced, a work which has been hailed as a landmark in the history of comparative studies. Today such institutions as the indeterminate sentence, preventive measures, and adult and juvenile authorities have been subjects of elaborate comparative study. The whole range of the causes and control of delinquency is particularly appropriate for such types of inquiry, and criminological research has become truly international in scope. [SeeCriminal Law].
Comparative civil procedure
The range of comparative legal studies has also been extended to the field of civil procedure and related subjects, such as bankruptcy. The roles of the judge and of the parties in a civil trial, the rules of evidence and testimonial privileges, and the effect of adjudications are the subject of numerous modern comparative studies in various countries.
Comparative labor and social security law
The process of industrialization has given rise to many institutions which have developed in a parallel fashion in many countries, for example, collective bargaining and social insurance systems. In many instances the legislation of certain pioneer nations in the field has been transplanted and adapted by other nations. Much of the comparative work is done through international organizations such as the International Labor Office or international associations such as the International Association for Social Security.
Comparative tax and antitrust law
The tremendous growth of the functions of the modern state has been accompanied by a parallel increase in its need for revenues. As a result, the law of taxation has become one of the most important branches of public law, and thus has become the subject of a vast number of comparative studies. Moreover, the harmonization of tax laws is one of the difficult tasks to be faced by the new supranational organizations. Finally, it should be noted that the current efforts to create economies of scale and the policy of relying on untrammeled market forces as a means of economic progress have led to the growth of comparative antitrust law as a new and extended discipline [SeeAntitrust Legislation; Taxation].
Stefan A. Riesenfeld and Gerhard Casper
[See alsoConflict Of Laws; Legal Systems, article onComparative Law And Legal Systems. Other relevant material may be found inInternational Law; Politics, Comparative; and in the articles listed in the guide to the reader underLaw].
Books And Articles
Amari, Emerico 1857 Critica di una scienza delle legislazioni comparate. Genoa (Italy): Sordomuti.
Beccaria, Cesare Bones An A (1764) 1953 An Essay on Crimes and Punishments. Stanford, Calif.: Academic Reprints. -” First published in Italian under the title Dei delitti e delle pene. A paperback edition was published in 1963 by Bobbs-Merrill.
Berlin, Max-planck-institut Fur Auslandisches Öf-fentliches Recht Und Völkerrecht1962ver-fassungsgerichtsbarkeit in der Gegenwart: Lander-berichte und Rechtsvergleichung; Internationales Kolloquium. Beitrage zum auslandischen offentlichen Recht und Volkerrecht, No. 36. Cologne (Germany): Heymann.
Bowie, Robert R.; and Friedrich, Carl J. (editors) 1954 Studies in Federalism. Boston: Little.
Burgess, John W. (1890-1891) 1902 Political Science and Comparative Constitutional Law. 2 vols. Boston: Ginn. → Volume 1: Sovereignty and Liberty. Volume 2: Government.
Ehrlich, Ludwik 1921 Comparative Public Law and the Fundamentals of Its Study. Columbia Law Review 21:623-646.
Filangieri, Gaetano (1780-1785)1806 The Science of Legislation. 2 vols. London: Ostell. → First published as La scienza della legislazione.
Fontana, Giovanni (1938)1954 Introduzione al diritto pubblico comparato. Florence (Italy): CYA.
Friedrich, Carl J. (1937) 1950 Constitutional Government and Democracy: Theory and Practice in Europe and America. Rev. ed. Boston: Ginn. → First published as Constitutional Government and Politics: Nature and Development.
Gneist, Rudolf (1857-1860) 1871-1884 Das heutige englische Verfassungs- und Verwaltungsrecht. 3 parts, 3d ed. Berlin: Springer. → Volume 1: Das englische Verwaltungsrecht der Gegenwart in Vergleichung mit den deutschen Verwaltungssystemen, 1883-1884. 2 parts. Volume 2: Self government: Communalverfassung und Verwaltungsgerichte in England, 1871.
Goodnow, Frank J. (1893) 1903 Comparative Administrative Law: An Analysis of the Administrative Systems, National and Local, of the United States,England, France and Germany. 2 vols. New York: Putnam.
Great Britain, Commissioners On Criminal Law 1834-1845 First—o [Eighth] Report From His Majesty’s Commissioners on Criminal Law. 2 vok. London: Printed by W. Clowes and Sons for His Majesty…. → See especially the “Fourth Report.”
Gutteridge, Harold C. (1946) 1949 Comparative Law: An Introduction to the Comparative Method of Legal Study and Research. 2d ed. Cambridge Univ. Press.
Hall, Jerome 1963 Comparative Law and Social Theory. Baton Rouge: Louisiana State Univ. Press.
Kaiser, J. H. et al. 1964 Vergleichung im offentlichen Recht. Zeitschrift fiir auslandisches offentliches Recht und Volkerrecht 24:391-471.
Kulz, Helmut R.; and Naumann, Richard (editors) 1963 Staatsbiirger und Staatsgewalt: Verwaltungsrecht und Verwaltungsgerichtsbarkeit in Geschichte und Gegenwart. Vol. 1. Karlsruhe (Germany): Miiller.
Leibniz, Gottfried W. (1667) 1768 Nova methodus discendae docendaeque jurisprudentiae. Volume 4, part 3, pages 169-624 in Gottfried W. Leibniz, Opera omnia. Geneva: Fratres de Tournes.
Linares Quintana, Segundo V. 1953— Tratado de la ciencia del derecho constitucional argentino y com-parado. Vol. 1—. Buenos Aires: Alfa. → Nine volumes were published as of 1966.
Montesquieu, Charles (1748) 1962 The Spirit of the Laws. 2 vols. New York: Hafner. → First published in French.
Riesenfeld, Stefan 1938 The French System of Administrative Justice: A Model for America? Boston University Law Review 18:48-82, 400-432, 715-748.
Robertson, William (1769) 1916 The History of the Reign of Emperor Charles the Fifth. 3 vols. Philadelphia: Lippincott.
Vergleichende Darstellung des deutschen und auslandischen Strafrechts. 16 vols. 1905-1909 Berlin: Liebmann.
Vico, Giovanni Battista (1720) 1858 Dell’unico principio e dell’unico fine del diritto universale. Milan (Italy): Agnelli. → First published in Latin.
Series And Journals
Harvard University, International Program In TaxationWorld Tax Series. → Published since 1957.
International and Comparative Law Quarterly. -“Published since 1952. Supersedes the Journal of Comparative Legislation and the International Law Quarterly.
International Bureau Of Fiscal DocumentationPublications. → Published since 1951. A series of short studies on international and comparative fiscal law.
International Social Security AssociationBulletin. → Published since 1948.
Jahrbuch des offentlichen Rechts der Gegenwart New Series. → Published since 1951.
Kritische Zeitschrift fiir Rechtswissenschaft und Gesetzgebung des Auslandes. → Published between 1829 and 1856.
Revue de droit international et de legislation comparee. → Published from 1869 to 1940.
Revue du droit public et de la science politique en France et a Vetranger. → Published since 1894.
Zeitschrift fiir auslandisches offentliches Recht und Volkerrecht. → Published since 1929.
Zeitschrift fiir vergleichende Rechtswissenschaft. → Published since 1878.
Offenses. Public law comprised both the bulk of Roman “criminal” law and the rules that structured the government. The criminal offenses were few in number and many of them were “political” insofar as they were connected to the operations of the government. Two different offenses (perduellio, maiestas) are conventionally translated as “treason.” Neither, however, focuses on direct betrayal to a military enemy. They extend to usurpation of government authority, exceeding one’s own authority in public office, and, in a few extreme cases, military incompetence. Bribing voters and other forms of electoral corruption were prosecuted as ambitus. Vis, literally “force,” was prosecutable as a public offense under the Republic only when it involved seditious violence. Under the Empire, the definition of the crime was expanded to include purely private violence. Repetundae is generally described as “extortion” but was only a crime in limited circumstances. It originally covered provincial governors who took money from their subjects and was later extended to a variety of public officials who demanded or took bribes. The other public offenses were various forms of homicide, forgery of coinage or wills, theft of state property, and (under the Empire) adultery and interfering with the state grain supply.
Penalties. For most offenses the punishment was set by law, and so there was no need for a separate penalty phase of the trial. One exception was repetundae. The defendant was required to repay a multiple of the amount of money extorted, so a second hearing was held to determine the precise amount. Under the Republic there was some attempt to make punishments fit the specific offenses in kind, not just in severity. Those guilty of repetundae had to pay back money; those who committed ambitus were prohibited from holding office. Several offenses, including homicide, carried a “capital” penalty. In practice, however, the guilty party was allowed to go into exile, stripped of his citizenship, and prohibited from return on pain of actual execution. Only those guilty of the murder of a family member were actually killed; such a “parricide” was sewn into a sack with a snake, a dog, a rooster, and a monkey, then thrown into the sea as part of a ritual purification. Imperial punishments were not so closely tied to individual crimes: fines, floggings, internal exile, loss of rank, actual execution. Members of the upper classes remained exempt from corporal punishment, even as it came to be used for the bulk of the population. Criminals at all periods might be detained before trial or execution of their sentence, but imprisonment was never a punishment in its own right.
John Anthony Crook, Law and Life of Rome (Ithaca, N.Y.: Cornell University Press, 1967).
Andrew M. Riggsby, Crime and Community in Ciceronian Rome (Austin: University of Texas Press, 1999).
O. F. Robinson, The Criminal Law of Ancient Rome (Baltimore: Johns Hopkins University Press, 1995).
A general classification of law concerned with the political and sovereign capacity of a state.
Public law is that area of constitutional, administrative, criminal, and international law that focuses on the organization of the government, the relations between the state and its citizens, the responsibilities of government officials, and the relations between sister states. It is concerned with political matters, including the powers, rights, capacities, and duties of various levels of government and government officials.
Public law refers to an act that applies to the public at large, as opposed to a private law that concerns private individual rights, duties, and liabilities.
Public law is the citation given to the original form of federal and some state laws. For example, the citation for the Economic Recovery Tax Act of 1981 is Pub. L. 97–34, Aug. 13, 1981, 95 Stat. 1720 (26 U.S.C.A. § 1 et seq.).