Public law as the law of the res publica.

• Author: Zoller, Elisabeth
• Position: Suffolk Transnational Law Review's 2008 Distinguished Speaker Colloquium series lecture

In 1989, on the occasion of the Bicentennial of the French Revolution, I gave a talk at Suffolk University Law School on The Distinction Between Man and the Citizen in the Declaration of the Rights of Man and the Citizen of 1789. (1) In retrospect, I am afraid that this may not have been one of my best talks. The truth of the matter is that I failed to give the rationale for this crucial distinction and its meaning in the Declaration of 1789. I said that the distinction was almost invisible in this country and much less important than in the French legal system, but I did not explain why.

Today, thanks to the research I did to write my most recent book, Introduction to Public Law: A Comparative Study, (2) I am in a better position to indicate why the distinction between Man and the Citizen really matters in French law. The reason lies in the distinction between public law and private law that structures the French legal system.

What does that mean when it comes to rights? It means that rights have to be exercised in the context of common values shared by all citizens, that is, res publica. The stronger the res publica is, the less absolute rights exist. The res publica in a polity means that rights are not absolute, that they must be exercised responsibly and may not be abused. In other words, res publica implies that rights are not exercised in a state of nature, but rather in a political association, which we usually call the State, or a Republic, that is, the community of the permanent interests of the people.

In saying this, I do not mean that the distinction between public law and private law is not made in the United States. But it is not as entrenched as it is in France, and it does not have the same meaning. First, there are, in the U.S., no public law courts separate from the judiciary in charge of adjudicating public law cases, such as France's Conseil d'Etat, the supreme court of the administrative courts. Second, the content of public law in this country is not the same as in France. When American lawyers refer to "public law values," they refer to individual values, such as due process of law, fairness, legality, the rule of law, and rationality. In contrast, French public law calls for public-oriented values, such as missions of public service, burdens of general interest or duties of solidarity.

I have always been puzzled by this difference, all the more so because the two countries share a common destiny in the ideal of the republican form of government both embrace. To make a long story short, I decided to investigate the origins and evolution of public law, and eventually wrote Introduction to Public Law to understand why and how public law followed such different paths in both countries.

My methodology was historical and comparative. I went back to the origins, Roman law, because Rome is the birthplace of the distinction between private and public law through the concept of res publica, and I tried to understand what happened to that distinction after the collapse of the Roman Empire. I started, first, in Europe with the Monarchical Age, which is crucial in the history of public law because, during this period, concepts such as sovereignty and the State gave a new twist to the distinction between private and public law. I then turned to the fate of that distinction in the Republican Age, after the revolutions of the eighteenth century that took place in this country and in France. During this presentation, I intend to take you on the same journey by going back to the legacy of Roman law and the meaning of the res publica, and then, the fate of that res publica, first, in the Monarchical Age, and, second, in the Republican Age.

THE LEGACY OF ROMAN LAW

Public law, in the sense first defined by the Romans, is the law of res publica, literally the public thing, that is, the public interest or common good, predicated on the differentiation between the State and the government.

Res publica was created by the Romans to solve problems arising out of Rome's domination of the Mediterranean Basin. Rome's urban institutions were modeled after those of the ancient cities with a senate and an assembly of citizens that elected the magistrates. With the legion's conquest, these institutions became inadequate; 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 goals, the affairs, institutions that are the thing of the peoples, 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.

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 evolved into the...