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Public Law vs Private Law

Legal terms may appear complicated to common individuals, which is why confusion usually
occurs during legal procedures. To have a deeper understanding of the basics regarding legal
procedures, let us take a look at the difference between two terms: Private law and public law.
When is law considered public or private?

Public law is a theory of law that governs the relationship between the state and the individual,
who is considered to be either a company or a citizen. Public law covers three sub-divisions:
Constitutional, administrative and criminal law.

- Constitutional law covers the different branches of the state: Executive, legislative and
judiciary.

- Administrative law regulates international trade, manufacturing, pollution, taxation, and the like.

- Criminal law involves state imposed sanctions for individuals or companies in order to achieve
justice and social order.

Private law is also known as civil law. It involves relationships between individuals, or private
relationships between citizens and companies. It covers the law of obligations and the law of
torts, which is defined as follows: Firstly, the Law of Obligation (Droit des Obligations) organizes
and regulates legal relations between individuals under contract. Secondly, the Law of Torts
addresses and remedies issues for civil wrongs, not arising from any contractual obligation.

Public law is simply distinguished from private law as a law involving the state. Private law is a
private bill enacted into law. It targets individuals or corporations, unlike public law, which has a
broader scope, and affects the general public.

Summary:

1. Public law governs the individual, citizen or corporation, and the state, while private law
applies to individuals.

2. Public law deals with a greater scope, while private law deals with a more specific scope.

3. Public law deals more with issues that affect the general public or the state itself, whereas,
private law focuses more on issues affecting private individuals, or corporations.

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Mauritian Case Law

Société de L’Abri v The Honourable Minister of Agriculture & Natural Resources [1997 SCJ 201]

This case referred to the Supreme Court Practice 1993 Edition Ord. 53.14, viz:-

“53/1-14/14 Distinction between public and private law –

Where a person seeks to establish that a decision of a person or body infringes rights which are
entitled to protection under public law he must, as a general rule, proceed by way of judicial
review and not by way of an ordinary action whether for a declaration or an injunction or
otherwise (O’Reilly v Mackman [1983] 2 AC 237) [1982] 3 All ER 1124, H.L.). If a person
commences an ordinary action where he should have applied for judicial review, the action will
be struck out by summary process (ibid).”

France Vallet v The Mauritius Housing Corporation [1970 SCJ 91]

In the present case, the Corporation could escape liability for the cashier’s acts only by showing
that the latter had not committed a “faute de service”, but a “faute personnelel” altogether
outside the scope of his employment. Indeed, even personal faults of the servant may involve
the responsibility of the Corporation:

231- La Possibilité du cumul – On a longtemps cru que la faute personnelle du fonctionnaire


étant d♪0tachable de la function, excluait la faute service, donc la responsabilitéde la personne
publique. C’était méconnaitre la possibilté de commettre une faute personnelle dans le service,
alors que, souvent, elle traduit la gravité meme de la defaillance de ce service. Il serait
choquant que l’Etat cessat d’être responsable, à raison des fautes les plus graves de ses
services, sous le simple prétexte qu’elles engagent la responsabilité personnelle du
fonctionnaire. A supposer celui-ci insolvable, la victim des fautes les plus Lourdes se trouverait
la moins indemnisée. [Savatier, op-cit,1,231]

Emtel v ICTA [2011 SCJ 270]

It was submitted on behalf of the plaintiff company that in the circumstances where the duty can
only be owed by the State and not by a private citizen, there arises a “public law tort” as
opposed to a “private law tort” which is actionable by citizens inter se. On the assumption that
the claim of the plaintiff company is based on a “public law tort”, then the claim would be
directed against the State for its own ‘faute’ and not for that of its employees or agents. Section
2 (1) which provides that the State shall be subject to all those liabilities in tort to which, if it were
a private person of full age and capacity it would be subject in respect of torts committed by its
employee or agents, will therefore not apply. Neither will section 4 of the Public Officers’
Protection Act which covers civil or criminal actions for any fact, act or omission against a public
officer in the execution of his duty, apply.

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