The Distinction Between Private and Public Law in Relation to Their Genesis

Abstract

Listen

Translate article

The article states the unresolved problem in science of distinction of public and private. For the first time it is proposed to distinct between private and public law on the basis of their social functions at the stage of formation of legal relations in society, from the perspective of the genesis of law. We believe that the reconstruction of the social processes that have led to the formation of the law as a universal regulator of social relations can be performed by means of a retrospective interpretation of customary law norms. Upon that, we proceed from the assumption that specific historical forms of customary law may reflect the forms of the transition of society from the usurping economy to the producing economy. This process is the starting point for the formation of both private law and the establishment of power relations based on subordination, as opposed to the gender and age hierarchy of clan system. Consideration of these processes leads to conclusions about customary law as a universal source of private law. The law as an expression of the will of the state forms public law. The competition between these two sources of law creates particular features of the national legal system and reflects the relationship between the State and civil society. The genesis of legal institutions is connected with the legal awareness of the people and is expressed in social relations at more distant stages of development. An example of this is the historical facts of the past, which are well known to science. The history of annexation to Russia of Eastern Siberia and its predominantly Buryat clans is well known and described in a number of historical scientific publications. Therefore, the interpretation of well-known legal norms and legal documents of this period allows to reveal actual existing in historical times of the limits of legal regulation in private and public law. This leads to the conclusion that most civilizations have historically developed their optimal balance between state and society.