Public Law before ‘Public Law’

The chapter analyses the historical significance of the distinction between public and private law. Despite the precise and remote Roman origins, it was only at the beginning of the nineteenth century that such distinction became a crucial dichotomy in continental Europe, thanks to Kant’s and Savigny’s theoretical premises. Until then, public law had been following very different paths. In France, in the sixteenth century, public law ran parallel to the evolution of the national state; in Germany, the parallelism was with the Holy Roman Empire, despite its progressive decline. In Italy, the term ‘public law’ emerged only at the end of the eighteenth century, almost at the same time of the rift caused by the French Revolution. In England, the development of individual rights between the sixteenth and seventeenth centuries gave way to modern constitutionalism, but at the same time made common law intrinsically immune to the private–public law dichotomy.