2. Classification of Law and Legal Rules
Section 1
Public and Private Laws
Classification of law in the Common Law countries (or the Anglo-Saxon
countries such as the United Kingdom and the United States of America)
includes two kinds of rules:
1-Rules of common law: which are basically the rules of English law in its
primitive sources, which go back to several centuries ago, and
2-Rules of Equity which came at first as exception from the common law
justified by rules of justice, but later became a distinct source of provisions
in the English law.
Classification of law in France and many other European countries does not
stem from historical approaches as the English law, but follows a
substantive method in classifying the legal rules. The Egyptian law follows
this second legal system.
• According to the Franco-Egyptian system, law is divided into two main
categories:
- Public law; and
- Private law
3. Each category is divided into some branches of law:
• Public law is the law, which governs the relationships
between states and international public institutions or
among the public authorities of a given state, or among
such authorities with individuals where the authorities
appear as sovereign persons, i.e. as entities enjoying
extraordinary powers to enable them fulfill their duties.
• Private law is the law, which governs the relationships
among individuals, or among individuals and public bodies
where such bodies appear as ordinary persons or entities,
i.e. transacting in the same manners used by individual,
such as: selling, buying or renting.
• The difference between public and private law is related to
the position of state entities. If they appear as sovereign
entities then the relationship is governed by public law; but
if they appear as ordinary persons, the relationship comes
under the private law provisions.
4. Some of the indecisive criteria to
distinguish between public and private law
1-The compulsory nature of public law rules and
the supplementary nature of private law rules:
Such criteria may apply in most cases, but is
not decisive because of many derogations
therefrom.
2-The purpose of the law: public law is intended
to fulfill the public welfare while private law
intends to fulfill welfare of individuals. This
criticism cannot be upheld because all legal
rules intend a mixture of public and private
welfare on the same footing .
5. Demarcation between public and private law:
The difference between public and private law has already been
explained. It is necessary, however, to point out in the interests of
accuracy that the line of demarcation between public and private
law is by no means a precise one, since there are many disputes,
which may arise between citizens and a public authority which
really involve questions of private rather than public law.
For example, a nationalized industry, such as gas industry, may
engage in ordinary commercial transactions. It may supply gas
stoves or other gas equipment to individual customers, and these
may be on the ordinary basis of sale, or possibly hire purchase.
Such transactions will be subject to the ordinary private law of
contract, and any dispute arising out of these transactions will be
dealt with by the ordinary courts.
Indeed, even in civil law countries, which have a system of
administrative courts, it is generally accepted that commercial
transactions by public authorities are governed by the ordinary
private law, and are not subject to the administrative court
procedure.
6. On the contrary, there will be many instances where an
overlap between one or more divisions, depending on the
particular circumstances or the structure or the particular
legal system. To give another example, in civil law systems it
is commonly accepted that a court concerned with a
criminal trial may at the same time deal with any civil
disputes, which arise, either by granting complete damages
or compensation, or by awarding temporary nominal
damages or compensation setting up the principle of
deserving such damages or compensation and leaving the
complete quantum to the civil court in further proceeding.
• Under English law, where a person is prosecuted for
dangerous driving, the criminal court has no power to
award damages for any injuries suffered. This is because, in
English law, a claim for damages is regarded as an entirely
separate civil proceeding, and must be made the subject of
proceedings in a civil court.
7. Now, we will discuss the branches of public and private
laws:
Public law is divided into 5 branches:
• Constitutional law;
• Administrative law;
• Criminal law (including penal procedural);
• Public finance and tax law; and
• Public international law.
The branches of private law are as follows:
• Civil law;
• Commercial law;
• The law of civil and commercial procedure, and
• Private international law.
8. 1- Branches of Public Law
I. Constitutional law:
The constitutional law is the law of laws, that is to say: it is the main law in
every state. It may be defined as the law which prescribes the following
subjects:
• The kind of the regime: is it a kingdom or a republic state?
• The kind of government: is it a presidential or a parliamentary
government?
• The boundaries of the territory of the state, which is usually defined
through bilateral treaties with neighboring countries.
• The public authorities and the relationships between them. Normally there
are three authorities; the executive authority, which is composed of the
cabinet, the relating ministries and other central or local administrative
bodies; the legislative authority, which enacts laws and supervises the
political economic and social performance of the executive authority; and
the judicial authority which rules upon disputes
• The public liberties, duties and rights of individuals. Public liberties are, for
instance, the liberty of opinion, the liberty of press, the liberty of
assembling the right of election legislative and local elections and the right
to be eligible to the Parliament or other political bodies, the right to form
political parties, and the right to have private safe life, etc.
9. 6- The broad lines of the general policy of the state per se and in reard to
international commitments, the policy of education of public health and
the like.
• Constitutional law also provides for the protection of the right of
ownership, intellectual rights, and the principles of public election
processes as well as the flag of the state.
• All Other law in the state are bound to conform to the constitution of the
state in the form as well as in their substance; this is the principle Known
as the constitutionality of laws and regulations. In cases of non conformity,
the complaining party may ask the competent court to give him
permission to file an appeal against the said law before the supreme
constitutional court to render a judgment to the effect the said law is
contrary to the constitution, either in the form or in the substance. Such
judgment means that the non-conforming law will cease to be applicable
as of the following day after the publication of the said judgment in the
legislative authority to review the said law to make the necessary changes
or to cancel it.
• The constitution may have firm or supple existence. If the constitution
cannot be amended at all it is rigid and has firm existence; but if it can be
amended by ordinary procedure of amending laws then it is considered
supple or flexible.
10. • The constitution may be granted as a gift from a
king to his people , or may be achieved by
resistance against authorities as the case with the
French Revolution in 1789. The constitution may
be drafted by the parliament, by a nominated
committee or by members of a committee elected
in public elections. Once the constitution is
drafted, it may be offered in a public referendum
for the approval of the people.
• The Egyptian constitution is written, but this does
not prevent customary rules from developing in
practice. Such rules have the same force of
constitutional rules.
