Derecho Público y Derecho Privado

Introducción

Analysis of jurídico-roman institutions that have transcended to the 20th century.
Prospectiva to the 21st century offers richness in recreation and doctrinal discussion, based on the re-thinking of legal sustenance in light of globalized commerce.
The State's role is to defend private interests and economic direction for the benefit of its citizens.
Examine if public and private law are merely didactic or if the romanist classification should be maintained.

Antecedentes

Roman law history is classified into periods from Rome's founding to Justinian.
Crucial to understand the sources of law to determine the division between public and private law.
Periods:
- Derecho romano arcaico: 753 a. C. - 449 a. C. (Foundation of Rome to the Laws of the XII Tables)
- Derecho romano preclásico: 449 a. C. - 27 a. C. (Laws of the XII Tables to the end of the Republic)
- Derecho romano clásico: 27 a. C. - 235 d. C. (End of Republic to Alexander Severus)
- Derecho romano posclásico: 235 d. C. - 527 d. C. (Alexander Severus to Justinian)
- Derecho romano justinianeo: 527 d. C. - 565 d. C. (Justinian's reign)

Derecho Público

Definition: $Publicum\;ius\;est\;quod\;ad\;statum\;rei\;romanae\;spectat$ (That which pertains to the condition of the Roman state).
Deals with the government of the Romans.
Divided into:
1. Sacro: Cult of gods, rites, and sacrifices.
2. Sacerdotes: Organization, functions, and prerogatives of priests.
3. Magistratus: Number, nature, and attributions of magistrates; competence and setup of popular assemblies and the senate.
Deals with government, state organization, functions, and relations with individuals/other states.
Norms were not modifiable by private agreement.
Emanated from state organs, expressing the will of the Roman people.

Derecho Privado

Definition: $Privatum\;quod\;ad\;singulorum\;utilitatem\;pertinet$ (That which pertains to the utility of individuals).
Regulates relations and activities of individuals.
Governed individuals; norms could be modified by their will.
Originated from family groups to regulate relations between individuals (family or patrimonial).
Considered the primary source of Roman law.
Classified into:
- Derecho natural: Rights from divine will related to human nature.
- Derecho de gentes: Rules applicable to all non-Roman peoples.
- Derecho civil: Specific rules for each people (ius propium civium romanorum).
Ius privatum was subject to the will of individuals.
Formal source was jurisprudence; applied in tribunals, reflecting the will of individuals, guided/sanctioned by the pretor.
Family importance decreased over time.

Organización Política Romana

El Rey
- Head of the Roman government.
- Monarchy, but not absolute; sovereignty belonged to patrician families.
- Had religious, military, and judicial powers.
- Judicial role: Punishing crimes beyond family jurisdiction.
- Replaced by two magistrates after the monarchy was overthrown.
El Senado
- Assisted the king.
- Composed of older, patrician family members (paters or seniors).
- Functions: Acted for the king when absent, authorized agreements from people's assemblies.
Las Comitia
- Comitia curiata: Composed of all free citizens, divided into 30 curias.
- Decisions became law (leges curiatae) after Senate sanction.
- Comitia centuriata: Citizens divided based on army position and fortune.
- Decisions were lex centuriata, requiring Senate sanction initially.
- Comitia tributa: Grouped the rest of the population after the Republic was established.

Fuentes del Derecho Romano

Usos y Costumbres
- The sole source of law in Rome's early centuries, transmitted through generations.
- Custom acquired authority through tacit consent.
- During this era private law was based only on Usos y Costumbres.
- Magistrates could use the lack of precision of this rules when acting as arbitrators.
- Led to the creation of the Law of the Twelve Tables.
Ley de las XII Tablas
- Promulgated in 449 a. C., the first comprehensive compilation of law.
- Codified customary law and was considered the source of all public and private law.
- Considered law by excellence.
- Addressed equality between plebeians and patricians.
Plebiscitos
- Decisions made by plebeians; initially applied only to them.
- Lex Hortensia (287) made plebiscites binding on all, patricians and plebeians.
Interpretación de los pontífices y jurisconsultos
- Pontiffs initially interpreted and perfected the Law of the XII Tables.
- The Jus flavianum, published later, made legal formulas public.
- Jurisconsults' opinions were sought to solve controversies, though not obligatory, they held moral authority.
Senadoconsultos
- Orders and establishments of the senate, becoming obligatory.
- Gained power as popular assemblies met less frequently during the empire.
Constituciones imperiales
- Decisions from the emperor replaced senadoconsultos.
- Three classes:
  - Edicta: Edicts published by the emperor.
  - Decreta: Judicial decisions by the emperor.
  - Prescripta: Imperial prescriptions directed to magistrates.
Ley
- Classified as pública and privada.
- Lex privata declared by someone with disposition in a private matter, makes ius privatum.
- Lex publica declared by a magistrate and authorized by the people with the purpose of binding citizens.
Edictos del pretor
- Rules of law published by magistrates (especially pretores) when entering their functions.
- Sometimes called ius honorarium.
- Successful when pretores were eminent jurisconsults.
Edicto de Salvio Juliano
- Compiled the edicts of the urban and peregrine pretor.
- Addressed reforms.
Instituciones de Gayo
- Complete work of law from the classical era.
- Elementary treatise of Roman law.
- Divides ius civile into personas, cosas, acciones.
Corpus Iuris Civilis de Justiniano
- Aimed to classify constitutions.
- Codifications: the Código Gregoriano, the Hermogeniano, and the Teodosiano.
- Collections:
  - El Código: contained the códigos Gregoriano, Hermogeniano y Teodosiano.
  - El Digesto: Compilation of the works of 39 jurisconsults.
  - Las Instituciones: Teaching of law, based on Instituciones de Gayo.
  - Las Novelas: New constitutions published.

Derecho Público y Privado

Established in Justinian's Institutes, Ulpian stated:
- Public law concerns the condition of the Roman people.
- Private law attends to the utility of individuals.
- Public law includes cult, priests, and magistrates.
- Private law consists of natural law, law of nations, and civil law.
Separation not contradictory but a set of norms; the State protects private interests as a public concern and individuals comply because of their own interest.
The supreme law was the well-being of the people: $Salus\;populi\;suprema\;lex\;esto$ .
Private agreements cannot override public law: $Privatorum\;conventio\;iuri\;publico\;non\;derogat$ .
Public benefit prioritized over individual benefit: $Ea\;quae\;communiter\;omnibus\;prosunt,\;iis\;quae\;specialiter\;quibusdam\;utilia\;sunt,\;praeponimus$ .
All law is established for the sake of persons: $Omne\;ius\;personarum\;causa\;constitutum\;est$ .

Fuentes del Derecho en la Actualidad

Sources: Origin of legal norms and basis of validity.
Traditional doctrine classifies sources into:
- Formales: Processes of legal manifestation.
  - Directas: Produce legal norms (law, custom, international treaties).
  - Indirectas: Aid in elaboration (jurisprudence, general principles of law, doctrine).
- Reales: Normative contents integrated in legal norms (values, moral principles).
- Históricas: Documents of non-current positive law.

Legislación
- Direct output of the legislative process by a competent state entity.
- Abstract, general, obligatory, and coercible.
Principios generales del derecho
- Principles of justice revealed by reason, embodying a universal legal truth.
Costumbre
- Customary process creating law (inveterata consuetudo et opinio juris).
- Needs long-standing conduct and recognition of obligatory character by public power.
Jurisprudencia
- Principles in judicial sentences.
- Generates legal norms and helps in formation/application.
- Applied when law is obscure, in concrete situations.
Doctrina
- Scientific studies by jurists with the purpose of systematizing laws, norms and rules.
- Serves to fix the meaning of legal dispositions.

Reflections:
- Custom requires state power for obligatory status.
- Law creation involves a legislative process, magistrates elaborated the law to be approved by the people.
- Jurisprudence interprets law.
- Roman sources no longer considered sources of current law.
- Corpus Iuris Civilis de Justiniano, important source for written law.

Derecho Público y Privado en la Actualidad

Law regulates and harmonizes relations in society/state.
Western nations view division into public and private law as prevalent.
Determining criteria for distinction is a problem in legal science/philosophy.
Theories:
1. Accept division of law:
  - Theory of interest in play (Savigny): focus on the individuals.
  - Theory of distributive and adaptative norms: right to service.
  - Theory based on the nature of legal relations between State and Individuals: coordination vs sub and supra-ordination.
2. Suggest a third branch: mixed law.
3. Deny division of law:
  - German theory: Law is unique.
  - English theory: Resists norms of administrative law distinct from common law.
  - Duguit: Public and private acts have the same elements.
  - Kelsen: Division relative since every legal norm protecting an individual also constitues public interest.
The division in Roman law was of diverse components of a whole, as shown by Ulpian in the Digest.
All norms regulated by state power would be ius publicum.
Distinction only represents a historic value, traditional and needed for didactic reasons. Has a national and international focus.
Needs to disappear the traditional division, and the different regulations need to be mandatory.