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ceeding 100 statutory minimum wages, which might cover the costs of the measures that cannot be postponed.
5. Thelastpointthatrequiresattentionhereisthepositionofthecredi- tors of the deceased after the opening of the succession.13
It is a typical feature of the 1964 Civil Code that it is (more or less) blind tointerestsofcreditors.Inthisfield,thetwopartsofthenewCivilCodein force now, the new Russian Law “On Bankruptcy”, and the new legislation concerning enforcement proceedings have brought much improvement to the Russian legislative landscape. But the law of inheritance, including the draft of 1997, still turns a blind eye to this issue.
Article 553 of the 1964 Code (Art.434, 1922 Code) provides the only rule on the position of the creditors of the deceased. It states that a successor who has accepted the estate is liable for the debts of the deceased to the extent of the actual value of the estate passing to him under the succession. Fundamentally, this rule is maintained in the 1997 draft. Some provisions are added—for instance, co-heirs are jointly and severally liable—but each of these potential debtors is liable only to the extent of the value of her (his) portion, and what is to be done in the period before the inheritance has been accepted. But the two most important questions are not dealt with at all.
In the first place, one can think of the following question: is the value of the inheritance determined only by its assets or also by the debts? Sec- ond, there is the question of the position of the creditors of the deceased in relation to the creditors of the heir where both groups of creditors have recourse to the goods of the inheritance that have become the property of this heir.
In Western countries, the usual rule is that an heir who has accepted the inheritance is fully liable for the debts of the deceased. But an heir has the possibility to accept conditionally in this sense that he is only liable to the extent of the goods of the inheritance obtained by him: the acceptance sousbénéficed’inventaire, a well-known institution of Roman law. In practice, this means that a liquidation procedure has been started, the creditors of the deceased are satisfied out of the goods that are sold as far as needed for this purpose, and the heir obtains what is left over after satisfaction of these creditors. This procedure is, of course, meant as a protection of the
13I limit myself to the position of the creditors of the deceased: creditors that already had a claim against the deceased at the moment of her (his) death. But an inheritance might have other groups of creditors: creditors with a claim concerning expenses for the administration and protection of the inheritance after this moment, creditors in respect of the costs of the funeral, or creditors with a claim imposed upon the heirs by thedeceasedinitswill.Thosegroupsmighthavedifferentrights.But,inthetext,this will be ignored in order make clear the main line of the system.
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heir, just as the Russian rule limiting the liability of the heir to the value of her/his portion.
But there is an important difference.TheWestern rule is focused on the goods of the inheritance as an object for creditors upon which to take recourse. In case of a bénéfice d’inventaire, the creditors of the deceased can have recourse only to the goods of the inheritance and not to the goods of theheir(s),thisrecoursebeingeffectuatedintheframeworkofaliquidation procedure where the creditors of the deceased are entitled to submit their claims for satisfaction, while the creditors of the heir(s) are only entitled to exercise their rights with regard to the final balance. But the Russian rule refers only to the value of the inheritance as a limitation of the liability of the heir(s) for the claims of those creditors. This limitation seems to pose no obstacle for those creditors to take recourse to any of the goods of an heir, regardless of the way those goods became her/his property: out of the inheritance or otherwise. The only possible defense of the heir here seems to be that—by this recourse—the claims of the creditors of the deceased taken together can exceed the value of the inheritance (or the value of the part thereof to which the heir is entitled).
Thisdifferencemayhaveimportantconsequencesforthecreditorsof the deceased as well as for the creditors of the heir.
Aliquidationprocedure,Western-style,gives,infact,protectiontothe creditors of the deceased against the possibility that they have to share the proceeds of the goods of the inheritance with the creditors of the heir; this is especially important where the heir has more debts than goods (assets). In this sense, the former group of creditors has, in fact, a kind of factual preference for its claims to the goods (assets) of the inheritance above the claims of the creditors of the heir, who can only have recourse to what is left over after the liquidation. For that reason, they usually have the right to request such a liquidation procedure even where the heir(s) has (have) accepted the inheritance unconditionally. Again, this right has its origin in Roman law.
Asimpleexamplemayillustratethepracticalconsequencesofthisand show the contrast with the Russian approach. Let us suppose that the value of the goods of the inheritance is 100,000, that the deceased had two debts of 45,000 each, that there is one heir who has assets only up to a value of 10,000 and debts up to 60,000.
A liquidation procedure, Western-style, leads to the following result.
The two creditors of the deceased are fully paid out of the assets of the inheritance. The heir receives 10,000, which may be divided among her (his) creditors together with her (his) own 10,000. They will get in this way only one-third, or 33%, of their claims.
TheRussiansystem,thoughdifferentinterpretationsarepossible,seems inanyeventtoleadtoquiteadifferentoutcome.Inthissystem,fundamen-
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tally, the creditors of the deceased and the creditors of the heir may have recourse to all the goods of the inheritance, as well as to the assets of the heir. This means that, in case of dividing the proceeds obtained by selling all these goods, each of those creditors gets 11/15 (approximately 73%) of her (his) claim,14 which comes to 33,000 for each of the creditors of the deceased and to 44,000 for the joint creditors of the heir. But according to the limit ofArticle 553 of the 1964 Code, the creditors of the deceased cannot receive morethanthevalueoftheinheritance.Hereweseetherelevanceofthefirst ofthetwoopenquestionsImentionedabove.Ifthisvalueisdeemedtobe the value of the assets of the inheritance, the creditors of the deceased in our example do not exceed this limit, this value being 100,000. But if this value is deemed to be the value of these assets after deduction of the debts, the limit is easily reached: it is 10,000. The result would be that the creditors of the deceased get 5,000 each and that the creditors of the heir are fully paid. This last result seems very unreasonable, but most in accordance with the wording of the 1964 Code, as well as with the 1997 draft.
Itseemstomethatwhatismostlyneededhereisclarification.Perhaps Russian practice has never been fully aware of the consequences hidden in
Article 553 of the 1964 Code. In the new situation, where the law of inheritance as well as the protection of creditors have become far more important issues than in the past, clear choices must be made. For the creditors of the deceased, it is essential to have an instrument to enforce a liquidation of the inheritance, ensuring payment out of its assets. This must be seen as somethingdifferentfromtheprotectionofheirsagainstthosecreditorsin case of an insolvent estate. But in spite of this, the simplest solution for this protection seems to be to follow the same system that makes it possible to make one set of rules for both liquidation grounds.
This has the additional advantage that the heir, once the liquidation is completed, no longer has to worry about possible creditors of her (his) predecessor. To link her (his) protection to the value of the inheritance seems a rather ambiguous concept. This is true not only for the reasons explainedherebutalsobecauseofthedifficultytocometoasatisfyingway of estimating the value of assets that are not sold at all or have been sold at another moment than immediately after the succession.
6. This marks the end of my remarks. The law of inheritance is a part of civil law that is very much linked to the specific culture and tradition of a country.This makes every comparison between national systems somewhat speculative. Nevertheless, such comparisons may lead to a better understanding of national law, including technical points, and may in this way contribute to the creation of satisfying legislation in Russia as well as inThe Netherlands.
14The sum of the assets being 110,000 and the sum of the claims of all the creditors involved being 150,000.
Private Law and Public Law
F.J.M. Feldbrugge
Emeritus Professor of East European Law
University of Leiden, Faculty of Law
We talk about private law and public law as if everybody knew what was meant when these words are being used about law. This probably holds true for lawyers and even law students, but not for the general population. Most people will have some sort of idea about labor law, or bankruptcy law, but the distinction between private law and public law, considered as most fundamental by most lawyers, means next to nothing to the man or woman in the street.
Is the problem perhaps avoidable, do we actually need the public/ private law distinction? If we do not, the matter could be left to those inclined to such intellectual pastimes.
Unfortunately, the distinction between public and private law entails practical consequences, at least in continental legal systems, so it can- not be referred to the convenient and already very large file of problems that do not need a solution. To start at the simplest and most practical level: our law happens to be divided into two boxes; some of it has been put into the box marked “public law”, and the rest into the box marked “private law”, and the contents of these two boxes are treated somewhat differently. For the law student and the humble practitioner this may be enough to know. But the more discerning lawyer would of course like to know why some law goes into one box and some into the other.
Two thousand years of jurisprudence—because the distinction goes backatleastasfarastheRomans—haveproducedavastbodyofliterature containing answers to this question.The earliest solution was offered by the Roman jurist Ulpian who stated: “Public law is what regards the welfare of the Roman state, private law what regards the interests of individual persons; because some things are of public, others of private utility.”1
Although the distinction was never quite forgotten in the following centuries—Grotius referred to it—the legal regimes of medieval Europe certainly tended towards blurring it. It was only when the modern state, as we know it, began to take shape in the nineteenth century that the debate about private against public in law was revived. This, incidentally, is an indication of where the nucleus of the problem lies.
1D. I.1.2. Publicum ius est, quod ad statum rei romanae spectat, privatum quod ad singulorum utilitatem; sunt enim quaedam publice utilia, quaedam privatim. The passage was included intheintroductorychapterofJustinian’sInstitutions,whichmayexplainwhyitwas so well known.
William B. Simons, ed.
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Rudolf von Jhering, perhaps the greatest legal mind of the nineteenth century, had argued the central importance of the concept of interests in jurisprudence, and from that point on, remembering Ulpian’s position, additional answers could be formulated.2
Looking at the subjects of the interests, it has generally been observed that in public law at least one of the interested parties would be public authority in one form or another. Private law, on the other hand, concerned the legal relationships between private parties. (Of course public authority may also appear as a private party, e.g., when it participates on the same footing as an individual citizen in a consumer contract.)
The presence of public authority (in one form or another) in public lawrelationshipsentailsseveralotherconsequences.Oneistheinequality inherent in such relationships. Not only is the public party usually more powerful de facto, it is also either the creator of legal norms, or closely involved in the creation and enforcement of these norms. Dealing with a public party is therefore like playing chess against a player who may change the rules of the game. For this reason, the public party must be bound to stricter rules than his private counterpart. The exercise of a right or power granted by public law is generally considered to be limited by the purpose for which the right or power was granted. A private party may not abuse its rights, but is otherwise not questioned about the purpose for which it uses its right. A public party, even where it has been granted discretionary powers, may not exercise these powers as it sees fit, but should exercise discretion in order to optimally realize the objective for which the powers were granted.
The private/public dichotomy is closely related to, but not identical with another distinction: between so-called dispositive and mandatory law.
All public law is mandatory, in the sense that free discretionary use—or non-use—of public powers cannot be allowed. The bulk of private law may be compared to a vast warehouse of legal instruments for the use of private citizens; they are free, however, to manufacture their own tools.
Only in specific types of cases, usually in order to protect weak parties, public power intervenes and orders the citizen to use the tools from the warehouse.
The enforcement, in other words the procedural aspects, of private and public law may also differ in accordance with the inequalities out- lined before. As a rule, the enforcement of private law depends on the interested private parties; they decide freely whether and how they want to enforce their rights. The public party in a public law relationship is normally obliged to enforce its right. Additionally, in many jurisdictions,
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R. von Jhering, Der Zweck im Recht, Vol.1, Leipzig 1877, Vol.2, Leipzig 1883. |
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special procedures and special administrative courts are available for the handling of public law disputes.
This has until now been a summary survey of the principal points where private and public law are supposed to be different. All of these points are open to criticism and indeed to such an extent that many scholars have concluded that, in the end, the distinction between private and public law is intellectually untenable. This is correct in the sense that no criterioncanbefoundwhichwilldefinitivelyandpermanentlyallowusto distinguish between the two. On the other hand, the distinction refuses to go away, even if it is intellectually unsound. The reason for this is, I believe, that, although there are no watertight compartments in which logic compels us to place private and public law, the prominent presence of public authority as a participant in many areas of legal intercourse produces a sphere around itself which one can designate as public law. The stronger such presence, the more the legal relationships involved assume a public law character. This of course means that, as I see it, there is a gradual transition, a continuum, between private and public law. Some legal transactions, e.g., the sale of second-hand furniture between private persons, are completely in the private sphere, while others, such as the adoption of the annual budget of the state in parliament, are completely in the public sphere. In many cases, however, private and public elements co-exist. This occurs not only when public authority, in one form or another, itself participates directly in a legal relationship, but also when public authority declares an interest and intervenes in a legal relationship between private persons. Such intervention may be effected in a general, abstract, way, by means of legislation, for instance when the legislator restricts individual freedom in labor or family law, or specifically, in an individual transaction between private persons, for instance when some kind of official permission or approval is required.
The reason for the existence and indeed the persistence, the ineradicability, of the private-public dichotomy in law is therefore the need to address the fundamental inequality which arises when public authority starts to participate as an actor on the legal stage.The many forms in which publicauthoritymayappearasalegalactorrequireavarietyofdevicesto dealwiththisinequality.InAmericanlaw,thedoctrineofstateactionhas been formulated on the basis of the text of the Fourteenth Amendment;3 in European countries, including the United Kingdom, the public/private lawdivisionhasbeenoneoftheanswers,buteverynationalsystemoffers its own version of this division. Moreover, the private-public dichotomy is
3An extensive overview of the American approach to the problem may be found in a special number of the 130 University of Pennsylvania Law Review 1982 No.6, 12891580.
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not the only device for dealing with the special position of public authority. Doctrines, such as those on human rights, or on general principles of public administration, serve closely related functions. It may be obvious, furthermore, that the private-public dichotomy in law is also intimately connected with basic questions of the philosophy of law and of the state, especially with the ideas of natural law and legal positivism.We shall return to this aspect briefly at the end of this chapter, after having had a look at the problem from the perspective of legal history.
Perhaps the most important insight gained by the considerations presented above is that we have made two boxes (to use this image once more) and stuck the labels “private law” and “public law” on them and havethenproceededtostoreallthedifferentbitsoflawineitherofthem. Wetreatthecontentsoftheseboxessomewhatdifferentlyandbeforewe put away a bit of law in one box or the other we have to decide therefore which treatment we consider most appropriate. The general underlying idea is that legal relationships in which the state or any other emanation ofpublicauthorityplaysaroleofsomesignificanceshould,inmanycases, receive special treatment, because, again in many cases, the public partner in a relationship is too dissimilar from a private partner.
The second point to be made concerning the private/public law dichotomy from the perspective of legal history is the following. The dichotomy will only arise when the need is felt to distinguish between private and public law. Once the distinction is recognized one can, of course, apply it retroactively, in other words, identify certain elements of earlier legal systems as belonging to private, resp. public law, although these systems themselves did not make the distinction and had no reason to make it. This means that for the legal historian there are actually two questions to answer: When did lawyers and the law itself begin to make an explicit distinction between private and public law?, and: At which moment in history do we observe the emergence of legal rules which can be characterized as private, resp. public law? Moreover, these questions require separate answers for each legal system.
The first question is easy to answer, in a way. Not because it is easy, but because there is very little to go on. We know that Roman law knew the distinction already in the times of Ulpian and from that time on it has belonged to the acquis of European legal history. For other legal systems, as far as I am aware, lack of sources prevents us from coming up with answers.
The second question is far more interesting.4
4The following discussion is based on the findings of a seminar on the early legal history of a great variety of cultures; see F. Feldbrugge, (ed.), The Law’s Beginnings, Leiden 2003, especially my own paper on the Russkaia Pravda (“The Earliest Law of Russia and its Sources”) and my “Concluding Observations”.
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A discussion of early legal systems often contains little more than the observation that such systems were rather primitive, and among the reasons for such a judgment one mentions the failure to distinguish between civil and criminal, and between private and public law.
It may be worthwhile therefore to investigate whether private law and public law, applying these concepts anachronistically, emerged at the same time in a particular legal system.
First of all, it would appear that the most fruitful approach would be to look at the emergence of law and of the state in the distant past by reference to present-day understandings of these concepts.We should examine how particular elements, which we consider to be important constituents of our legal system or of our state, were gradually formed or emerged. Both law and the state are then viewed as entities that took shape over time. It does not help our understanding very much if we employ some kind of timeless definition of law, or of the state, and then establish that at a given moment in a certain place law appeared or a state was born.
The second important insight is that this emergence of law and the state consists of two parallel processes, closely connected but nevertheless not fused from the very beginning. It has been demonstrated that reasonably sophisticated legal systems have existed in societies which lackedcentralauthorityofsufficientconsistencyandpermanencetospeak of the existence of a state. The Cheyenne Indians of the early nineteenth century, famously described by Llewellyn and Hoebel, are one example;5 another one may be found in early Celtic Ireland, an essentially tribal civilization which was bound together by a common culture, religion, literature and legal system, but where any kind of central political authority was completely absent.6
Conversely,historyandanthropologyalsoshowuswell-definedstates which functioned without articulate legal systems.7
The first step in the emergence of law is when dispute settlement is referred to a third party, somebody who is not a party in the dispute and whoseviewstendtobeacceptedbytheconflictingparties.Atsomestage this most archaic institution becomes more elaborate: certain persons (e.g., tribal elders) may emerge as regular arbitrators; dispute settlement may be based (in part) on previous decisions; dispute settlement may become more and more professionalized.
5K.N. Llewellyn and A. Hoebel, TheCheyenneWay:ConflictandCaseLawinPrimitive
Jurisprudence, Norman, OK 1941.
6See D. Edel, “An Emerging Legal System in an Embryonic State: The Case of Early Medieval Ireland”, in Feldbrugge, The Law’s Beginnings, op.cit. note 4.
7See H. Claessen, “Aspects of Law and Order in Early State Societies”, in Feldbrugge,
The Law’s Beginnings, op.cit. note 4.
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In the final stage of development of early law, the dispute settling agencies reach out beyond the individual case before them and claim the validity of their decision for all future similar cases. The next step then is to discard the individual case altogether and issue an abstract decision for a particular legal dispute—the birth of legislation. Obviously, the emer- gence of true legislation implies the existence of the state. One could say, therefore, that the development of early law will, at a certain moment, produce the state; but at the same time, looking at it from the other end, the development of the early state will, at a certain moment, produce law, both in the form of legislation and through the monopolization of dispute settlement and enforcement.
Returning now to the public/private dichotomy in law, the question ariseswhenitfirstbecameobservableinlegalhistory.Intheviewoutlined above, one would expect this to occur at some moment after the emergence of an articulate state structure, possessing already a system of legislation. It is even possible to narrow down this moment more precisely. The reason behind the dichotomy, as we have argued, is the need to restore the balanceinanotherwiseunequalrelationshipbetweenprivatepersonsand public authority in legal intercourse. Such a correction in favor of private persons will only take place when the state is confronted by countervailing powers of sufficient strength; it would be unrealistic to expect the early state to engage in self-limitation without any external prompting.
As a rule, an early state operates in a state of comparative weakness; it is still consolidating its position, its powers are not yet fully recognized. In such a situation one can expect other social actors to impose condi- tions and limitations concerning the state’s monopoly of rule creation and enforcement. This need not lead inevitably to the emergence of a private-public dichotomy in law, but such a thing would be a fairly obvious device to select.
The distinction between private and public law was explicitly recognized by the Romans, but that does not mean of course that it did not existbeforehand.Bythis,Imeanthatthereweredifferentsetsofrulesin operation, some applying to private persons and others to public agents.
This difference can indeed be observed at a very early stage, as could be expected in the perspective adopted in this chapter. In Roman law, the most archaic period is abundantly overgrown and obscured by more sophisticated later developments; in the laws of Celtic tribes, what is known of them, the absence of a central authority makes the search for institutions which could be designated as “public law” unpromising. Early Germanic andSlaviclaws,ontheotherhand,yieldsufficientappropriateillustrations of an incipient dichotomy. We shall present here some examples from the
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earliest Russian law, the Russkaia Pravda (RP). The considerable mass of Germanic tribal laws, both the continental ones written in a corrupted Latin and the Anglo-Saxon ones (written in Anglo-Saxon), represent a great variety of stages of legal development, from the fairly primitive to the quite sophisticated. The complex of texts which form the Russkaia Pravda, on the other hand, consists of a chronological succession of additions, amendments, revisions of an original document, which allow us to follow the development of early law and legislation in considerable detail. In this chapter, only the principal points can be briefly indicated.
In the oldest layer of the RP (the so-called Pravda of Iaroslav) the state—in the person of the prince—is absent, and civil and criminal law have not yet grown apart: most of the rules, undoubtedly based on earlier customary law, deal with delicts/crimes against life and physical integrity.
In the following layer (usually referred to as the Pravda of Iaroslav’s sons) the prince joined this system, almost as a private party, seeking similar or even improved legal protection for his servitors and officials.
Then the payment of private compensation was converted into the payment of a fine to the prince, and one could regard this as the birth of criminal law, clearly the oldest branch of public law.
In subsequent layers of the RP (in particular in the so-called Pravda of Monomakh, the principal component of the Extended Pravda) one finds more detail about procedural aspects, the role of the prince’s court. Monopolization of dispute settlement, the integration of the prince’s court in the social fabric, and the involvement of the prince’s officials in the enforcement of judicial decisions constituted the main avenue for the progress of the state. There are numerous manifestations of this tendency in the later layers of the RP.The more explicit forms of public law—the regulation of legal relationships within the government and public ad- ministration themselves, not directly affecting the interests of individual citizens—are to be found only in later sources. The so-called Charter of
Dvina Land of 1397 provides an example: it guaranteed a certain amount of judicial autonomy for local officials, forbidding the constables of the grand prince of Moscow to enter the territory. This is a clear illustration of the thesis that the emergence of public law properly speaking is prompted primarily by the need to limit the power of public authority, as the result of a bargain between the authority and a sufficiently strong counterpart.
The preceding argument about the private/public dichotomy in law, particularly as it appears in the perspective of legal history, implies