2 Chapter 4: How Public Law Structures Politics
To continue a long-running theme of this book, the definition of public law is murky, however. In numerous indirect ways the broader concept of the law (a system of rules adopted by a country) always touches upon government and individuals—it is, of course, the government itself that makes law, judicial institutions and actors adjudicate law, and individuals are invariably effected. For example, a tort case in which a private person brings an injury claim to court against another private person will always have some effect upon society. Suppose this hypothetical tort case involves a bicyclist who was hit by a motorist. Local government may seek to mitigate against future accidents by constructing a bicycle lane or a four-way stop or a traffic light on the road in which the accident took place, mandate bicycle helmets for riders, or lower the speed limit in certain areas. In short, private law has a public effect. But what makes public law unique is that the government is not merely an arbitrator but a key subject in the proceedings that are adjudicated. The relationship between government and individuals is not an equal one: private persons are subordinate to the state. Public law is the legal mediation of this unequal relationship between government and private persons. There are distinct areas of public law: constitutional law, criminal law, administrative law, tax law, and procedural law. In this chapter we will focus on constitutional law and provide a brief overview of criminal law.
Common Law vs Civil Law
To begin, it is important that we draw a distinction between the common law tradition and the civil law tradition. It may be helpful to think of common law and civil law as broad legal systems that determine how public law operates in a particular country. Common law refers to law that is made from the precedent of judicial decisions. In a common law country, judges—particularly those in the highest courts—can make law by deciding cases between private persons or between government and private entities.
Example 4.1
The U.S. Supreme Court decision Roe v Wade (1973), which found a constitutional right for women to have access to an abortion, is an example of law made through a common law tradition. Key to the concept of common law is the legal principle stare decisis (Latin for “let the decision stand”), a principle in which judges are bound to precedent (past cases).
In a common law country, no judicial decision stands in isolation—every case and decision are connected to a body of law relevant and binding to future cases, a veritable library of judicial decisions in the past that directly determine cases in the present.
When we say that past decisions are binding, this does not mean that precedent is a concrete, immovable force and that all present cases are completely determined by past decisions. Precedent can be and has been overturned. Generally speaking, the older the precedent and the m