The Opacity of Public Law? 6-24 January I am also teaching DAAD.

Sometimes I am confronted by the fact that public law is essentially more complex than private law.
It is.
The reason is because people’s lives and liberty are at stake, not just their property. Public law is the law of “go to jail” “go to war” “pay that tax” and so on. Thus, it is hotly contested.

Because the stakes are much higher and hotly contested the law itself is more conflicted. 

I try to impose structure into this area of law in these ways:

1) Look at law as four branches: Public, Private, National, International 

Our course is public national law, though we look to analogies from private national and public international law.

2) Structure the term “right”
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)

“Rights to” versus “freedoms from” 

Civil and Political Rights (Bürgerrechte)

Economic and Social Rights (Vornahmerechte)

*Objektives Recht – der Begriff leider gibt’s nicht im Englischen.

*Subjektives Recht – etwa “Vested right”) so

Vested 

Executory

In personam

In rem

Hortatory

Positive (Positives Gesetz)

Natural (Vernunftrecht)

3) Hierarchize norms: 

a) What is the source of the norm?

b) What is the purpose of the norm?

4) Impose a hierarchy of interpretion (Savigny’s four step “Waltz”)

5) Presumptions and burdens of proof.

6) Impose structure using the “general rule” versus “specific exception” distinction

7) Judicial parsimony

 (“Nur entscheiden, was entscheiden werden muss; Achtung! Urteilstil! Nicht für Prüfung geeignet!)

8 Stare decisisis: i.e. the rule of precedent.

Yes, this field of law IS the most complex. It’s because it can well be literally a matter of life and death!

From 6-24 January I am doing a DAAD course. This means that Tuesday we will start at 4:15 or even 4:30. It also means that the Tuesday sessions will be for review / question and answer. I will probably not have time on Tuesdays to set up the video projector (Beamer).

If you have any questions just ask!