Public and private law: understand the differences and applications.

If you are beginning your studies in Right If you're thinking about pursuing this career, you've certainly come across the terms public and private law. And if you're unsure what that means in practice, don't worry, because that's a very common question!

Understanding the difference between public and private law is important for understanding how the legal system works in Brazil and around the world in general. 

Ultimately, this division is the basis for organizing the branches of law, and it directly influences how laws are applied. In this article, we will explain in simple terms what each branch is, where they operate, and how they differ. 

What is public law?

Public law is the branch of law that regulates the relations between the State (including its organs and entities) and individuals (natural or legal persons). It is composed of a set of rules that aim to protect the collective interest, organizing the actions of public power and ensuring that the State fulfills its functions in a fair and balanced manner.

In this relationship, the State occupies a position of superiority, as it acts in the name of public power. However, this does not mean that it can act arbitrarily, since there are legal rules and principles that limit its actions, ensuring that power is exercised responsibly and with respect for individual and social rights.

Main areas of public law

• Constitutional Law: This is the area that defines the structure of the State, the organization of powers (Executive, Legislative, and Judicial), and guarantees the fundamental rights of citizens.
• Administrative LawThis regulates the actions of the public administration, establishing rules for public services, bidding processes, administrative acts, and the relationship between the government and citizens.
• Criminal Law: Deals with crimes and punishments, protecting society against actions that violate public order and collective security.
• Tax Law: This branch of law deals with the collection of taxes, fees, and contributions, defining the fiscal obligations of individuals and companies to the State.
• Procedural Law: organizes the functioning of judicial processes (civil, criminal, and administrative), ensuring that disputes are resolved fairly and within the law.

In short, when the State intervenes directly, with legal authority, we are talking about public law.

What is private law?

Private law, on the other hand, deals with relationships between people, whether individuals or companies, under conditions of legal equality. Here, the focus is on the particular interests and autonomy of the parties involved.

The main branches of private law are:

• Civil law: This is the most comprehensive branch of law, regulating topics such as contracts, civil liability, inheritance law, family law, and obligations in general.
• Business law (or commercial law): This is the area that deals with the economic activities carried out by companies and entrepreneurs, such as partnerships, trademarks, or business contracts.
• Family and inheritance law: deals with family ties, marriage, child custody, inheritances, and wills.

In private law, the State may participate as a party (for example, when a public body enters into a contract with a company), but it is on an equal footing with the other party.

Difference between public and private law

Now that we've seen what public law is and what private law is, let's make a direct comparison. This makes it easy to understand when we're dealing with one or the other.

In public law, the parties involved are generally the State and an individual, while in private law, the relationship occurs between natural or legal persons. The nature of the relationship in public law is unequal, as the State exercises authority over the individual, whereas in private law, the parties are in a position of equality.

In public law, the predominant interest is collective or social, as in criminal proceedings or the payment of taxes. On the other hand, in private law, particular or individual interests prevail, as in rental or purchase and sale agreements.

Furthermore, in public law, the rules are more rigid and there is little flexibility for negotiation. In private law, however, there is greater freedom for the parties to adjust clauses and agreements according to their needs.

In other words, if you are faced with a situation where the collective interest is at stake and the State is exercising power, it is most likely a matter of public law. Now, if it is a relationship between private individuals, such as a contract between two companies or an amicable divorce, it is certainly private law.

And what happens when there's a mixture?

Although public law and private law are distinct in nature, there are situations where they intertwine, creating hybrid legal relationships. In these cases, rules from both branches apply, depending on the aspect being analyzed.

One instance of this intersection occurs in Public-Private Partnerships (PPPs), where the State (public law) enters into a contract (private law) with a private company for the provision of services or the execution of works of collective interest.

Why does this happen?

The complexity of social relations and the need to balance public interest and private freedom mean that, in certain cases, the two branches of law complement each other. The State cannot cease to be a regulator, but it also cannot stifle agreements that depend on flexibility.

Public and private law: essential for building a solid foundation in law with ESEG Faculty.

Knowing how to differentiate between public and private law is essential for any law student or professional. This division not only helps organize the branches of legal knowledge, but also allows one to understand who is involved in the relationship, what the predominant interest is, and how the rules work.

If you're just starting out or want to strengthen your foundation, this is one of the first topics worth studying carefully. It will appear in several subjects throughout your studies. degree in Law and also, in practice, professionally.

Want to understand more about the differences between public and private law?

Deepen your studies with the ESEG College. With up-to-date courses and training geared towards today's job market, you'll be more than prepared to build a solid and transformative career in the legal world.