INTRODUCTION

The purpose of this volume is to shed some light on the nature of “public interest”. This chapter attempts to do so for the field of private law. This aim involves considerable difficulty. Indeed, at least at first glance, the topic of this short chapter may almost sound like an oxymoron at least to civil lawyers. From early on in our legal education, we have been trained to distinguish between public law and private law, often considering these two as self-contained areas of the law with little, if any, connection between each other. Indeed, the Roman law definition of “private law”, prominently placed at the very beginning of the Digest, defines private law as law that looks at the interests of individuals, whereas public law addresses the state of the entire community: “publicum ius est quod ad statum rei publicae spectat, privatum quod ad singulorum utilitatem.”

This Civil Law attitude seems, at first glance, to be in stark contrast with the Common Law where the concept of public policy has been described as “one of the most ancient, esoteric and pervasive creations in the history of common law“. While at least academic commentators have acknowledged the lack of a working theory of public policy, there is a wealth of case law and academic publications dealing with this concept. On the other hand, the standard commentary on the German Civil Code does not even list the keyword “public interest” in its index. Obviously, the mere fact that the term “public interest” as such does not appear often in private law does not necessarily mean that the concept is unknown or unused in Civil Law countries. In spite of the apparent paucity of authority available on the subject, this short chapter seeks to identify some aspects where public interests, albeit maybe under a different name, are taken into account in private law even in Civil Law systems.

DELINEATION OF THE SUBJECT

The notion of “public interest” is extremely broad. The term can mean anything affecting the rights, health, or finances of the public at large.