Public Law and Private Law
On a very fundamental level, law can be divided into public law and private law.
Public law is concerned with matters that affect society as a whole.
Public law sets the rules for the relationship between individuals and the government.
Public law also sets the rules for government itself, and how its branches operate.
Public law therefore includes, among others, constitutional law, administrative law, tax law, criminal law, and procedural law.
Private law, on the other hand, deals with the relationships between individuals.
Among others, it contains the rules for contracts, tort law, business organizations and corporations, property ownership, the rights and obligations of family members, and so on.
Private law is particularly important for business, although public law – such as tax – are of course also significant.
Criminal and Civil Law
Another important distinction is that between criminal law and civil law.
Criminal law is part of public law. It deals with behavior that can be construed as an offense against the public, society, or the state, even if the immediate victim is an individual. Examples are murder, assault, and theft.
Civil law on the other hand deals with behavior that constitutes an injury to an individual or other private party, such as a corporation.
Tort law, for example, deals with civil wrongs, such as injury to property or bodily harm that is not criminal in nature. Tort law is therefore part of civil law.
However, a certain injury may well invoke both civil and criminal laws. It is even possible for someone to be convicted criminally but still win in a civil trial, and vice versa. For example, in the famous case involving former football player OJ Simpson, there was an acquittal – that is a non-guilty verdict – by a criminal jury. However, he was found civilly liable, based on tort law.
Criminal law and civil law differ with respect to how cases are initiated, how cases are decided, what kinds of punishment or penalty may be imposed, what standards of proof must be met, and what legal protections may be available to the defendant.
The following table and discussion illustrates the various differences between criminal and civil law further.
|NATURE OF CASE||CIVIL LAW||CRIMINAL LAW|
|Defendant||Private Party||Private Party|
|Burden of Proof||Preponderance of Evidence||Beyond Reasonable Doubt|
|Sanctions/Remedies||Damages, Injunctions, Equitable Remedies||Incarceration, Fines, Execution|
|Society/Public Policy||Compensation, Deterrence, Punishment||Deterrence, Punishment|
In civil cases, the plaintiff – the party that brings the lawsuit or action – is a private party, such as an individual or a business.
In criminal law, the plaintiff – also called the complainant in this context – is the government or the state, which acts as the prosecution.
In both civil and criminal cases the defendant is a private party, again either an individual or an organisation.
In order for a plaintiff to prevail in a civil lawsuit, there has to be a “preponderance of evidence” that supports the case and its alleged facts.
The burden of proof is more stringent in criminal law..
In criminal law, the test of evidence required is “beyond a reasonable doubt”.
This makes it more difficult to secure a conviction, which however makes sense given that criminal sanctions can be more drastic than civil sanctions.
In civil case, the sanctions or remedies typically consist of either damages, injunctions, equitable remedies – such as specific performance – or even a combination thereof.
In criminal law, some of the main sanctions include incarceration or prison, fines and penalties, or even execution.
Finally, civil and criminal law differ in certain respects when it comes to the underlying societal goals or public policies.
Civil law is about compensation – first and foremost – but also about deterrence of future misconduct and – to some extent- punishment. Punishment is normally not an important element of civil law, with the exception however of punitive damages in torts cases.
Criminal law is normally not about compensation. Here, the strong emphasis lies on specific and general deterrence – that is preventing the defendant as well as others from offending again.
Additionally, criminal law has a strong punitive element. In the same vein, criminal law is said to have certain signalling and expressive functions. Society uses criminal law to convey social meanings and norms, making it clear that certain types of behavior are regarded as particularly reprehensible.