Private law

History

One of the five capital lawyers in Roman law, Domitius Ulpianus, (170–223) – who differentiated ius publicum from ius privatum – the European, more exactly the continental law, philosophers and thinkers want(ed) to put each branch of law into this dichotomy: Public and Private Law. "huius studdii duæ sunt positiones: publicum et privatum. Publicum ius est, quod statum rei Romanæ spectat, privatum, quod ad singulorum utilitatem; sunt enim quædam publice utila, quædam privatim". (Public law is that which concerns the Roman state; private law is concerned with the interests of citizens.)

The plebiscite lex Aquilia codified the law on damage to person and property through a particular fault. It is a forerunner of the modern law of tort. Other forms of private law included:

• Stipulatio: the basic form of contract in Roman law. It was formatted as a question and an answer. The precise nature of the contract was disputed, as shown below.
• Rei vindicatio: a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may be used only when the plaintiff owns the thing and the defendant is somehow impeding the plaintiff's possession of it. The plaintiff could also institute an actio furti (a personal action) to punish the defendant. If the thing could not be recovered, the plaintiff could claim damages from the defendant with the aid of the condictio furtiva (a personal action). With the aid of the actio legis Aquiliae (a personal action), the plaintiff could claim damages from the defendant. Rei vindicatio was derived from the ius civile, therefore was only available to Roman citizens.

In the modern era, Charles-Louis Montesquieu (1689–1755) amplified supremely this distinction: International (law of nations), Public (politic law) and Private (civil law) Law, in his major work: (On) The Spirit of the Law (1748). "Considered as inhabitants of so great a planet, which necessarily contains a variety of nations, they have laws relating to their mutual intercourse, which is what we call the law of nations. As members of a society that must be properly supported, they have laws relating to the governors and the governed, and this we distinguish by the name of politic law. They have also another sort of law, as they stand in relation to each other; by which is understood the civil law."