Transformation of theoretical constructions of the relationship between the public and the private law in the Romano-Germanic legal tradition

Abstract

This article is dedicated to the study of the evolution of theoretical constructs regarding the relationship between the public and the private law in the Romano-Germanic legal tradition. The author traces the transformation of conceptual approaches from the ancient dichotomy to modern convergent models.
The key stages in the development of the doctrine of dividing law into public and private are examined: the Roman concept of law division, medieval interpretations, the revival of interest in the subject in the 16th-18th centuries, the formation of classical theories in the 19th century, and their reconsideration in the 20th-21st centuries. The main criteria for distinguishing between the public and the private law are analyzed, including the concepts of interest, subject-based concept, subordination and functional concepts. Attention is focused on the impact of the socio-economic transformations, European integration, and globalization on the rethinking of the traditional distinction between the public and the private law. The author analyzes the views of leading European legal scholars on the problem of «publicization» of the private law and «privatization» of the public law, as well as on the phenomenon of legal convergence.
Special attention is paid to current trends in the Romano-Germanic jurisprudence, including criticism of the traditional division, recognition of the interpenetration of the public-law and private-law elements, and concepts of «mixed» and «hybrid» branches of law. The author identifies several theoretical models of the relationship between the public and the private law that have successively replaced one another: dichotomy/dualism, diffusion, integration, convergence.
It is emphasized that despite criticism and modern challenges, the division into the public and the private law remains an important characteristic of the Romano-Germanic legal system. At the same time, there is a tendency towards a more flexible understanding of this division and a search for balance between preserving tradition and adapting to new realities of legal regulation. The author underlines the importance of further study of the relationship between the public and the private law for the development of the modern legal theory and practice in the context of finding an optimal balance between the public and the private interests in legal regulation.