Development of the conceptual foundations of the ratio of public law to private law in classical German jurisprudence

Abstract

In the article, the author tries to focus on the problem of the evolution of views, ideas and concepts of the relationship between public and private law in classical German jurisprudence, taking into account the active influence of German legal doctrine in the formation of Ukrainian legal opinion on this issue. At the same time, the author attempted a generalized analysis of key theoretical positions in the history of the development of classical German legal doctrine regarding the distinction between public and private law.
The author came to the conclusion that for a long time (practically until the end of the 18th century) German legal opinion did not attach any significant importance to the division of law into public and private law, and German legal scholars of that time considered this issue traditionally in line with the ideas formulated by Roman jurists, without succeeding to proper legal argumentation.
At the turn of the 18th and 19th centuries, the first attempts to investigate the problem of the relationship between public and private law appeared in German philosophical literature, and later in legal doctrine, which began to develop actively. These subsystems are already considered as autonomous legal entities, because the concentration of political power in the hands of the state and the creation of public law also led to the separation of private law as a separate subsystem of law.
In the 19th century, during the formation of classical legal science, German lawyers thoroughly developed the issue of distinguishing public and private law, trying to clearly define its criteria, the ontological essence and methodology of legal regulation within these subsystems, as well as, in general, the transformation and development of positive law in the context of its division on public and private. At the same time, within the limits of the German legal doctrine of this period, a detailed argumentation of the concept of interest, the concept of the subject, the functional concept, the concept of subordination, as well as the mixed approach, which offers a combination of the provisions of these concepts, is proposed.
Since the end of the 19th century, under the influence of state intervention in the sphere of economy, active state regulation of social relations, development of concepts of social direction (in particular, the concept of the welfare state), a tendency to interweaving, rapprochement, and convergence of public and private law has been observed in German legal doctrine.