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Roman Private Law as a Basis for Understanding Modern Public Law

How are private law and the public law related? Does this relationship matter? Professor Richard Epstein explains how his approach to the public law is unique because he has carefully studied the Roman private law. Professor Epstein argues that most public law concepts arose from classical private law arrangements. https://youtube.com/watch?v=aS18rXMaLWE


Getting the private law right is important, not only for dealing with disputes between ordinary individuals, getting rid of the fictions and the artificial conventions that crop in if you don't get the system properly organized, but it turns out that if you understand the way in which the private law is put together you will never think about the public law in the same way again. What happens is this framework starts as a private law issue and then sooner or later, as you deal with the cases of public necessity and so forth, it becomes a public law issue. And all of a sudden the same rules of just compensation that you have in the private law become the rules of just compensation that you have under the fifth amendment to the Constitution. And the large difference between myself as a constitutional lawyer, the Supreme Court, lower court judges, and most academics: I came to constitutional law out of Roman law, and they come to constitutional law out of the constitution, and they don't worry so much about this substructure. And my own view is that just never works. All of the public law is based upon these private law conceptions. Private property, freedom, and so forth, contract, are all built into the Constitution. They're all short words with immense histories, just the way the word iniuria is a short word with an immense history. Just the way the word causation looks to be real simple until you break it down into its 52 different components. And public law shares those kinds of difficulties. And at some point what I hope to be able to do is to explain the way the carry over from the public to private law works and forces you to make a fundamental re-examination of those public law conceptions.

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