Law, Public Law & Comparative Public Law

Law: Its extent must be limited to positive law which primarily focuses on the law as it is or has been, and not as it might or should be. This meaning of law should not be expanded with the aid of theoretical and philosophical speculations.

Public Law: Public law shall be understood as the law that governs the relationship between the state, its government agencies, and amongst individuals towards their respective subject matters of regulation. For a more formalized approach, it is recommended to rely upon the works of Dr. Martin Loughlin who stated that “Public law is a form of political jurisprudence that incorporates no transcendental or metaphysical ideas of justice and goodness; it is concerned solely with those precepts of conduct that have evolved through political practice to ensure the maintenance of the public realm as an autonomous entity” [1].

Comparative Public Law "CPL": Considering that there is no universally accepted meaning of CPL, it would be reasonable to regard Dr. Rosco Pound. He believed that CPL is an aggregation of laws [2], it must go beyond legal precepts involving a comparison of legal systems at more than one place. A French jurist by the name of Pierre Lepaulle also interpreted CPL to be a comparison of a legal phenomenon in two countries [3].

Since there is no visibility of the paper’s reference material, it can be safely assumed that:

“Human rights” in this context would refer to ones stated in the Constitution of Ukraine [4] and to a larger extent, the United Nations Declaration of Human Rights [5] (“UDHR”).

Corporations being referred to would be governed by the National Principles of Corporate Governance [6].

Based on the above, it can be stated that the CPL research paper would have to at least be a comparison of the legal systems or legal precepts across two different countries or legal systems.

CPL papers that attempt to theorize the extent to which the rights of natural persons can be extended to companies incorporated in the Republic of Ukraine (“Ukraine”). However, on further research, there is no real comparison as these parties already enjoy common rights to:

1. Separate legal identity as natural and artificial jurist persons.

2. Hold, dispose, and deal with property.

3. Sue and be sued.

The above are common principles and features of standardized corporate law present throughout multiple legal systems across countries resulting in the paper not meeting the above test for CPL.

There must be a material distinction drawn across different legal systems with a guided interpretation of what this distinction means and entails for the interest parties. For this opinion to be in favour of CPL papers that could have compared the extent of replicability of corporate rights in Ukraine and another country or even perhaps the extent of enforcement and codification of human rights in Ukraine when compared to the UDHR.

There can be no paper without a definitive parallel drawn on common ground or subject across different legal systems.

[1] Chapter 9: Pure Theory of Public Law, The Idea of Public Law (2004) Oxford University Press. [2] What May We Expect from Comparative Law? (1936) American Bar Association Journal Vol. 22, No. 1. [3] Function of Comparative Public Law (1921) Harvard Law Review 838-58. [4] Verkhovna Rada, 5th Session (1996). [5] United Nations General Assembly (1948) 217 (III). [6] National Securities & Stock Market Commission (2014).

Art: The Trial of George Jacobs by Thomkins Matteson