Abstract
The author notes that legal dualism has been criticised primarily by highlighting the inconsistency of theories seeking to uncover the differences between private and public law. He argues that this shows the inadequacy of such theories rather than the non-existence of legal dualism.
The division into private and public law rests on material grounds: private law as an independent and primary category can exist only in a society or state which respect the freedom of an individual and have trust in his or her initiative. In modern times in which the catalogue of human rights enshrined in constitutional documents is regarded as imbued with normative power and direct applicability, constitutional law is perceived differently and no longer as a part of public law.
Consequently, legal dualism becomes a phenomenon of sub-constitutional law, while constitutional law is seen in the national legal system as a third category. While private law typically emphasises the protection of private interests and public law underlines public interest, the role of constitutional law is to strike and ensure the right balance between them in accordance with the principle of proportionality and the paradigms of material rule of law.