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A Continental Distinction in the Common LawA Historical and Comparative Perspective on English Public Law$
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J.W.F. Allison

Print publication date: 2000

Print ISBN-13: 9780198298656

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780198298656.001.0001

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(p.247) Afterword
A Continental Distinction in the Common Law

J. W. F. Allison

Oxford University Press

Procedural reform, as well as litigation and controversy about the English distinction between public and private law, continued after this book's main text was first published. This Afterword updates the main text by considering later legal developments relating to the English distinction's prominence and the suitability of its context. It assesses the further retreat from the principle of judicial review's procedural exclusivity in public law through the Woolf reforms as implemented in the new Civil Procedure Rules 1998. It suggests that the problem of distinguishing public and private in substantive law has been aggravated by two further controversial distinctions demarcating the scope of state liability in Community law and that of the Human Rights Act 1998 in purely domestic law. Addressing, inter alia, correctives to adversarial procedure in the Civil Procedure Rules 1998, renewed attention to the separation of powers, and criticism of this book, such as Paul Craig's on the conceptual relevance of the state in public law, the chapter describes continuing difficulty in establishing a satisfactory separate system of English public law for want of sufficient congruence with prevailing conceptions of institutions and procedures

Keywords:   public and private, judicial review, Woolf reforms, Civil Procedure Rules, Human Rights Act, state liability, adversarial, separation of powers, state, Craig, system

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