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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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A Trojan Horse of the English Legal Tradition

A Trojan Horse of the English Legal Tradition

(p.72) 5 A Trojan Horse of the English Legal Tradition
A Continental Distinction in the Common Law

J. W. F. Allison

Oxford University Press

Contrasting with French focus on the state administration has been traditional English legal neglect, exemplified in a bifurcated view of individual officials and a Crown somehow separate from its officers. This chapter relates the traditional negation of the distinction between public and private law to that neglect, which it attributes to the lateness of administrative centralization in England and the theoretical insularity of the English legal profession. It describes belated 20th-century legal recognition (by Laski and others) of a state administration that was both alien and becoming increasingly indistinct through the expansion of its welfare functions and the proliferation of hybrid institutions. The outcome, it argues, was therefore not the ready entrenchment of the procedural distinction between public and private law in O'Reilly v Mackman on the scope of judicial review procedure. Rather, it was much dissatisfaction with repeated judicial attempts to apply the distinction to functions and institutions neither clearly public or private, further obscured by privatization, and still clouded by traditional understandings of the Crown.

Keywords:   Crown, public and private, centralization, administration, Laski, welfare functions, hybrid institutions, privatization, judicial review, O'Reilly v Mackman

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