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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 Categorical Approach to Law

A Categorical Approach to Law

(p.109) 6 A Categorical Approach to Law
A Continental Distinction in the Common Law

J. W. F. Allison

Oxford University Press

To clarify another contextual feature affecting the working of a distinction between public and private law, this chapter elaborates on the novel concept of a categorical approach characterized by its treatment of law as a systematic and exhaustive body of rules. It attributes the insignificance of the Roman and medieval distinctions to the lack of such an approach. It describes its evolution in France — inter alia, through humanist systematization, periods of codification, and the influence of the French Exegetical School — and its culmination in the categorical distinction between public and private law in the Blanco case. The chapter contrasts the traditional remedial, pragmatic, and unsystematic English approach manifest in resistance to codification and the gradual secretion of public law principles in the procedural interstices of various prerogative and ordinary remedies. It attributes the systematic problems in applying the procedural distinction in O'Reilly v Mackman — mainly the confused assortment of distinguishing criteria and the indeterminacy of exceptions to judicial review's exclusivity in public law — to the continuing lack of a categorical approach in the attempt to systematize procedures.

Keywords:   system, medieval, codification, humanist, Exegetical School, Blanco, pragmatic, principles, O'Reilly v Mackman, distinguishing criteria

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