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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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The Separation of Powers

The Separation of Powers

Chapter:
(p.136) 7 The Separation of Powers
Source:
A Continental Distinction in the Common Law
Author(s):

J. W. F. Allison

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198298656.003.0007

Contradictory institutional demands for both judicial independence and expertise in administrative disputes are related to theoretical and everyday requirements of objectivity and subjectivity. This chapter describes the development of the radical French separation of powers — in reaction to the roles of the pre-Revolutionary Parlements and in response to the theories of Montesquieu and Rousseau — and the consequent assumption of judicial functions by the Consei d'Etat within the French administration. It shows how the judicialization of their exercise enabled the Conseil d'Etat broadly to satisfy those demands, and thus help entrench the French distinction between public- and private-law courts. The chapter contrasts the English emphasis on judicial independence, identified with the abolition of prerogative courts and the revolutionary settlement, and confirmed by Blackstone amongst others. The 20th-century Hewart—Robson debate on administrative tribunals, their subordination to the supervisory jurisdiction of the ordinary courts after the Donoughmore Inquiry, and the relatively limited administrative expertise of judges on the Crown Office List, it explains as indicative of an enduring problem — securing both judicial independence and adequate judicial expertise — for an institutional English distinction between public- and private-law courts.

Keywords:   Parlements, Montesquieu, Rousseau, Conseil d'Etat, prerogative courts, Blackstone, Hewart, Robson, Donoughmore Inquiry, judicial independence

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