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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 Substantive Distinction

A Substantive Distinction

Chapter:
(p.170) 8 A Substantive Distinction
Source:
A Continental Distinction in the Common Law
Author(s):

J. W. F. Allison

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198298656.003.0008

A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.

Keywords:   public and private, separation of powers, Conseil d'Etat, judicial role, state liability, proportionality, judicial restraint, ultra vires, justiciability, convergence

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