VARIATION OF VIEW ON ENGLISH LEGAL DISTINCTIONS BETWEEN PUBLIC AND PRIVATE

2007 ◽  
Vol 66 (3) ◽  
pp. 698-711
Author(s):  
J. W. F. Allison
Keyword(s):  
Public Law ◽  
Normative Theory ◽  
Analytical Treatment ◽  
Public Authorities ◽  
Public And Private ◽  
State Action ◽  
The Public ◽  
Normative Evaluation ◽  
The One ◽  
The Way

The debate about distinguishing public law and private law has been wide-ranging and variously focused. It has contributed to a paradox (or contradiction) in legal thinking, described by Peter Cane in his contribution to Public Law in a Multi-Layered Constitution. On the one hand, Cane stresses that the distinction between public and private “seems alive and well”––manifest, inter alia, in judicial review procedure and the establishment of an Administrative Court in England, in EC law (demarcating the scope of directives with direct effect), in the provisions applicable to public authorities in the Human Rights Act 1998, in the “state action” doctrine of the US Supreme Court, and in the statutory demarcation of the Administrative Appeals Tribunal's jurisdiction in Australia. On the other hand, he stresses the extent of scholarly criticism of the distinction––that it is outmoded, descriptively inaccurate or normatively undesirable. In his view, the resolution of the paradox lies in recognition that “the supporters and the opponents of the public/private distinction are talking about different things”. He concludes that, for its opponents, as a result of institutional and functional hybridisation, “the distinction misrepresents the way power is distributed and exercised” but that, for its supporters, “it embodies an attractive normative theory of the way power ought to be distributed and its exercise controlled”. In his presentation of the paradox and its resolution, Cane thus brings together various views and distinctions––English, American and Australian––and suggests that a contrast between descriptive criticism and normative evaluation is crucial to understanding the public/private debate. By the breadth and inclusivity of his analysis, however, he also brings into question the desirability of unitary analytical treatment of various distinctions in various contexts, supported and opposed by people talking about “different things”.

scholarly journals The possibilities of consensual resolution of judicial conflicts with the Public Administration

2018 ◽  
Vol 18 (72) ◽  
pp. 31-50
Author(s):  
Gabriel Perlingeiro
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
A Priori ◽  
Public Law ◽  
Clear Understanding ◽  
Private Law ◽  
Public Authorities ◽  
Public And Private ◽  
The Public ◽  
Legal Studies

This text endeavors to define the theoretical limits of the capacities of the public administrative authorities to reach consensual solutions to disputes within the framework of judicial review. It is motivated by the lack of a clear understanding in Brazilian law of the border area between the legal relations of public and private law involving the public authorities, and the expressions “inalienable right” (or “inalienable interest”) and “public interest” as shown by the inexplicable asymmetry between what the public administrative authorities can do within a judicial proceeding and outside one. Based on a comparative study of common law versus civil law legal systems and an examination of the treatment of the subject in Brazilian statutes, case law and legal studies, this article reviews the relationship between the public interest and inalienability, demonstrating, in conclusion, that the possibility of the administrative authorities to enter into settlements or follow similar practices should not be rejected a priori, even in cases of public law. According to the author, there are three possible scenarios in which public administrative authorities may resort to consensual dispute resolution in the context of the judicial review: in private-law relationships, in public-law relationships with respect to the exercise of administrative actions prescribed by law and public-law relationships with respect to the exercise of discretionary powers.

10. Negligence: Duty of Care—Public Bodies

2017 ◽  
Author(s):  
Mark Lunney ◽  
Donal Nolan ◽  
Ken Oliphant
Keyword(s):  
Common Law ◽  
Public Law ◽  
Public Authority ◽  
The Political ◽  
Private Law ◽  
Public Authorities ◽  
Public And Private ◽  
The Public ◽  
Economic Considerations ◽  
Public Bodies

This chapter focuses on the negligence liability of public authorities. It discusses how negligence actions against public bodies may have both public and private law dimensions. The discussion of the public law dimension focuses on the mechanisms that have been employed in response to concerns about the political nature of some public authority decisions, and the fact that those decisions frequently involve the balancing of social or economic considerations, and the interests of different sections of the public. The discussion of the private law dimension of negligence actions against public bodies considers policy reasons for limiting the liability of public bodies and statutory responsibilities as a source of affirmative common law duties. The chapter concludes with a consideration of proposals for reform of the law in this area.

Fiduciary Principles and Public Offices

2019 ◽  
pp. 302-322
Author(s):  
Ethan J. Leib ◽  
Stephen R. Galoob
Keyword(s):  
Administrative Law ◽  
Public Law ◽  
Public Institutions ◽  
Policy Implications ◽  
Public Officials ◽  
Public Office ◽  
Public And Private ◽  
Normative Structure ◽  
The Public ◽  
Positive Law

This chapter examines how fiduciary principles apply to public offices, focusing on what it means for officeholders to comport themselves to their respective public roles appropriately. Public law institutions can operate in accordance with fiduciary norms even when they are enforced differently from the remedial mechanisms available in private fiduciary law. In the public sector, fiduciary norms are difficult to enforce directly and the fiduciary norms of public office do not overlap completely with the positive law governing public officials. Nevertheless, core fiduciary principles are at the heart of public officeholding, and public officers need to fulfill their fiduciary role obligations. This chapter first considers three areas of U.S. public law whose fiduciary character reinforces the tenet that public office is a public trust: the U.S. Constitution’s “Emoluments Clauses,” administrative law, and the law of judging. It then explores the fiduciary character of public law by looking at the deeper normative structure of public officeholding, placing emphasis on how public officeholders are constrained by the principles of loyalty, care, deliberation, conscientiousness, and robustness. It also compares the policy implications of the fiduciary view of officeholding with those of Dennis Thompson’s view before concluding with an explanation of how the application of fiduciary principles might differ between public and private law settings and how public institutions might be designed or reformed in light of fiduciary norms.

Requalification of Old Places in Brussels: Increasing Density, Improving Urbanity

2010 ◽  
Vol 35 (4) ◽  
pp. 9-19
Author(s):  
Priscilla Ananian ◽  
Bernard Declève
Keyword(s):  
Morphological Observation ◽  
Public And Private ◽  
Urban Forms ◽  
Capital Region ◽  
The Public ◽  
Multi Scale ◽  
Main Challenge ◽  
Local Functions ◽  
Development Policies ◽  
The One

Brussels Capital Region has to deal with urban conflicts arising from the different kinds of land uses. On the one hand the process of metropolisation has intensified the inner city's land use through residential, economic and urban development and on the other hand this same process has contributed to the expansion and sprawling of the city beyond its administrative borders. The city's main challenge is to ensure the cohabitation of different urban forms and densities in a multi-scale level related to metropolitan and local functions (Ananian P. 2010). Brussels, originally an industrial city, has become an administrative centre, generating a series of disaffected areas. Urban regeneration and sustainable development policies aim to improve the standard of living through urban, social and economic enhancements. Indeed, these policies deal with the construction, renovation and requalification of obsolete areas into new dwelling complexes. In this context, the present article shows the results of a broader research commissioned by the Brussels Capital Region on residential densification between 1989 and 2007(Declève B. Ananian P. et al 2009). Through the analysis of this inventory, we have identified three main techniques concerning the requalification of old places into residential uses: firstly the reurbanisation of brownfields generated by the delocalisation of large facilities; secondly the requalification and reconversion of isolated buildings (abandoned and obsolete industrial and office buildings) and last but not least, the recycling of terrains merged into the urban fabric of old neighbourhoods. Following two methodological approaches (morphological observation and analysis of social perception), this research has shown us that, in the last twenty years of housing production in Brussels, the main abandoned buildings and sites that were available were requalified, increasing density and improving urbanity through the diversity of the urban forms adopted for the public and private spaces.

Technology, Contracts, and Electronic Resources

2012 ◽  
pp. 166-196
Keyword(s):  
Public Services ◽  
Public Law ◽  
Public Access ◽  
Collection Development ◽  
Electronic Resources ◽  
Digital Revolution ◽  
The Public ◽  
Card Catalog ◽  
Electronic Technologies ◽  
The Way

The electronic revolution, which began over fifty years ago, has changed not only the way libraries operate but the way people conduct research and business, interact with each other, socialize, communicate, and even commit crimes. Originally, the phrase “library electronics” referred to an ILS (integrated library system) or an OPAC (online public access catalog). Today, this same phrase refers to not only the ILS, OPAC, and public access computer but to print management and computer reservation software, e-books, CD-ROMs, databases, and CALR vendors. As technology has changed libraries, it has also changed users’ behaviors, research techniques, public services, and the librarian’s role. Intended to be an extension of the collection development and public services chapters, this chapter explores the effect of the digital revolution on the public law library, ways public law libraries can utilize the technology, and how and why these libraries are being driven to increase their use of digital technology. Because contracts are commonly thought of as being associated with electronic resources, the authors have chosen to discuss contract issues in this chapter rather than in the Collection Development chapter. Other related topics include transitioning from the card catalog to the OPAC and ILS, electronic formats, vendor selection, miscellaneous electronic technologies, and pricing issues.

Six Dimensions of Public Law

2020 ◽  
pp. 399-430
Author(s):  
Paul Craig
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Case Law ◽  
Public Law ◽  
The European Union ◽  
The Public ◽  
The United Kingdom ◽  
Six Dimensions ◽  
The Impact ◽  
The Way

This chapter draws on the six dimensions of public law covered in the book: theory, institutions and accountability, constitutions and rights, process and procedure, legislation, and case law. It links discussion of these dimensions, by considering how they have been affected by Brexit. The chapter is not concerned with the contending arguments for leaving or remaining in the European Union. The focus is on the way in which Brexit has ‘pressure-tested’ the public law regime in the United Kingdom and the European Union. The six dimensions of public law that are discussed in the preceding chapters form the architectural frame through which the impact of Brexit on the public law regimes is assessed in both the United Kingdom and the European Union.

scholarly journals THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES FOR OMISSIONS

2019 ◽  
Vol 78 (3) ◽  
pp. 545-569
Author(s):  
Tom Cornford
Keyword(s):  
Common Law ◽  
Public Law ◽  
Public Authority ◽  
Duty Of Care ◽  
Public Authorities ◽  
The Public ◽  
The Common

AbstractIn this article I address the question of whether the omissions principle – the principle that the common law does not impose liability for omissions – applies with the same force in negligence cases involving public authority defendants as in cases involving private defendants. My argument is that the answer depends upon the answer to a prior question: can a duty of care be based upon the public law powers and duties of a public authority? In making my argument, I refute the views both of those who insist that a claim in negligence against a public authority can be rejected purely because it relates to an omission not falling within one of the standard exceptions to the omissions principle and of those who insist that such a claim can succeed while at the same denying that a duty of care can be based on a public authority's public law powers and duties.

International Composite Administration: Conceptualizing Multi-Level and Network Aspects in the Exercise of International Public Authority

2008 ◽  
Vol 9 (11) ◽  
pp. 2013-2039 ◽  
Author(s):  
Armin von Bogdandy ◽  
Philipp Dann
Keyword(s):  
International Law ◽  
Public Law ◽  
Common Phenomenon ◽  
Public Authorities ◽  
Public International Law ◽  
The Public ◽  
Administrative Action ◽  
Role Of The State ◽  
Multi Level

The administration of the traditional nation-state used to operate as a rather closed system to the outside world. Today, cooperation between the public authorities of different States and between States and international bodies is a common phenomenon. Yet the characteristics and mechanics of such cooperation can hardly be understood using the concepts domestic public law or public international law currently on offer. Conventional concepts, such as federalism, confederalism or State-centered “realism” hardly fathom the complexity of interactions or reflect the changed role of the State, while more recent concepts, such as multi-level systems or networks, seem to encompass only parts of the phenomena at hand. Given this void, we propose to explore the notion of “composite administration” (Verbundverwaltung) and argue that it offers a concept which can combine more coherently the seemingly diverging legal elements of cooperation and hierarchy that distinguish administrative action in what often is called a multi-level administrative system. Even though the concept of composite administration was originally designed and further developed with respect to the largely federal European administrative space, we suggest testing the concept in the wider context of international cooperation. We believe that it offers valuable insights and raises critical questions, even though we do not intend to insinuate any proto-federal prospects of the institutions discussed in this paper.

scholarly journals Juridical Persons and Subjects of Public Law: in Legal Balance Search

2016 ◽  
Vol 4 (8) ◽  
pp. 0-0
Author(s):  
Вениамин Яковлев ◽  
Vyeniamin YAkovlyev ◽  
Эльвира Талапина ◽  
Elvira Talapina
Keyword(s):  
Administrative Law ◽  
Public Law ◽  
New Classification ◽  
Public Authorities ◽  
Public And Private ◽  
Civil Status ◽  
Juridical Person ◽  
Public Entity

The joint position of civil and administrative law specialists concerning an opportunity and need to obtain by public law subjects of the juridical person status is presented in this article. Public entity is a civil law subject, but it is presented by its public bodies. Considering features of public authorities as juridical person, authors draw the conclusion about a secondary role of a civil status. The article suggests new classification of administrative law subjects for public and private subjects depending on their role in public administration. The category of the juridical person of public law could be useful to settle the problem of the state “double face” in private relations. At the same time the authors call attention to various and ambiguous prospects of the Russian legislation development in this concept should be employed. The authors have formulated the principle of correct adoption according to which traditional civil concepts have to be accepted by public law in their initial understanding, without distortions, and vice versa.

scholarly journals MEDIATION IN ADMINISTRATIVE PROCEEDING: MYTH OR REALITY NOWADAYS

2020 ◽  
Keyword(s):  
Administrative Law ◽  
Public Authority ◽  
Modern World ◽  
Public Authorities ◽  
Acceptable Solution ◽  
The Public ◽  
Service Conception ◽  
Administrative Proceeding ◽  
State And Local ◽  
The One

In legal life of the modern world common ways of resolution to the legal disputes (conflicts) are not always efficient, since, as a rule, interests and needs of the one side and sometimes even of the both ones are left unsatisfied. Appeal to the public authorities because of each law conflict results in overloading of courts and administrative authorities. Implementation of other alternative ways of resolution of legal disputes, for example, such as mediation, can be an option to improvement of justice access and to reduction of court overloading. The article is devoted to reviewing the peculiarities of implementation of the method of mediation in administrative proceeding. It reports on attributes of administrative law conflict and also on peculiarities of conducting the procedure of mediation. Scholarly works of domestic scientists such as Sydelnikov O. D., Krasilovska Z. V., Lysko A., Mazaraki N. A. and others have been devoted to this problematique. Mediation - is a consensual and confidential procedure extrajudicial settlements of conflicts, in which a mediator helps the sides to understand their interests and search efficient ways of achieving mutually acceptable solution. The sphere of administrative disputes is the most difficult for implementation of mediation procedure. It is specified by typical peculiarities for such disputes and also by legal nature of subjects of administrative legal relationship. Exactly because of this, some scientists refer to partial nonmediability of such disputes, as one of the side in this case is always an organ of public authority. Approaching a compromise between public authority and a citizen is a prioritized direction of state and local authority activity. The procedure of mediation can be applied only in certain administrative disputes. In this case it is possible to single out advantages of implementation of the mediation procedure in dealing with administrative law conflict, they are effectiveness, saving funds and time, speed, confidentiality, unloading administrative courts, embodiment the principle of service conception of the state, the principle of the rule of law and proper management.

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