scholarly journals Rethinking the Public-Private Law Divide in the Age of Governmentality and Network Governance

2018 ◽  
Vol 5 (2) ◽  
pp. 119-143 ◽  
Author(s):  
Lukas van den Berge
Keyword(s):  
Common Law ◽  
Modern Art ◽  
Public Law ◽  
Network Governance ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
European Public ◽  
Present Context ◽  
Stateless Society

This article presents an analysis of the ways in which the public-private law divide is envisioned in French, English and Dutch law. First, it explains why French law’s tradition of regarding public and private law as ‘two separated worlds’ is now outmoded, failing to live up to the present trends of ‘governmentality’ and ‘network governance’ determining the modern art of government. Subsequently, it argues that the holistic idea of English ‘common law’ as French law’s conceptual counterpart is equally outmoded, with its ideology of ‘self-government’ within a ‘stateless society’ being out of touch with an age of managerialism and ‘governmentality’ in which the state withdraws from society only to increase its grip on societal processes. Finally, it proposes a paradigm recently developed in Dutch doctrinal thought as an attractive theoretical framework for structural innovations that may contribute to a stable and legitimate system of modern European public law that attunes to its present context without being alienated from its central classical tenets – be it either those rooted in the French or the English tradition.

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.

Public/Private

2020 ◽  
pp. 466-480
Author(s):  
Jean-Bernard Auby
Keyword(s):  
Essential Feature ◽  
Common Law ◽  
Public Domain ◽  
Public Law ◽  
Roman Law ◽  
Private Sphere ◽  
Private Law ◽  
The Public ◽  
Private And Public ◽  
The Relationship

This chapter examines the distinction between public law and private law. It stresses the importance of being aware of this difference between the public/private and public law/private law dichotomies. The public–private divide is universal even if, from one society to another, it can be conceived differently in certain ways. All human communities have an idea about the relationship between the private sphere and the public domain. By contrast, the distinction between public law and private law is not universal. It may be ignored, rejected, or confined to a very limited sphere of operation as, traditionally, in common law systems. Conversely, the public law/private law distinction may be understood as an essential feature of the juridical world, as was the approach of Roman law, inherited by the continental legal systems.

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.

scholarly journals The Public and Private Sides of Harmonized Standards:James Elliott Construction v. Irish Asphalt

2018 ◽  
Vol 19 (6) ◽  
pp. 1399-1416
Author(s):  
Pierluigi Cuccuru
Keyword(s):  
Public Law ◽  
Private Law ◽  
Technical Standards ◽  
Public And Private ◽  
The Public ◽  
Legal Provisions ◽  
Technical Specifications ◽  
Points Of View ◽  
Technical Standardization ◽  
The Eu

AbstractInJames Elliott v. Irish Asphalt, the Court of Justice of the Union addresses the interplay between the EU legal order and harmonized standards—i.e. non-binding technical specifications for products drafted by private bodies upon request of the Commission. The judgment offers interesting insights from the public law and the private law points of view. This Article touches upon both aspects. First, it considers that the Court extends its jurisdiction over harmonized standards under Article 267 TFEU, thus paving the way for a deeper intersection between European judiciary and technical standardization. Second, the paper highlights the Court's understanding of the interplay between harmonized standards and national private law. In this latter regard, it is argued that a rigid separation between technical standards and legal provisions might be excessively formalistic considering the use of technical standards in practice.

Interim relief in the public law context

1999 ◽  
Vol 58 (1) ◽  
pp. 1-48
Author(s):  
Nicholas Bamforth
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Public Law ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
Private Citizens ◽  
The Subject ◽  
The Individual ◽  
Law Commission

THE remedial aspects of judicial review illustrate in particularly vivid form the divergent nature of public and private law proceedings. The prerogative orders–mandamus, certiorari and prohibition–are available only via judicial review. Leave is required for judicial review but not for private law actions. By contrast with the private law writ procedure, judicial review must be brought promptly and within three months. In judicial review, a remedy can still be denied to the applicant who establishes a substantive case. As the Law Commission made clear in its Report Administrative Law: Judicial Review and Statutory Appeals, “[j]udicial review often involves values and policy interests, which must be balanced against and may transcend the individual interests, which are normally the subject of litigation between private citizens” (Law Com. No. 226, para. 2.1).

The Contact of Public and Private Law

1923 ◽  
Vol 1 (3) ◽  
pp. 255-260
Author(s):  
Frederick Pollock
Keyword(s):  
Public Opinion ◽  
Public Law ◽  
Private Law ◽  
Public Attention ◽  
Public And Private ◽  
The Public ◽  
Private Rights ◽  
Definition Of ◽  
Clear Statement ◽  
Better Than

Looking for a definition of my subject, I find in my learned and lamented friend Professor Dicey's introduction to the second edition of his Law and Public Opinion in England, written in 1914, a sentence which will serve better than any definition of my own. “Since 1859”—the date of Mill's Essay on Liberty—“ almost every event which has happened has diverted public attention to the extreme difficulty, not to say the impossibility, of drawing a rigid distinction between actions which merely concern a man himself and actions which also concern society.” That is a clear statement in untechnical terms of the facts underlying the formal distinction between Public and Private Law, and of the fact that the relations of the two classes of actions and of the rules of law dealing with them have become in our own time, and are still becoming, more and more intimate and complex. It has more than once been observed of late that Public Law is encroaching on Private Law. Perhaps it has not been sufficiently noted that this process by no means obliterates the distinction between them, but on the contrary makes it all the more needful to bear it in mind. Confusion and trouble must arise when private rights arising out of legal or administrative rules established with a primary view to the public weal are treated as if they were matters of merely private interest, and when the framers or administrators of measures designed for the public good ignore the various ways in which private rights will be affected.

scholarly journals Prawo administracyjne prywatne. Propozycja nowego terminu w siatce pojęciowej polskiego prawa administracyjnego

2018 ◽  
Vol 114 ◽  
pp. 149-165
Author(s):  
Witold Małecki
Keyword(s):  
Public Administration ◽  
Public Procurement ◽  
Legal Framework ◽  
Legal Regulation ◽  
Administrative Law ◽  
Public Law ◽  
Private Law ◽  
Protective Measures ◽  
Public And Private ◽  
The Public

PRIVATE ADMINISTRATIVE LAW. THE PROPOSAL OF A NEWDistinction of the set of norms called ,,private administrative law” is conditioned by the recognition that the theorem on the public-law affiliation of administrative law is of typological relevance, not of classification relevance — in every branch of law also in administrative law it is possible to distinguish, in various proportions, norms of public and private law. The norms of private administrative law set the legal framework for public administration to use forms of activity that traditionally belong to private law in a way that prevents “escape to private law”, fusing private-law forms of activity and public-law protective measures. Public procurement law is presented as a model area of legal regulation within the scope of private administrative law.

scholarly journals The English Children and Families Act 2014

2015 ◽  
Vol 46 (3) ◽  
pp. 627 ◽  
Author(s):  
Andrew Bainham ◽  
Stephen Gilmore
Keyword(s):  
Child Protection ◽  
Public Law ◽  
Private Law ◽  
Children And Families ◽  
Adoptive Families ◽  
Public And Private ◽  
The Public ◽  
English Child ◽  
The Family ◽  
Rights Issues

Parts I and II of the Children and Families Act 2014 may appear to make little change to English child law, largely amending existing statutes with provisions of a procedural and evidential flavour. Yet, as this article explains, it is deeply ideological legislation with roots in the Narey Report on adoption and the Family Justice Review. The article examines the background to the legislation and shows how, in the private law, statutory language was used to convey an "official" message concerning the importance of both separating parents remaining "involved" in their children’s lives. This resulted in enactment of a presumption of parental involvement in court decision making, and a more neutral "child arrangements order", replacing the supposed polarising duality of "residence" and "contact" orders with little more than a change of terminology and the disadvantage of greater complexity. The ideology underpinning the public law provisions is to encourage adoption by speeding up the process, getting children through care proceedings as quickly as possible and into adoptive families.  This thinking may appear to clash with recent jurisprudence of the higher courts which has emphasised that adoption is a "last resort" in child protection, and that significant human rights issues arise. The analysis highlights a key question, cutting across the public and private law provisions, namely whether the 2014 Act dilutes English law's long-standing commitment to the paramountcy of child welfare.

Lotka’s law and author productivity pattern of research in law discipline

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Archana Sahu ◽  
Puspanjali Jena
Keyword(s):  
Open Access ◽  
Public Law ◽  
Private Law ◽  
Chi Square ◽  
Public And Private ◽  
Content Type ◽  
The Public ◽  
Significant Difference ◽  
Chi Square Test ◽  
Lotka’S Law

Purpose This study aims to analyze the productivity patterns of authors using law literature indexed in Directory of Open Access Journals (DOAJ) from 2016 to 2020 based on Lotka’s law. Lotka’s law of scientific productivity provides a platform for studying the variation between the actual and expected authors’ productivity patterns in a subject area over a specified period. Design/methodology/approach This study covers 3,334 open access journal articles in law subject. The law journals are subdivided into two basic divisions, namely, public law and private law. This paper focuses on the journal-wise distribution of publications, subject-wise distribution of publications, annual growth rate (AGR) as well as compound AGR and applicability of Lotka’s law in both public and private law by applying the least square method followed by Pao and doing the K-S goodness-of-fit test. Student’s t-test and chi-square test have been applied to verify the significant difference between the public law and the private law literature. Findings There is no significant difference between the public law and private law publications on their publications per issue. The chi-square test showed that there is no significant difference between the year-wise publications in public law and private law. The authorship productivity in public law differs from the distribution of Lotka’s inverse square law, whereas it follows Lotka’s law in the case of private law. Research limitations/implications This study is based on the articles published in open access English language journals which are indexed in the DOAJ. Originality/value This study will be useful to know the authorship productivity pattern of law literature for both public and private law individually.

scholarly journals Virtual Origins of Public Law

Lex Russica ◽  
2021 ◽  
pp. 9-22
Author(s):  
I. A. Isaev
Keyword(s):  
Public Space ◽  
Legal Regulation ◽  
Public Law ◽  
The State ◽  
The Political ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
Political Landscapes ◽  
Private Individual

The paper analyzes the main processes that gave rise to such a phenomenon as “public law”. The problem of public law is one of the fundamental problems of jurisprudence. A classical dichotomy of public and private law will never lose its significance, and the search for their harmonious interaction only heightens the interest of thinkers around the world in this issue. We should agree that addressing such issues is always secondto-none, as it gives grounds for the development of the best legal regulation acceptable for a particular society. The very notion of “publicness” has gone a long way to finally gaining a foothold in the political and legal lexicon. In the Digestas of Justinian, the famous Roman jurist Ulpian writes: “Public law, which (refers) to the position of the Roman state, private law, which (refers) to the benefit of individuals; there is the useful for the society and the useful for a private individual. Public law includes the sacreds (sacra), the ministry of priests, the position of magistrates” (D.1.1.1.2). Thus, from the ancient Roman forum through medieval corporations to the political parties of modern times, the public space was certainly controlled by the state in some way or another. It was the intervention of the state in the private sphere that determined the nature of “public” in general and public law in particular. These processes have defined both modern political landscapes and the system of public legal institutions. Although, to a large extent, the motivations that affected the formation of public law were dogmatic, formal and virtual, or imaginary in nature, their influence adopted quite real features and led to practical political and legal consequences.

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