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J.W.F. Allison, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law. Clarendon Press, Oxford 1996. XVI + 270 p.

J.W.F. Allison, A Continental Distinction in the Common Law: A Historical and Comparative... LEGA art.no. br9801 PIPS.no. 159049 Please indicate author’s corrections in blue , setting errors in red 214 COMPTES RENDUS hoogte ± 17 cm. KB/zetten/060198/000000 J.W.F. A LLISON , A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law. Clarendon Press, Oxford 1996. XVI + 270 p. This book, based on doctoral research conducted under the supervision of Professor Peter Stein, is devoted to a topic that is both important and intricate. The author tackles his subject from several angles. There is, to begin with, the doctrinal strand. For the Romans the distinction between public and private law was elementary, but it was lost in medieval times and slowly rediscovered under the influence of the School of Bologna. The English common law, which escaped this impact, continued along earlier medieval lines and ignored the public–private dichotomy. This state of affairs continued well into the nineteenth century, when it was expounded and even glorified by A.V. Dicey. Things changed in our own century and public law is now a distinct field of English law, even though echoes of the older attitude could still be overheard not so long ago (Lord Green in 1945). The second strand in Allison’s book concerns the organization of the admi- nistrative courts and tribunals in England and France in the nineteenth and twentieth centuries (with due attention for seventeenth- and eighteenth-century antecedents). Here the reader will find an excellent historical-comparative presentation of the rise of the Conseil d’Etat in France and the administrative tribunals in England. The author shows how Dicey’s extreme thesis – denial and rejection of an English administrative law and of English administrative courts as distinct from the common law and its courts – was overtaken by events. This started already in Dicey’s own day, as was somewhat grud- gingly admitted by the great constitutionalist himself 1 . It has now reached the point where Lord Denning could write, in 1983, that ‘in the last few years we have thrown over Dicey and gone back to Justinian’ (quoted by Allison on p. 12). The third strand consists of a most careful analysis of the French and English procedures in their respective courts and tribunals. The author shows in great detail how the continental tradition of the inquisitorial forms of process has survived in modern France and how the English tribunals have great problems trying to apply the old adversarial techniques in present- day administrative tribunals. The author pays considerable attention to the procedural reforms of the late 1970s and early 1980s and argues that the private–public distinction is a legal transplant which must be assessed by reference to its historical and political context and he warns against the ‘hazards of ill-considered transplantation’. As he puts it: ‘The administrative tribunals lacked the required independence; the ordinary judges on the Crown Office List lack the required expertise’. This thoughtful and carefully written book 2 , in which constitutional law and the underlying political theories receive proper attention, will prove invaluable to any legal historian bold enough to study the intricate problem of the past and present distinction between private and public law in England and in France. Few jurists are as familiar as Allison with both the English and the French scene and able to enter with equal ease into the worlds of Duguit and Dicey. Ghent R.C. van Caenegem 1. In the eighth edition of his Law of the Constitution he wrote that it was ‘at least conceivable that modern England would be benefited by the extension of official law’ (p. XLII, quoted here p. 21). 2. The author deals lucidly with the most abstruse topics and only rarely lapses into obscure language, such as the following phrase on p. 137: ‘whether the viewpoint of the observed or the observer is adopted matters partly because of the proximity accordingly required of the observer to the situation of the observed’. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Legal History Review / Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit Brill

J.W.F. Allison, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law. Clarendon Press, Oxford 1996. XVI + 270 p.

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Publisher
Brill
Copyright
© 1998 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0040-7585
eISSN
1571-8190
DOI
10.1163/15718199819682735
Publisher site
See Article on Publisher Site

Abstract

LEGA art.no. br9801 PIPS.no. 159049 Please indicate author’s corrections in blue , setting errors in red 214 COMPTES RENDUS hoogte ± 17 cm. KB/zetten/060198/000000 J.W.F. A LLISON , A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law. Clarendon Press, Oxford 1996. XVI + 270 p. This book, based on doctoral research conducted under the supervision of Professor Peter Stein, is devoted to a topic that is both important and intricate. The author tackles his subject from several angles. There is, to begin with, the doctrinal strand. For the Romans the distinction between public and private law was elementary, but it was lost in medieval times and slowly rediscovered under the influence of the School of Bologna. The English common law, which escaped this impact, continued along earlier medieval lines and ignored the public–private dichotomy. This state of affairs continued well into the nineteenth century, when it was expounded and even glorified by A.V. Dicey. Things changed in our own century and public law is now a distinct field of English law, even though echoes of the older attitude could still be overheard not so long ago (Lord Green in 1945). The second strand in Allison’s book concerns the organization of the admi- nistrative courts and tribunals in England and France in the nineteenth and twentieth centuries (with due attention for seventeenth- and eighteenth-century antecedents). Here the reader will find an excellent historical-comparative presentation of the rise of the Conseil d’Etat in France and the administrative tribunals in England. The author shows how Dicey’s extreme thesis – denial and rejection of an English administrative law and of English administrative courts as distinct from the common law and its courts – was overtaken by events. This started already in Dicey’s own day, as was somewhat grud- gingly admitted by the great constitutionalist himself 1 . It has now reached the point where Lord Denning could write, in 1983, that ‘in the last few years we have thrown over Dicey and gone back to Justinian’ (quoted by Allison on p. 12). The third strand consists of a most careful analysis of the French and English procedures in their respective courts and tribunals. The author shows in great detail how the continental tradition of the inquisitorial forms of process has survived in modern France and how the English tribunals have great problems trying to apply the old adversarial techniques in present- day administrative tribunals. The author pays considerable attention to the procedural reforms of the late 1970s and early 1980s and argues that the private–public distinction is a legal transplant which must be assessed by reference to its historical and political context and he warns against the ‘hazards of ill-considered transplantation’. As he puts it: ‘The administrative tribunals lacked the required independence; the ordinary judges on the Crown Office List lack the required expertise’. This thoughtful and carefully written book 2 , in which constitutional law and the underlying political theories receive proper attention, will prove invaluable to any legal historian bold enough to study the intricate problem of the past and present distinction between private and public law in England and in France. Few jurists are as familiar as Allison with both the English and the French scene and able to enter with equal ease into the worlds of Duguit and Dicey. Ghent R.C. van Caenegem 1. In the eighth edition of his Law of the Constitution he wrote that it was ‘at least conceivable that modern England would be benefited by the extension of official law’ (p. XLII, quoted here p. 21). 2. The author deals lucidly with the most abstruse topics and only rarely lapses into obscure language, such as the following phrase on p. 137: ‘whether the viewpoint of the observed or the observer is adopted matters partly because of the proximity accordingly required of the observer to the situation of the observed’.

Journal

The Legal History Review / Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du DroitBrill

Published: Jan 1, 1998

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