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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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Conclusions and Implications for English Law

Conclusions and Implications for English Law

(p.235) 11 Conclusions and Implications for English Law
A Continental Distinction in the Common Law

J. W. F. Allison

Oxford University Press

The provisional conclusions reached through application of this book's method to the English and French contexts invite supplementary and corrective research of other contexts. Central to those conclusions is a systemic relationship between a working distinction between public and private law and features of its legal and political context, expressed in the book's model or ideal type and elaborated upon in its chapters. This chapter explains implications of that relationship for English law — the hazards of the distinction's ill-considered transplantation and the need to retreat from the distinction and/or comprehensive reforms to accommodate it. It describes a partial retreat and considers comprehensive reforms, ranging from practical proposals by Lord Woolf and theoretical elaboration upon concepts of the state, monopoly, and power. It suggests that greater European legal and political integration or convergence through the use, inter alia, of proportionality or the ECJ's distinction between the vertical and horizontal effect of directives, facilitate the distinction's accommodation, but that its influence is uneven and thus insufficient to bring it about. A satisfactory separate system of English public law, it concludes, is still remote.

Keywords:   ideal type, public and private, transplantation, Woolf, state, monopoly, European integration, convergence, proportionality, vertical and horizontal effect

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