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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 Method for Transplants

A Method for Transplants

(p.4) 2 A Method for Transplants
A Continental Distinction in the Common Law

J. W. F. Allison

Oxford University Press

The traditional insignificance of the distinction between public and private law in England is particularly evident in the intertwined history of public and private law liability, and the non-exclusivity of the original prerogative remedies in administrative disputes. This chapter describes the significance recently given to the English distinction as an outcome of transplantation, principally through the judicial determinations in O'Reilly v Mackman on the exclusivity of the reformed judicial review procedure in public law. The hazards of legal transplantation identified by Montesquieu and later debated by Kahn–Freund and Watson are illustrated in Montesquieu's own adoption of the English separation of powers, Dicey's rejection of droit administratif, and the judicial transplantation in O'Reilly v Mackman. The chapter attributes those hazards to neglect of historical and political context, and therefore advocates a comparative historical jurisprudence that addresses the various criticisms of its now-discredited theories of legal evolution, principally by explaining the methodological advantages of using a Weberian model or ideal type to require careful and self-critical consideration of context.

Keywords:   prerogative remedies, liability, O'Reilly v Mackman, legal transplant, Montesquieu, Watson, Kahn–Freund, historical jurisprudence, Weber, ideal type

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