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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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French Approximations

French Approximations

(p.42) 4 French Approximations
A Continental Distinction in the Common Law

J. W. F. Allison

Oxford University Press

The medieval jurists on the Continent discussed the Roman distinction between public and private law but did not attribute it practical significance in a feudal setting to which it was unsuited for want of any approximations to a distinct state administration. This chapter shows how the distinction only acquired significance in France after pre- and post-Revolutionary administrative centralization, and related changes in the way the state and its executive power came to be conceived. Those changes were brought about, inter alia, through the work of Bodin, Montesquieu, and Rousseau and through post-Revolutionary liberal apprehension of administrative centralization expressed by Constant, the Doctrinaire liberals, and Tocqueville, amongst others. The 19th-century outcome was the attribution of qualities to the state administration that justified the special rules, institutions, and procedures of public law. By the time the conception of a distinct state administration had become blurred through the promotion of decentralization, the influence of Durkheim's social theory, the impact of Duguit's legal and political writings, and the proliferation of hybrid institutions neither clearly public or private, a fundamental public/private distinction was both widely accepted and deeply entrenched in the French legal and political tradition.

Keywords:   Montesquieu, Bodin, centralization, Rousseau, Constant, Doctrinaire liberals, Tocqueville, Durkheim, Duguit, hybrid institutions

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