Bernard Stirn
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0050
- Subject:
- Law, Legal History
This chapter examines the French Conseil d'Etat and French administrative law, arguing that whilst the Conseil d'Etat is in some ways a quintessentially French institution, there are some ways in ...
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This chapter examines the French Conseil d'Etat and French administrative law, arguing that whilst the Conseil d'Etat is in some ways a quintessentially French institution, there are some ways in which it shares the features of the common law and its institution, the importance of the case law, the authority of its judgments, the position of its members, and it's place within the Constitutional arrangements.Less
This chapter examines the French Conseil d'Etat and French administrative law, arguing that whilst the Conseil d'Etat is in some ways a quintessentially French institution, there are some ways in which it shares the features of the common law and its institution, the importance of the case law, the authority of its judgments, the position of its members, and it's place within the Constitutional arrangements.
J. W. F. Allison
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298656
- eISBN:
- 9780191710735
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298656.003.0007
- Subject:
- Law, Comparative Law, Legal History
Contradictory institutional demands for both judicial independence and expertise in administrative disputes are related to theoretical and everyday requirements of objectivity and subjectivity. This ...
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Contradictory institutional demands for both judicial independence and expertise in administrative disputes are related to theoretical and everyday requirements of objectivity and subjectivity. This chapter describes the development of the radical French separation of powers — in reaction to the roles of the pre-Revolutionary Parlements and in response to the theories of Montesquieu and Rousseau — and the consequent assumption of judicial functions by the Consei d'Etat within the French administration. It shows how the judicialization of their exercise enabled the Conseil d'Etat broadly to satisfy those demands, and thus help entrench the French distinction between public- and private-law courts. The chapter contrasts the English emphasis on judicial independence, identified with the abolition of prerogative courts and the revolutionary settlement, and confirmed by Blackstone amongst others. The 20th-century Hewart—Robson debate on administrative tribunals, their subordination to the supervisory jurisdiction of the ordinary courts after the Donoughmore Inquiry, and the relatively limited administrative expertise of judges on the Crown Office List, it explains as indicative of an enduring problem — securing both judicial independence and adequate judicial expertise — for an institutional English distinction between public- and private-law courts.Less
Contradictory institutional demands for both judicial independence and expertise in administrative disputes are related to theoretical and everyday requirements of objectivity and subjectivity. This chapter describes the development of the radical French separation of powers — in reaction to the roles of the pre-Revolutionary Parlements and in response to the theories of Montesquieu and Rousseau — and the consequent assumption of judicial functions by the Consei d'Etat within the French administration. It shows how the judicialization of their exercise enabled the Conseil d'Etat broadly to satisfy those demands, and thus help entrench the French distinction between public- and private-law courts. The chapter contrasts the English emphasis on judicial independence, identified with the abolition of prerogative courts and the revolutionary settlement, and confirmed by Blackstone amongst others. The 20th-century Hewart—Robson debate on administrative tribunals, their subordination to the supervisory jurisdiction of the ordinary courts after the Donoughmore Inquiry, and the relatively limited administrative expertise of judges on the Crown Office List, it explains as indicative of an enduring problem — securing both judicial independence and adequate judicial expertise — for an institutional English distinction between public- and private-law courts.
J.W.F. Allison
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298656
- eISBN:
- 9780191710735
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298656.001.0001
- Subject:
- Law, Comparative Law, Legal History
The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty ...
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The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty about the judicial role. It has provoked a continuing debate on the desirability of distinguishing between basic categories of public and private law. In this debate, a historical and comparative perspective has been lacking. By way of a comparative historical jurisprudence and a Weberian method, this book introduces such a perspective from which to view the problematic English distinction between public and private law as a legal transplant from the Continental civil law to the English common law. It provides a novel application of that method to the distinction's contrasting development in England and France. It compares the relatively recent emergence of a significant English distinction with the entrenchment of the traditional and influential French distinction demarcating the leading system of droit administratif developed by the Conseil d'Etat. Emphasising systemic interconnections between theory, institutions, and judicial procedure in the development of legal system, it explains how persistent problems of English public law are related to fundamental differences between the English and French legal and political traditions — differences in their conception of the state administration, their approach to law, their separation of powers, and their judicial procedures in public law cases. The book shows how a satisfactory distinction between public and private law depends on a particular legal and political context, a context that was evident in late 19th-century France and lacking in 20th-century England. It concludes by identifying the far-reaching theoretical, institutional, and procedural changes required to accommodate English public law.Less
The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty about the judicial role. It has provoked a continuing debate on the desirability of distinguishing between basic categories of public and private law. In this debate, a historical and comparative perspective has been lacking. By way of a comparative historical jurisprudence and a Weberian method, this book introduces such a perspective from which to view the problematic English distinction between public and private law as a legal transplant from the Continental civil law to the English common law. It provides a novel application of that method to the distinction's contrasting development in England and France. It compares the relatively recent emergence of a significant English distinction with the entrenchment of the traditional and influential French distinction demarcating the leading system of droit administratif developed by the Conseil d'Etat. Emphasising systemic interconnections between theory, institutions, and judicial procedure in the development of legal system, it explains how persistent problems of English public law are related to fundamental differences between the English and French legal and political traditions — differences in their conception of the state administration, their approach to law, their separation of powers, and their judicial procedures in public law cases. The book shows how a satisfactory distinction between public and private law depends on a particular legal and political context, a context that was evident in late 19th-century France and lacking in 20th-century England. It concludes by identifying the far-reaching theoretical, institutional, and procedural changes required to accommodate English public law.
J. W. F. Allison
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298656
- eISBN:
- 9780191710735
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298656.003.0008
- Subject:
- Law, Comparative Law, Legal History
A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory ...
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A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.Less
A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.
Aurélie Bretonneau, Samuel Dahan, and Duncan Fairgrieve
- Published in print:
- 2015
- Published Online:
- October 2015
- ISBN:
- 9780198735335
- eISBN:
- 9780191802096
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198735335.003.0014
- Subject:
- Law, Comparative Law, Constitutional and Administrative Law
This chapter examines ‘how’ and ‘why’ comparative law developed at the Conseil d’Etat. It shows that the growing use of comparative law does not depend solely on subjective factors such as the ...
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This chapter examines ‘how’ and ‘why’ comparative law developed at the Conseil d’Etat. It shows that the growing use of comparative law does not depend solely on subjective factors such as the willingness of judges to use it; rather, it relies on a method, which, although still in development, may already be giving rise to a new form of judicial creative process.Less
This chapter examines ‘how’ and ‘why’ comparative law developed at the Conseil d’Etat. It shows that the growing use of comparative law does not depend solely on subjective factors such as the willingness of judges to use it; rather, it relies on a method, which, although still in development, may already be giving rise to a new form of judicial creative process.
Athanasios Psygkas
- Published in print:
- 2017
- Published Online:
- November 2017
- ISBN:
- 9780190632762
- eISBN:
- 9780190632793
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190632762.003.0003
- Subject:
- Political Science, International Relations and Politics
This chapter presents the first country case. The French example is illuminating because the EU procedural mandates were transposed into a policymaking environment traditionally described as ...
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This chapter presents the first country case. The French example is illuminating because the EU procedural mandates were transposed into a policymaking environment traditionally described as “statist” and suspicious toward interest groups. This pattern has its origins in the French Revolution and the “republican” perception of the state which would squarely oppose the deliberative-participatory model of chapter 1. Chapter 3 examines how the EU push for new mechanisms of public accountability has translated into institutional practice in the electronic communications sector. It situates these developments in the historical context of the evolution of the French administrative model and state-society relations. It also discusses whether these new processes may gradually give rise to a different perception of the administrative state, one that will be more open to participatory influences in all sectors of administrative policymaking.Less
This chapter presents the first country case. The French example is illuminating because the EU procedural mandates were transposed into a policymaking environment traditionally described as “statist” and suspicious toward interest groups. This pattern has its origins in the French Revolution and the “republican” perception of the state which would squarely oppose the deliberative-participatory model of chapter 1. Chapter 3 examines how the EU push for new mechanisms of public accountability has translated into institutional practice in the electronic communications sector. It situates these developments in the historical context of the evolution of the French administrative model and state-society relations. It also discusses whether these new processes may gradually give rise to a different perception of the administrative state, one that will be more open to participatory influences in all sectors of administrative policymaking.
Jean Marc Sauvé
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0021
- Subject:
- Law, Legal History
This chapter deals with how the Council acts as both legal advisor of the government and highest administrative judge. It identifies the key issues and changes that lie before the French ...
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This chapter deals with how the Council acts as both legal advisor of the government and highest administrative judge. It identifies the key issues and changes that lie before the French administrative justice system in the years ahead. It deals with problems such as how to address the massive increase in the number of claims; how to reconcile determining an ever increasing number of claims and retaining high quality standards; how to make the Council of State and administrative courts more effective; and what approach they should follow in order to fulfill adequately their mission in the framework of European law.Less
This chapter deals with how the Council acts as both legal advisor of the government and highest administrative judge. It identifies the key issues and changes that lie before the French administrative justice system in the years ahead. It deals with problems such as how to address the massive increase in the number of claims; how to reconcile determining an ever increasing number of claims and retaining high quality standards; how to make the Council of State and administrative courts more effective; and what approach they should follow in order to fulfill adequately their mission in the framework of European law.
Michal Bobek
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199680382
- eISBN:
- 9780191760280
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199680382.003.0007
- Subject:
- Law, Constitutional and Administrative Law, Comparative Law
Assessing French theory and practice of the use of comparative arguments by courts, in particular by the three French highest courts, the Conseil constitutionnel, the Cour de cassation, and the ...
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Assessing French theory and practice of the use of comparative arguments by courts, in particular by the three French highest courts, the Conseil constitutionnel, the Cour de cassation, and the Conseil d´Etat, the chapter suggests that in spite of not being visible on the surface, there is comparative exchange going on. For reasons peculiar to the legal and judicial tradition, such an exchange does, however, take on particular form. First, it is not openly displayed. Comparative reasoning in courts is primarily used as a tool of internal debates, not as an instrument for external justification. Secondly, because of the historical constitutional balance within the legal system, comparative law has traditionally been seen as a matter for the legislator and legal scholarship, not for the courts.Less
Assessing French theory and practice of the use of comparative arguments by courts, in particular by the three French highest courts, the Conseil constitutionnel, the Cour de cassation, and the Conseil d´Etat, the chapter suggests that in spite of not being visible on the surface, there is comparative exchange going on. For reasons peculiar to the legal and judicial tradition, such an exchange does, however, take on particular form. First, it is not openly displayed. Comparative reasoning in courts is primarily used as a tool of internal debates, not as an instrument for external justification. Secondly, because of the historical constitutional balance within the legal system, comparative law has traditionally been seen as a matter for the legislator and legal scholarship, not for the courts.
