“PUBLIC” AND “PRIVATE” LAW: DEFINITION WITHOUT DISTINCTION

Published date01 May 1980
DOIhttp://doi.org/10.1111/j.1468-2230.1980.tb01592.x
Date01 May 1980
THE
MODERN
LAW
REVIEW
Volume
43
May
1980
No.
3
PUBLIC
AND
PRIVATE
LAW: DEFINITION
WITHOUT DISTINCTION
When in England we talk about
public law,” we all know roughly
what we are talking about and this is normally enough for us.
We do not need to define the term more precisely because,
although we may sense in the common law
a
latent distinction
between the
public
and the
private,” we do not use these
terms as classificatory terms
of
art
in
the same way, for example,
as
we use the terms
contract,”
‘‘
tort
and
‘I
crime.” Nor do
legal consequences usually flow from the distinction.
Sometimes in conversation with our continental friends we sense
a
potential confusion. Drawing their inspiration from French
traditions, continental lawyers are apt to give “public law” the
highly specific meaning of “a body of wholly autonomous rules,
entirely separate from private law.” These autonomous rules
normally entail a separate administrative jurisdiction and, since
England possesses neither autonomous rules extraneous to the
common law nor
a
separate jurisdiction, we are sometimes said by
Europeans to possess no public 1aw.l But we are all well able to
unravel this semantic paradox and most of us are content to accept
the status quo.
A
minority, however, sees the absence of an overt, conceptual
distinction between
public
and
private
law as
a
major
deficiency.s These writers attribute to the absence the shortcomings
of English administrative law. This, they feel, in sharp contrast to
the systems of our more civilised civilian neighbours, will never add
Vedel,
Droit Administratif
(5th ed., 19731, pp. 57-58. And see Lord Mackenzle-
Stuart,
The European Communities and the Rule of Law
(1977), pp. 45-47.
a
See De Smith,
Judicial Review of Administrative Action
(3rd
ed., 1973), p.
5,
where the author
notes
that many foreign observers would call
our
administrative
tribunals, administrative courts. And
see
Robson,
Administrative Justice
(3rd
d.,
1951).
J
Mitchell,
‘‘
The
Causes an! Consequences of the Absence of a System of
Public
Law in the United Kingdom [1965] P.L.
95;
Nevi1 Johnson,
In
Search of the
Constitution
(19781, Chap.
5,
Law and the Polity.”
See
also Friedmann,
Lw in
a
Changing Society
(Pelican Edition, 1964), Part
11,
pp.
272
ef seq.
24
1
VOL.
43
(3)
1
242
THE
MODERN LAW REVIEW
[Vol.
43
up to that “developed system of administrative law” which our
judges fondly delude themselves that they have already ~reated.~
It is hardly surprising then, that those who deplore our so-called
system of public law should welcome the appearance of a line of
cases which seems to import into the common law the continental
public/private
classification.6 In this article
I
wish, however,
to criticise these and question their utility.
I
shall argue, first,
that the
public/private
distinction in the sense of an autono-
mous set of rules, is wholly incompatible with the English tradition
and is unlikely to contribute in any meaningful way to the
solution of the many problems which modern administrative law
has to overcome. Secondly,
I
shall argue that a jurisdictional
division between
public
and
‘‘
private
law cases is old-fashioned
and undesirable in principle.
1.
A
SUBSTANTIVE
MEANING:
THE
ARGUMENT FOR SPECIAL
RULES
Cases which use the
private/public
classification can be divided
into two categories: into the first class falls
a
group of cases
which concern liability; into the second, two cases which deal with
remedies in public law.
The first cases introduce t,he new distinction into the field of
tortious liability.
Anns
v.
Merton
L.B.C.
was an action against
a
local authority for negligence in the use of
a
statutory power
to inspect buildings and enforce building regulations.
A
block of
flats constructed on inadequate foundations subsequently cracked
and the flats became unsafe. The case law posed some problems for
the House of Lords because it seemed to entrench distinctions on
the one hand between omissions to act and actions and on the other
between statutory duties and statutory powers.‘ The argument pro-
ceeded on
a
preliminary point of law and the House
of
Lords de-
parted from the precedents by holding that liability was
a
possibility.
In
the course of his Ieading judgment Lord Wilberforce had this
to say
“I
do not think that
a
description of the council’s duty can
be based on the
neighbourhood
principle alone
. .
.
so
to base
it would be to neglect
an
essential factor which is that the local
authority is
a
public body, discharging functions under statute:
its powers and duties are definable in terms of public not
private law.”
This passage seems to contain an implicit reference to an earlier
dictum of Lord Diplock when, in the
Dorset
Yacht
case, he said:
.
.
.
over the past century the public law concept
of
ultra
vires
has replaced the civil law concept of negligence as the test of
4
Lord Denning
M.R.
in
Breen
v.
Amdgamated
Engineering Union
[I9711 2
Q.B.
175, 189, cited with approbation by de Srnit!:
loc.
cit.
above;
Lord
Diplock.
I’
Administrttlve Law: Judicial Review RerFwed [1974]
C.L.J.
233.
[
19781 P.L. 230, 236-237.
5
Garner,
6
[
19771 2
W.L.R.
1024.
7
East
Suffolk
Rivers Caichment Board
v.
Kent
119411
A.C.
74.
Public Law and Private Law
a
Atp. 1034

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