An Introduction to Administrative Law

By Peter Cane | Go to book overview
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So far we have been concerned with rules of 'public law'. In this Part we will consider the way in which rules of private law can be used to challenge and control the activities of governmental bodies and other bodies performing public functions and, in particular, the way in which these rules are modified in their application to such bodies.

There is a strong tradition in English law of seeing private law rules as the paradigm governing not only relations between citizens but also relations between citizens and the government. According to the 19th century constitutional lawyer, A.V. Dicey, the 'rule of law' required that governmental officials should be answerable for their actions to the same extent and according to the same rules as private individuals. It is clear that this approach is inadequate as a complete theory of governmental liability if for no other reason than that there are grounds of public law illegality which have no application or relevance to the conduct of private individuals. But we might defend Dicey from further criticism by saying that his theory primarily concerned the application to the activities of government officials of private law rules of liability for loss or damage caused.

At the time Dicey was writing this view of the liability of governmental bodies was not entirely implausible, and so influential has Dicey's approach been that it is probably true to say that there is a basic principle in English law concerning the liability of public bodies that rules of private law liability apply to the activities of bodies and officials exercising public functions in the same way and to the same extent as they apply to the activities of private citizens, unless some good reason can be found why they should not. It seems clear, as we will see later, that private law rules are not always appropriate in an unqualified form as controls on the exercise of public functions. But it may well be that the best starting-point is a presumption that they do apply, leaving it to the defendant to adduce some good reason why they should not. In some instances, the legitimate demands of public policy may require that


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An Introduction to Administrative Law


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