A Source-Book on French Law: Public Law--Constitutional and Administrative Law : Private Law--Structure, Contract

By Kahn-Freund; Lévy et al. | Go to book overview
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2. Administrative Law

The extracts which follow largely speak for themselves. They are designed to explain why, in France, the branch of public law known as droit administratif is entirely separate from private law, with its own sources, its own principles, its own courts and procedure entailing different powers, and with its own functions and area of activity. English lawyers tend to treat 'administrative law' as if it dealt mainly, or even wholly, with the judicial review of administrative action. For the French, droit administratif covers the whole structure of central and local administration, the general theory of administrative acts and functions, public property and public works, and such topics as compulsory purchase. They have a separate term -- and even separate textbooks -- for litigation, under the heading 'le contentieux administratif. And this covers two broad categories: that of judicial review (for which the general term is 'recours pour excès de pouvoir') and that concerned with the contractual or delictual obligations of the public power ('le plein contentieux').

At the borders, of course, it may not be easy to see whether an issue involves matters of public or of private law. A similar question may arise in England, but it is only in fairly recent years that the answer has acquired acute importance, and then, typically enough, at the level of remedies. The effect of the House of Lords decision of 1983 in the case of O'Reilly v. Mackman ([ 1983] 2 A.C. 237) is described by a leading treatise in the following terms: 'Now, however, itis ordained that public and private law procedures are mutually exclusive; and since the dividing line between them is impossible to draw with certainty, a great deal of fruitless litigation has resulted and will probably continue . . . It has produced great uncertainty, which seems likely to continue, as to the boundary between public and private law, since these terms have no clear or settled meaning.'1

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1
H. W. R. Wade, Administrative Law, Oxford, 1988, pp. 677-8. See Carol Harlow, '"Public" and "Private" Law: Definition without Distinction?' 43 MLR 241 ( 1980); Geoffrey Samuel, "Public and Private Law: A Private Lawyer's Response", 46 MLR 588 ( 1983).

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