scholarly journals Jurisdiction, Illegality and Fault: An Unholy Trinity

2019 ◽  
Vol 16 (1) ◽  
pp. 69-100
Author(s):  
Roderick A. Macdonald
Keyword(s):  
Public Law ◽  
Corrective Justice ◽  
Risk Allocation ◽  
Private Law ◽  
Public And Private ◽  
Statutory Duty ◽  
Policy Conflicts ◽  
History Of ◽  
Per Se ◽  
The Relationship

The relationship between fault and ultra vires is one of the most difficult aspects of the law of Crown Liability. It sets clearly into relief the policy conflicts which arise when private law risk allocation regimes (the adversarial adjudicative imposition of liability rules grounded in a concept of corrective justice) are invoked to police the functioning of public law risk allocation regimes (the allocation through various non-adjudicative procedures of the benefit and burden according to a variety of conceptions of distributive justice). The Crown Liability Act and article 94 of the Code of Civil Procedure both incorporate as against the Crown rules of private law delictual behaviour which were originally developed for regulating activity between private parties as such. They, therefore, compel courts to determine whether jurisdictional error per se constitutes fault. The history of twentieth century attempts to reconcile ultra vires and fault is a history of the judicial search for boundary criteria between realms of public and private law. These boundaries have been, among others, a good faith test, functional criteria such as judicial and legislative immunity or immunity for planning functions, the notion of breach of statutory duty, and so on. Each of these attempts has ultimately be repulsed by the desire of litigants to recover against the Crown on the widest possible basis. Modern theories of jurisdiction being so all-embracing and modern conceptions of fault being so comprehensive, the courts are constantly being asked to develop an absolute equation between fault and ultra vires. The paper concludes by exploring several options for harmonizing private law and public law risk allocation regimes. It recommends a restructuring of the Crown Liability Act so as (i) to permit recovery on a variety of no fault bases, (ii) to permit recovery even when intra vires acts have been undertaken (if these cause significant or disproportional damage) and (iii) to permit the immunization of certain governmental functions from private law liability even when the decisions in question have been taken in an ultra vires fashion.

Preventive Duties under Private and Public Law scilicet spei permultum sed rei paulum

2020 ◽  
Vol 2 (103) ◽  
pp. 51-71
Author(s):  
Dariusz Fuchs
Keyword(s):  
Contract Law ◽  
Legal Aspects ◽  
Public Law ◽  
Civil Code ◽  
Insurance Contract ◽  
Private Law ◽  
Public And Private ◽  
Private And Public ◽  
European Insurance ◽  
The Relationship

The article aims at discussing preventive obligations incumbent on the insurer and other entities of the insurance relationship, in particular on the policyholder. The analysis takes into account comparative legal aspects, and therefore refers to the Principles of European Insurance Contract Law (PEICL). The author emphasizes the evolution of the provision of Article 826 of the Civil Code, which has changed his views on the scope of the preventive obligation under insurance contract. He points out the possible differences of interpretation as to the scope of the prevention as well as the issue of the insurer's reimbursement of costs due to its implementation by the policyholder. What is more, the relationship between public and private law standards has been presented, with a particular focus on Article 826 of the Civil Code. Finally, de lege ferenda conclusions have been presented.

Private and Public Law

2020 ◽  
pp. 574-592
Author(s):  
Thomas W. Merrill
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Law ◽  
General Criterion ◽  
The Public ◽  
Private Ordering ◽  
Public Rights ◽  
Private And Public ◽  
The Relationship ◽  
Derivatives Of

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

The Right of Philosophy and the Facts of History: Foucault, Derrida, Descartes

2016 ◽  
Author(s):  
Gabriel Rockhill
Keyword(s):  
Social Sciences ◽  
The Social ◽  
History Of ◽  
Per Se ◽  
The Right ◽  
The Relationship

This chapter proposes a counter-history of a seminal debate in the transition from structuralism to post-structuralism. It calls into question the widespread assumption that Derrida rejects Foucault’s structuralist stranglehold by demonstrating that the meaning of a text always remains open. Through a meticulous examination of their respective historical paradigms, methodological orientations and hermeneutic parameters, it argues that Derrida’s critique of his former professor is, at the level of theoretical practice, a call to return to order. The ultimate conclusion is that the Foucault-Derrida debate has much less to do with Descartes’ text per se, than with the relationship between the traditional tasks of philosophy and the meta-theoretical reconfiguration of philosophic practice via the methods of the social sciences.

The changing landscape of local authority commissioning

2020 ◽  
pp. 177-196
Author(s):  
Dave Ayre
Keyword(s):  
Academic Research ◽  
The European Union ◽  
Public And Private ◽  
The United Kingdom ◽  
Health And Social Care ◽  
History Of ◽  
The Uk ◽  
Relationship Of ◽  
The Relationship

This chapter assesses the history of the relationship between public and private sectors and the extent to which the political and regulatory environment of governments and institutions such as the European Union (EU) can help or hinder the efforts of public bodies in seeking to deliver services that determine the health and quality of life for communities. The relationship of public and private sectors in the United Kingdom (UK) and the commissioning, procurement, and development of public–private partnerships is driven by the prevailing political and economic environment. However, rigorous academic research on the benefits of partnering to organisations, societies and between countries is limited. Evidence is needed to fill the policy vacuum. A bolder approach is necessary to work with public and private sectors to develop and implement successful partnering alternatives to the outsourcing of public services. The growing catalogue of outsourcing failures in construction, probation, rail franchising, health, and social care is creating an appetite for change, and the exit of the UK from the EU provides the opportunity.

Introduction

2021 ◽  
pp. 1-44
Author(s):  
Aaron J. Kachuck
Keyword(s):  
Literary Criticism ◽  
Roman Law ◽  
Roman Religion ◽  
Public And Private ◽  
Literature And Philosophy ◽  
Ancient Society ◽  
Roman Culture ◽  
History Of ◽  
The Individual ◽  
The Relationship

This Introduction presents a study of Latin vocabulary for solitude as background for replacing bipartite divisions of Roman life (e.g., otium and negotium, “public” and “private”) with a tripartite model comprising public, private, and solitary spheres. It outlines this model’s applicability to Greek literature and philosophy, Roman religion, and Roman law, leading to a discussion of the Roman bedroom (cubiculum) and the solitary reading and writing to which it could be home. Reviewing the history of scholarship on Roman society, religion, and literature from antiquity through the present, it demonstrates how and why solitude has been written out of the study of Roman culture, and how the problem of solitude relates to the question of the individual in ancient society. Finally, it explores the relationship of literature to Rome’s solitary sphere in the age of Virgil, addressing problems of periodization, the relationship between literary criticism, philosophy, and literary production.

The changing face of private law: doctrinal categories and the regulatory state

Legal Studies ◽  
1982 ◽  
Vol 2 (3) ◽  
pp. 257-268 ◽  
Author(s):  
N. E. Simmonds
Keyword(s):  
Legal System ◽  
Public Law ◽  
Private Law ◽  
Regulatory State ◽  
Public And Private ◽  
University Curricula

Legal scholars over the last 25 years or so have experienced a growing sense of dissatisfaction with the traditional classifications that segment university curricula and legal textbooks. Contract and tort, for instance, are felt to be not so different after all. The intimate historical links between the tort of negligence and the action of assumpsit may be seen as reflecting the realitics more truly than the later doctrinal separation of voluntarily and involuntarily incurred obligations. The growing impact of public law on the exercise of privatc rights, and the interweaving of public and private law that runs through an evcn greater portion of the legal system, cause still more fundamental doubts.

The Relationship between the Korean Dawn Prayer Meeting and Spirituality

2019 ◽  
Vol 49 (2) ◽  
pp. 206-219
Author(s):  
Jonghyun Kim
Keyword(s):  
Christian Spirituality ◽  
Public And Private ◽  
The Public ◽  
Individual Spirituality ◽  
The World ◽  
History Of ◽  
Dawn Prayer Meeting ◽  
The Individual ◽  
The Relationship

This article analyzes the formative power of the Korean dawn prayer service to better understand the public and private dimensions of Christian spirituality. It explores the origin of the dawn prayer in the history of Korean Protestantism, and examines an example from a particular church. On the basis of this exploration, it is argued that the dawn prayer service should not be understood as an instrument to strengthen individual spirituality, but rather as a place to participate in God’s redemptive work to and for the world. Both the individual and communal aspects of dawn prayer practice are important, but I will argue that current Korean practice leans too much toward the individual.

Part I General Principles, 3 International Law as it Affects Private Law Conventions Governing Cross-Border Commercial Transactions

2015 ◽  
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Commercial Law ◽  
Typical Structure ◽  
The Public ◽  
State Security ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

Chapter 3, after describing general principles of international law and the relationship between international law and domestic law, focuses on the hitherto neglected subject of private commercial law conventions. Textbooks on international law invariably focus on public law treaties. By contrast this chapter addresses issues relating to private law conventions. It goes through the typical structure of a private law convention, the interpretation of conventions and the treatment of errors, and the enforcement of private conventional rights against States. The subject of private law conventions and public law has become of increasing importance with the appearance in several private law instruments of provisions of a public law nature designed, for example, to ensure that creditors’ rights are not enforced in a manner that adversely affects the public interest or State security. Reservations and declarations are also discussed, together with the subject of conflicts between conventions.

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