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This topical subject deals with the interface between private law and public law in common law systems from the perspectives of history, doctrine, theory and practice. It will explore the traditional absence of such a division in the common law, and the reasons for this, as a basis for understanding the relevance of the distinction in the contemporary legal system. The subject will critically assess the distinction from a theoretical perspective, testing whether the idea of a distinction between public law and private law can withstand scrutiny. A range of cutting-edge doctrinal issues will be examined and placed in wider context. These include whether public law principles should extend to the activities of non-governmental entities such as private firms and charities; whether the law should recognise a special set of rules to regulate public contracts; whether public authorities should be governed by the ordinary law of tort or a set of special administrative liability principles; procedural divisions between public law and private law; the role of the public interest in private remedies and of private remedies in public law cases; and whether public law issues should be heard by specialist administrative courts. The subject should be of interest to lawyers working in any field in a common law legal system and to those trained in the different traditions of the civil law who are interested in better understanding the structures and assumptions of the common law.
Principal topics are likely to include:
- History of the concept of public law in common law legal systems
- Concepts of public and private
- Implications of a distinction between public law and private law
- Overview of current practice
- Law applicable to non-governmental entities
- Legal framework for public contracts
- Liability of public authorities
- Specialist or generalist courts.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of the nature of the relationship between public and private law in common law legal systems
- Be aware, at an advanced level, of the various ways in which institutions, norms and practices might be categorised as public or private
- Have a sophisticated appreciation of the factors and processes that distinguish public from private law
- Be able to critically examine, analyse and assess the ways in which the bodies of law that are described as ‘public’ and ‘private’ interact with each other.
- Be an engaged participant in debates on the relationship between public and private law
- Have a sophisticated theoretical and doctrinal understanding of each of the topic areas used in the syllabus to explore the relationship between public and private law.
- Be aware, at an advanced level, of the evolving nature of the relationship between public and private law and of the contemporary reasons for its significance.
- Have the cognitive and technical skills to generate critical and creative ideas relating to distinction between public and private law and to critically evaluate existing theories, principles and practices
- Have the cognitive and technical skills to independently examine, research and analyse existing and emerging legal questions concerning the relationship between public and private law
- Have the communication skills to clearly articulate and convey complex information regarding the public/private distinction, thus understood, to relevant specialist and non-specialist audiences.
Last updated: 26 November 2021