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2012•The Cambridge Law JournalOpen access

THE PUBLIC-PRIVATE DIVIDE IN ENGLISH AND DUTCH LAW: A MULTIFUNCTIONAL AND CONTEXT-DEPENDANT DIVIDE

G.T.J.M. Jurgens, F.J. van Ommeren

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Abstract

Abstract The main thesis of this article is that the public-private divide has to be considered as a multifunctional and context-dependant divide. This thesis is demonstrated by comparing English law and Dutch law. The authors describe two areas in which the divide is relevant: judicial review and the applicability of public law standards including human rights. In both legal systems discussions concerning the private-public divide relate to the transfer of power to private bodies. However, in the Dutch – continental – legal system the label ‘public law’ is used in fewer kinds of cases than in the English legal system. This remarkable finding might be explained by the characterization of the public-private division as multifunctional and context-dependant.

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What this paper is about

Abstract The main thesis of this article is that the public-private divide has to be considered as a multifunctional and context-dependant divide. This thesis is demonstrated by comparing English law and Dutch law. The authors describe two areas in which the divide is relevant: judicial review and the applicability of public law standards including human rights. In both legal systems discussions concerning the private-public divide relate to the transfer of power to private bodies. However, in the Dutch – continental – legal system the label ‘public law’ is used in fewer kinds of cases than in the English legal system. This remarkable finding might be explained by the characterization of the public-private division as multifunctional and context-dependant.

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Available abstract

Abstract The main thesis of this article is that the public-private divide has to be considered as a multifunctional and context-dependant divide. This thesis is demonstrated by comparing English law and Dutch law. The authors describe two areas in which the divide is relevant: judicial review and the applicability of public law standards including human rights. In both legal systems discussions concerning the private-public divide relate to the transfer of power to private bodies. However, in the Dutch – continental – legal system the label ‘public law’ is used in fewer kinds of cases than in the English legal system. This remarkable finding might be explained by the characterization of the public-private division as multifunctional and context-dependant.

Key concepts: Private law, Context (archaeology), Law, Political science, Public law, Law and economics, Sociology, Geography

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