Tradition and change in administrative law : an Anglo-German comparison

Tradition and change in administrative law : an Anglo-German comparison

Tradition and change in administrative law : an Anglo-German comparison

Law of Europe > Regional comparative and uniform law > Administrative law > Administrative process > Administrative courts and procedure. Judicial review

Edition Details

  • Creator or Attribution (Responsibility): Martina Künnecke
  • Language: English
  • Jurisdiction(s): Germany
  • Publication Information: Berlin ; New York : Springer, ©2007
  • Publication Type (Medium): Electronic books
  • Material: Document, Internet resource
  • Type: Internet Resource, Computer File
  • Permalink: http://books.lawlegal.eu/tradition-and-change-in-administrative-law-an-anglo-german-comparison/ (Stable identifier)

Additional Format

Print version: Ku?nnecke, Martina. Tradition and change in administrative law. Berlin ; New York: Springer, ©2007 (DLC) 2006938023 (OCoLC)77548389

Short Description

1 online resource (XII, 266 pages)

Purpose and Intended Audience

Useful for students learning an area of law, Tradition and change in administrative law : an Anglo-German comparison is also useful for lawyers seeking to apply the law to issues arising in practice.

Research References

  • Providing references to further research sources: Search

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Bibliographic information

  • Publisher: Springer
  • Responsable Person: Martina Ku?nnecke.
  • Publication Date: 2007
  • Copyright Date: 2007
  • Location: Berlin
  • Country/State: Germany
  • Number of Editions: 13 editions
  • First edition Date: 2006
  • Last edition Date: 2007
  • Languages: English
  • Library of Congress Code: KJC5647
  • Dewey Code: 344.430460269
  • ISBN: 9783540486893 3540486895 9783540486886 3540486887
  • OCLC: 191453219

Main Contents

Front Matter; Introduction; The development of judicial review of administrative action; Judicial review of discretionary powers; Procedural errors in the administrative procedure; Governmental liability; Tradition and change; Back Matter.

Table of Contents

Chapter One Introduction – 1

The comparative method in the field of public law – 4

Chapter Two The development of judicial review of administrative action. 11
I. Historical introduction…
1. The common law courts – 11

2. The tribunal system – 18

3. The development of separate Administrative Courts in nineteenth
century Germany – 21

4. The administrative law tradition in Germany – 22

II. The constitutional role of the courts – 25

1. The constitutional basis for the role of the courts in judicial review
in England – 25

2. The Basic Law and the Administrative Courts – 28

III. The grounds of review – 31

1. The grounds of review for administrative action in England – 31

2. The grounds of review for administrative action in Germany – 34

IV. Administrative law remedies for unlawful government action – 39

1. Remedies in English courts – 39

2. Remedies in German Administrative Courts…42
V. Procedural aspects – 44

1. The adversarial procedure – 44

2. The inquisitorial procedure – 46

VI. Constitutional adjudication – the institutional dimension…47
1. Introduction – 47

2. The ancient office of Lord Chancellor – 49

3. The new Supreme Court – 51

4. The long path to Germany's Constitutional Court – 55

5. The Supreme Court Appointments Commission – 56

6. Diversity in the appointments process – 58

7. Judicial independence under the Basic Law – 60

8. Qualification for judicial office in Germany – 62

a) The selection process – federal level – 63

b) The selection process at the Federal Constitutional Court – 66

c) The selection process at state level – 67

V II. Conclusion – 69

Chapter Three Judicial review of discretionary powers – 73

I. Introduction – 73

1. The concept of discretion and the constitutional basis for
judicial review of discretionary powers in England – 74

2. The concept of discretion and the constitutional basis for
judicial review of discretionary powers in Germany – 77

3. Evaluation – 83

II. Comparative cases – 83

1. Failure to exercise discretion under English law – 83

a) Review of self-created rules – 84

b) Unauthorised delegation of power – 86

c) Acting under dictation – 86

d) Fettering discretion by contractual undertaking – 87

2. Failure to exercise discretion in German administrative law – 89

a) Review of self-created rules – 89

b) Unauthorised delegation of power – 89

c) Fettering discretion by contractual undertaking – 90

3. Evaluation – 91

4. Abuse of discretion in English law – 92

a) Use of power for an improper purpose – 92

b) Unreasonableness – 93

c) The principle of proportionality in English administrative law – 95

d) The principle of legitimate expectation in English
administrative law – 105

5. Abuse of discretion in German law – 110

a) The principle of proportionality in German administrative law – 110

b) Human rights protection and discretion in Germany – 114

c) Undefined legal concepts – 119

d) European standards for the intensity of review – 122

e) The principle of legitimate expectations (Vertrauensschutz) in
German law – 124

f) The Europeanisation of the principle of legitimate expectations
in German law – 127

g) The principle of equality – 128

III. Conclusion – 131

Chapter Four Procedural errors in the administrative procedure – 137

I. Introduction – 137

1. The rules of natural justice in English law – 138

2. The duty to act fairly – 143

3. The duty to give reasons – 144

4. Legal consequences of procedural errors – 147

5. Germany's Law on Administrative Procedure
(Verwaltungsverfahrensgesetz) 1976 – 147

6. The right to a hearing – 149

7. The duty to give reasons – 150

8. Legal consequences of procedural errors – 151

9. Evaluation – 155

II. Comparative cases – 157

1. The right to a hearing – 157

a) Legal effects of denial of a hearing in English courts – 157

b) Legal effects of denial of a hearing – Germany – 159

c) Evaluation – 160

2. The duty to give reasons – 160

a) Deficient reasons made good in course of proceedings – England.. 160
b) Deficient reasons made good in course of proceedings – Germany 161
c) Evaluation – 162

III. European influences – 163

1. English administrative law and Art. 6(1) of the European
Convention on Human Rights – 163

2. German administrative law and Art. 6(1) of the European
Convention on Human Rights…166
3. The European Court of Justice and German administrative
procedure law – 167

IV. Conclusion – 169

Chapter Five Governmental liability – 173

I. Introduction – 173

1. Governmental liability in English courts – 173

a) N egligence – 174

b) Breach of statutory duty – 182

c) Vicarious liability…183
d) Misfeasance in public office – 183

e) Crown immunity – 184

2. Governmental liability in Germany – 185

a) Tortious liability according to section 839 of the
Civil Code (BGB) in connection with Art. 34 of the Basic Law – 186

aa) Persons exercising public office – 188

bb) Breach of duty – 188

cc) Duty towards a third party – 189

3. Evaluation – 190

II. Comparative cases – governmental liability and Human Rights – 191

1. Governmental liability for breaches of Human rights in the UK – 191

a) The English law of negligence under European influence – 191

aa) The ruling of the European Court of Human Rights in
Osman v UK – 192

bb) Impact of the ruling in Osman on subsequent decisions – 194

cc) The ruling of the European Court of Human Rights
in Z v UK – 196

dd) Impact of the decision in Z v UK on the law of negligence – 198

b) Damages for breaches of the Human Rights Act 1998 – 201

2. Child abuse claims in Germany – 203

a) Section 839 BGB in connection with Art. 34 Basic Law – 205

aa) Duty of care owed to a third party – 205

bb) Fault – 206

cc) Causation – 206

b) The constitutional framework for the law governing childcare – 206

c) Judicial review of administrative decisions in childcare cases – 207

d) The VIolation of basic rights and compensation – 210

3. Evaluation – 211

III. Comparative cases – member state liability in German and
English courts – 215

1. The nature of the remedy in domestic law – Germany – 217

a) Rights under Community law and duty towards a third party in
Germ an law – 218

b) The fault requirement in German law – 219

c) Europeanisation of the German law of governmental liability – 220

2. The nature of the remedy in domestic law – United Kingdom – 222

3. The condition of “sufficiently serious breach” in German
and English decisions – 223

4. Causation in member state liability – 231

a) R v Secretary of State for the Home Department, ex p Gallagher – 234

b) Germany – breach of procedural provisions and causation – 235

IV. Conclusion – 241

Chapter Six Tradition and change – 243

Structured Subjects (Headings):

Unstructured Subjects (Headings):

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