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
More Options
- Find it at other libraries via WorldCat/OCLC
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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):
- Administrative law
- Comparative law
- Germany
- Government liability
- Government liability–Germany
- Government liability–Great Britain
- Great Britain
- Judicial review of administrative acts
- Judicial review of administrative acts–Germany
- Judicial review of administrative acts–Great Britain
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