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) and the torts of breach of statutory duty and public nuisance. Do these kinds of claims raise both dominium and imperium issues? 3 Where the exercise of imperium prejudiced individuals, later civil law, with the help of canon law, developed specific public law procedures by which an interested party could appeal (appelare) against an administrative—or indeed judicial—decision (Mestre, Introduction historique au droit administratif frangais, 1985, PUF, pp 14CM1). Such an administrative appeal procedure has resulted, today, in two quite separate recours. There is, first, the normal appeals process; this process is now seen simply as part of civil procedure, that is to say the hierarchy of the courts. (But is civil procedure public or private law?) Secondly, there are separate public law remedies for use against administrative decisions: here the courts are reviewing, to put it in Roman law terms, the decisions of those charged with imperium (cf Dig 49.4.1.3) to see if they have exceeded their powers (recours pour excès de pouvoir). Equally, in the common law, the judicial review remedies (Supreme Court Act 1981, s 31), although quite separate from actions in debt and damages (cf Wandsworth LBC v Winder [1985] AC 461), are not always easily distinguishable from appeals (cf Chief Constable ofN Wales v Evans [1982] 1 WLR 1155, pp 1174–75). Moreover, some remedies (habeas corpus, declaration and injunction) cannot, in themselves, be easily classified as either public or private. 4 Several specific questions arise. To what extent can, and should, private law remedies be available for the infringement of public law rights? To what extent should private law remedies be allowed to infringe constitutional rights? (Cf Derbyshire CC v The Times [1993] AC 534.) Should public law remedies ever be available for the protection of private rights? Does the remedy of damages raise special problems with respect to imperium? Are relator actions public or private claims? (Cf Gouriet v UPOW [1978] AC 435.) To what extent do these public and private law of actions issues interrelate with the law of persons (for example, with respect to dignity or privacy)? To what extent can the existence of public law remedies influence the availability of private law claims? Does the Human Rights Act 1998 add to these complications? 5 The confusion at the level of actions and procedure between the public and the private might suggest that the categories of public and private law are outdated (Harlow (1980) 43 MLR 241; cf Samuel (1983) 46 MLR 558; (1988) 8 LS 277). Yet the difference is fundamental to the French model, if not to civil law in general, and the difference has resulted in quite specific legal developments. The most notable is in respect of administrative liability, where compensation for damage resulting from State action in France is founded upon a quite different basis from ordinary civil liability. In particular, the role of the risk and the equality
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