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John O. Haley

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Introduction

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

The introduction takes up David Marsden’s argument that the rise of the modern business enterprise relies on two great innovations: limited liability and the contract of employment. It outlines the authors’ objective to analyse the character of the contract of employment in the United Kingdom, Australia and New Zealand and to examine the interrelationship between the contract of employment and the political, economic and social dynamics that have shaped the employment environment in each jurisdiction. Keywords comparative employment law, contract of employment

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Maurice Adams, Jaakko Husa and Marieke Oderkerk

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Table of legislation

A Comparative Analysis of Key Issues

Edited by Michael Littlewood and Craig Elliffe

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Table of cases

A Comparative Analysis of Key Issues

Edited by Michael Littlewood and Craig Elliffe

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Bernardo Sordi

This chapter reflects on the history of administrative law against the background of the emergence and evolution of a distinct form of administrative power within the European state over the last two and half centuries. The chapter outlines, in a very general way, answers to several comparative questions: in what ways have the various paths to droit administratif in France, or Verwaltungsrecht in Germany, converged or diverged from the path to administrative law in England (and later America)? Similarly, how have the German or French paths to the Rechtsstaat or the État de droit, respectively, converged or diverged from the Anglo-American path to the Rule of Law? This contribution proceeds on the premise that the particular routes to droit administratif, Verwaltungsrecht, or administrative law must be understood with at least some sensitivity to the various processes of state-formation as well as to the different constitutional histories of the countries concerned. Nevertheless, it would be an error to believe that a comparison of state-building processes could mechanistically provide a clear scale for measuring the intensity of the processes by which a distinct law of administration took shape. The history of state-formation in the various corners of Europe proceeded not merely according to its own specific tempos but also on a different factual level from that of the conceptual and legal representation, which is in fact the focus of our discussion. Thus, it must be stressed that the divergences and convergences we propose to trace are limited to representations within legal orders, and do not extend to the underlying history of state power per se. The analysis confines itself to explaining the different techniques of conceptualization employed at different times and in different national contexts in relation to the identification and execution of public tasks understood as specifically belonging to the administrative sphere. Our aim here is simply to define the different juridical articulations within which the institutional enterprises definable as states emerged historically. A second premise, which is of a chronological nature, flows from the first. The conscious emergence of a power, tasks, or law considered as ‘administrative’ is a relatively recent phenomenon, something reflected in the historical development of languages, lexicons, and concepts. In France, for example, the terms administration publique and bureaucratie did not become widely used before 1750, and droit administratif did not make its first appearance until the early years of the nineteenth century. Moreover, Verwaltungsrecht in Germany, or administrative law in the English-speaking world, did not appear until well into the nineteenth century (and in the English case arguably only came into wide usage in the twentieth). We must therefore be aware that the question of administrative power or administrative law has its own history, which is not necessarily coterminous with history of forms of public authority. Rather, the emergence of a specifically ‘administrative’ power or law is intrinsically a modern phenomenon, dating back no more than 200 years or so. Thus, the questions this chapter seeks to answer only make sense for the past two centuries: for the nineteenth century, in which an identifiably ‘administrative’ space, as well as corresponding understandings of ‘administrative’ power and law, emerged; and for the twentieth century, in which the vast expansion of ‘administrative’ personnel, responsibilities, organizations, and establishments (including, perhaps most importantly, the diffusion of public services and of social administration) became an inescapable feature of modern governance. It is precisely in this time span that the divergences and convergences between the different paths of state-formation become noticeable and measurable.

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Preface

A Comparative Analysis of Key Issues

Edited by Michael Littlewood and Craig Elliffe

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Veronique Magnier

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Introduction

Second Edition

Susan Rose-Ackerman, Peter L. Lindseth and Blake Emerson

This volume, like the first edition, attempts to capture the complexity of the field of comparative administrative law while distilling certain key elements for further study. Part I concentrates on the relationship between administrative and constitutional law—uncertain, contested, and deeply essential. Part II focuses on a key aspect of government structure—administrative independence with its manifold implications for separation of powers, democratic self-government, and the boundary between law, politics, and policy. Next, Part III highlights the tensions between impartial expertise and public accountability, especially when the executive and independent agencies make general policies. Part IV discusses administrative litigation and the role of the courts in reviewing both individual decisions and secondary norms (‘rules’ in US parlance). Part V considers how administrative law is shaping and is being shaped by the changing boundaries of the state. Part V.A considers the shifting boundary between the public and the private sectors, and part V.B concentrates explicitly on the European Union and its complex relationship with the Member States.

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Capital gains taxes—a comparative survey

A Comparative Analysis of Key Issues

Michael Littlewood

This chapter surveys the key issues in the design of capital gains taxes (whether the tax should be a separate tax or part of the income tax; whether it should be based on realisation or accrual; the territorial scope of the tax; the tax consequences of death and emigration; exemptions and preferences; and so on) by reference to the tax systems examined more closely in the other chapters of this book, namely those of Australia, Canada, China, India, the Netherlands, New Zealand, South Africa, the UK and the US. Keywords: taxation; capital gains tax; comparative; tax reform