Chapter 3 - Public Benefit and the Substantive Public Law-Private Law Divide
Kathryn Chan, The Public-Private Nature of Charity Law (Oxford: Hart Bloomsbury, 2016)
39 Pages Posted: 2 Feb 2018
Date Written: July 1, 2016
The rule that an institution must be ‘for the public benefit’ in order to be charitable is both the most distinguishing, and the most controversial, substantive doctrine of the law of charities. In this piece I argue that the public benefit rule is a doctrinal hybrid, which feels the strength of public law and private law thinking in equal or near equal measure. I trace how the equilibrium between the doctrine’s constituent public law and private law elements has changed in recent years, and compare the public benefit rule with the quintessentially public law rule that government must act 'in the public interest'. The final version of this piece forms one chapter of a longer book, the central project of which is to map the relationship of the law of charities to the contested categories of ‘public law’ and ‘private law’.
Keywords: charity law; public law-private law divide; public benefit
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