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Private Law and the Rule of Law$
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Lisa M Austin and Dennis Klimchuk

Print publication date: 2014

Print ISBN-13: 9780198729327

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198729327.001.0001

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Equity and the Rule of Law

Equity and the Rule of Law

(p.247) 11 Equity and the Rule of Law
Private Law and the Rule of Law

Dennis Klimchuk

Oxford University Press

This chapter makes a case against two views that are widely held, if only implicitly. The first is that the rule of law is essentially a public law doctrine. The chapter argues that behind the various principles commonly said to be rule of law principles—e.g. that the law must be clear and prospective; that the powers of government must be separated—is a more basic principle that governs not just the relation between citizens and the state but rather legal relations generally, namely that under law persons cannot subject others to arbitrary power. The second view is that equity is at odds with the rule of law. This chapter argues, in contrast, that at least those doctrines of the law of equity that are equitable in what the chapter claims to be Aristotle’s sense (including for example estoppel and trusts) uphold the rule of law, understood as opposed to arbitrary power.

Keywords:   equity, rule of law, arbitrariness, estoppel, trusts

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