Jump to ContentJump to Main Navigation
Private Law and the Rule of Law$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 14 July 2020

The Power of the Rule of Law

The Power of the Rule of Law

(p.269) 12 The Power of the Rule of Law
Private Law and the Rule of Law

Lisa M Austin

Oxford University Press

Many articulations of the rule of law cast it in terms of constraint. Similarly, many articulations of private law cast private law in terms of obligations that constrain what we are otherwise free to do. This chapter argues that in order to get clear on both the nature of the rule of law and the nature of private law we need to move beyond this framework of constraint. The law of private property does not protect a sphere of individual liberty from interference from others and the state, but confers legal powers to secure legal consequences not otherwise possible. This understanding can both enrich our understanding of the guidance function of the rule of law as well as sharpen the concern about arbitrariness: if the rule-of-law constrains the arbitrary exercise of power, private ownership seems to involve legal powers that can be exercised arbitrarily.

Keywords:   guidance, rule of law, arbitrariness, property, powers, private law

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .