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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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The Power of the Rule of Law

The Power of the Rule of Law

Chapter:
(p.269) 12 The Power of the Rule of Law
Source:
Private Law and the Rule of Law
Author(s):

Lisa M Austin

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198729327.003.0013

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

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