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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 Rule of Law as the Rule of Private Law

The Rule of Law as the Rule of Private Law

Chapter:
(p.67) 3 The Rule of Law as the Rule of Private Law
Source:
Private Law and the Rule of Law
Author(s):

TRS Allan

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198729327.003.0004

A study of the contrasting views of Joseph Raz and FA Hayek on the rule of law reveals the limitations of a mainly instrumentalist approach to law. When law is viewed in the light of the ideal of the rule of law, it is not primarily a governmental tool but rather a framework for the operation of civil society. Our concept of law is closely related to the value of liberty, understood as independence: that value explains the connection between law and justice implicit in Lon Fuller’s ‘inner morality of law’. Liberty as independence is also the value chiefly served by the reliable enforcement of private law, which secures each person an immunity from arbitrary interference. Private law has a certain philosophical priority over public law, reflecting the intrinsic connection between law and liberty. That priority underpins AV Dicey’s famous exposition of the rule of law.

Keywords:   Joseph Raz, FA Hayek, Lon Fuller, AV Dicey, civil society, liberty as independence, public law

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