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Democracy, Agency, and the StateTheory with Comparative Intent$
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Guillermo O'Donnell

Print publication date: 2010

Print ISBN-13: 9780199587612

Published to Oxford Scholarship Online: September 2010

DOI: 10.1093/acprof:oso/9780199587612.001.0001

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The State as Law: Contributions and Ambivalences 1

The State as Law: Contributions and Ambivalences 1

Chapter:
(p.93) 5 The State as Law: Contributions and Ambivalences1
Source:
Democracy, Agency, and the State
Author(s):

Guillermo O'Donnell (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199587612.003.0006

This chapter insists and elaborates on an assertion made in preceding chapters, namely, that the legal system is an intrinsic part of the state and that, consequently, it is a mistake to conflate it with its most visible institutions — the bureaucracy. It examines conceptions of the rule of law (or estado de derecho), with attention to the characteristics that should approximate an authentically democratic rule of law. Yet after highlighting the contributions that the law makes to democracy, and to social order in general, the chapter points to one of its constitutive tensions: the unequal relations that that same law sanctions and backs in capitalist social relations and in the hierarchically ordered institutions of state and society. In addition, the chapter notes the extensive and in general poorly controlled quasi-lawmaking and adjudication that have various state bureaucracies.

Keywords:   law, legal theory, rule of law, sociology of law, legal inequality, capitalism, bureaucracy

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