Private Law and the Rule of Law: Introduction

Lisa M Austin and Dennis Klimchuk (eds) Private Law and the Rule of Law (Oxford University Press 2014)

16 Pages Posted: 23 Nov 2014

See all articles by Lisa M. Austin

Lisa M. Austin

University of Toronto - Faculty of Law

Dennis Klimchuk

Department of Philosophy, The University of Western Ontario

Date Written: 2014

Abstract

Notwithstanding deep points of disagreement, there is a general — albeit largely implicit — consensus among theorists of the rule of law around what we call the public law presumption: the view that the rule of law is essentially a public law doctrine. We see this view expressed in influential accounts of the rule of law including the work of Dicey, Hayek, Fuller, and Raz. The goal of this book is to challenge the public law presumption. The chapters in this collection all consider the idea that the rule of law concerns the nature of law generally and the conditions under which any relationship — between citizens as well as between citizens and the state — becomes subject to law. They address two major questions. The first question is whether our understanding of the rule of law is enriched by considering how and to what degree it is expressed or realized in private law. For example, many of the chapters address the ways in which the private law secures rule of law values such as non-arbitrariness and guidance. The second question is whether our understanding of the private law is enriched by adding the principles of the rule of law to the traditional list of core private law concepts. For example, many of the chapters show how private law concerns are usefully illuminated through rule of law themes, including strict liability, limitation periods, equity, and ‘boilerplate’. This introduction introduces these themes and the chapters of this volume.

Keywords: rule of law, private law, public law, arbitrariness, arbitrary power, Dicey, Hayek, Fuller, Raz, guidance

Suggested Citation

Austin, Lisa M. and Klimchuk, Dennis, Private Law and the Rule of Law: Introduction (2014). Lisa M Austin and Dennis Klimchuk (eds) Private Law and the Rule of Law (Oxford University Press 2014), Available at SSRN: https://ssrn.com/abstract=2528659

Lisa M. Austin (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Dennis Klimchuk

Department of Philosophy, The University of Western Ontario ( email )

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