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.
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).