Henry E. Smith*
June 14, 2013
[in Lisa Austin and Dennis Klimchuk (eds.) Private Law and the Rule of Law (Oxford:
Oxford University Press, forthcoming]
Abstract
Formalism plays a major part in property law and in the rule of law. For many,
the rule of law requires protection of property and the maintenance of its formal nature.
And yet property and private law more generally exhibit no shortage of equitable
doctrines, which call for infusions of ex post judicial discretion and invocations of
fairness and morality. Property law and equity appear to be enemies. This paper argues
that this tension is overblown, and that equity protects both property and the rule of law
against opportunistic evasion. Equity helps maintain the general, stable structures within
property called for by the rule of law. Likewise, the rule-of-law criteria themselves are
formal and can be evaded opportunistically. Prevention of substantive evasion of the rule
of law requires reference to norms outside the formal law, in a form of macro equity.
Just as moral and information cost theories tend to converge at the level of legal doctrine,
so too formal law and natural justice can be seen to point in similar directions at the level
of the law as a whole.
Introduction
Property and the rule of law are often thought to be almost two sides of the same
coin. The protection of property rights protects individuals from arbitrary state action,
thereby giving substance to the rule of law. For those of a more procedural or formalist
bent, the features of generality and stability often emphasized in property law are
precisely at the core of the rule of law. Furthermore, property itself is in many ways
more general and formal than other areas of private law, which again dovetails with the
familiar rule of law criteria. Nevertheless, upon closer inspection, property law itself
employs a variety of equitable standards, which give courts discretion, and appear to raise
Henry E. Smith*June 14, 2013[in Lisa Austin and Dennis Klimchuk (eds.) Private Law and the Rule of Law (Oxford:Oxford University Press, forthcoming]AbstractFormalism plays a major part in property law and in the rule of law. For many,the rule of law requires protection of property and the maintenance of its formal nature.And yet property and private law more generally exhibit no shortage of equitabledoctrines, which call for infusions of ex post judicial discretion and invocations offairness and morality. Property law and equity appear to be enemies. This paper arguesthat this tension is overblown, and that equity protects both property and the rule of lawagainst opportunistic evasion. Equity helps maintain the general, stable structures withinproperty called for by the rule of law. Likewise, the rule-of-law criteria themselves areformal and can be evaded opportunistically. Prevention of substantive evasion of the ruleof law requires reference to norms outside the formal law, in a form of macro equity.Just as moral and information cost theories tend to converge at the level of legal doctrine,so too formal law and natural justice can be seen to point in similar directions at the levelof the law as a whole.IntroductionProperty and the rule of law are often thought to be almost two sides of the samecoin. The protection of property rights protects individuals from arbitrary state action,thereby giving substance to the rule of law. For those of a more procedural or formalistbent, the features of generality and stability often emphasized in property law areprecisely at the core of the rule of law. Furthermore, property itself is in many waysmore general and formal than other areas of private law, which again dovetails with thefamiliar rule of law criteria. Nevertheless, upon closer inspection, property law itselfemploys a variety of equitable standards, which give courts discretion, and appear to raise
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