John Hasnas, Duke University
Advocates of the privatization of law often assume that unless law springs from some act of agreement, some express or implicit social contract by which individuals consent to be bound, it is nothing more than force. In this Article, I argue that this is a false dilemma. Although law is rarely grounded in consent, this does not imply that law necessarily gives some individuals command over others. Law can arise through a process of evolution. When this is the case, those subject to law are indeed bound, but not by the will of any particular human beings. Although this depoliticized law is inherently coercive, it is not inherently a vehicle for domination. This Article argues that such a system of depoliticized law is consistent with the ideal of the rule of law, and, in fact, is free market law, when that phrase is properly understood.
Hasnas, John (2008) "The Depoliticization of Law," Theoretical Inquiries in Law: Vol. 9 : No. 2, Article 9. Available at: http://www.bepress.com/til/default/vol9/iss2/art9
Comentários: recomendo este artigo. Vai na linha do que defendo sobre a reprivatização do Direito Civil, devolvendo-o aos privados...onde sempre esteve e de onde não deveria ter saído.