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Law's CommunityLegal Theory in Sociological Perspective$
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Roger Cotterrell

Print publication date: 1997

Print ISBN-13: 9780198264903

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198264903.001.0001

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Social Foundations of the Rule of Law: Franz Neumann and Otto Kirchheimer

Social Foundations of the Rule of Law: Franz Neumann and Otto Kirchheimer

(p.160) 8 Social Foundations of the Rule of Law: Franz Neumann and Otto Kirchheimer
Law's Community

Roger Cotterrell

Oxford University Press

The theme of historical transformations of legal rationality can be further developed through an examination of the changing social foundations of the idea of the Rule of Law, illuminated by Franz Neumann and Otto Kirchheimer. Neumann's view that the Rule of Law reconciles, in specific historical conditions, the contradictory elements of law as sovereign power or will (voluntas)and as reason or principle (ratio) is important to the arguments in Part III of this book. The idea of the Rule of Law recognises centralised political power as the immediate origin of modern law while emphasising certain values that may be asserted against government. But what does that formulation entail in contemporary conditions? Historical evidence suggests why an appropriate reconciliation of ratio and voluntas may be hard to maintain. This chapter discusses the legal invisibility of change, the Rule of Law of competitive society, the ‘England problem’ and the Rule of Law, and the experience of Weimar Germany.

Keywords:   Rule of Law, Franz Neumann, Otto Kirchheimer, will, reason, law, competitive society, England, Weimar Germany

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