Chapter 5: The conflict between rechtsstaat and the rule of law in the United States
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The previous chapter traced the development of the American version of the rule of law from colonial times to the civil war. This chapter describes how some legal scholars’ views of that concept in the last 150 years have either confused it with rechtsstaat or even dismissed both concepts altogether: H.L.A. Hart, Rawls, Dworkin, and Unger all focus on equality, minimizing the value of liberty. The chapter compares these views with those of other legal scholars who find the rule of law more valuable than ever in protecting liberty and economic development (Fuller, Hayek, Oakeshott, Leoni, and Zywicki). The chapter leads into the next chapter of the book on economic development, as it shows how the underlying tension concerning economic development is considered in legal scholars’ views of the rule of law.

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