Anarchy, private power and the rule of law

As part of a larger account of the social dimension of the rule of law, this paper addresses key issues that arise from the recognition of private arbitrary power as a rule of law problem. It compares and contrasts public with private arbitrary power, arguing that there is no relevant moral difference for the purposes of the rule of law. It reflects on the role of coercion in the concept of ‘arbitrary power,’ and argues that both public and private arbitrary power can be non-coercive. In this vein, the author explores the relationship between arbitrariness, freedom and consent in interactions involving private wrongs that fall short of being coercive (e.g. exploitation, harassment, manipulation). It concludes by outlining a theory of what political commitments a state must take to avoid or curtail private arbitrary power, and makes the case that there is an extensive role for legal rights and duties among such commitments. That is the social dimension of the rule of law.