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.
If power corrupts, whose power should we worry about most? Following a teleological rule of law conception focused on reducing the arbitrary exercise of power (Krygier), this paper argues that we need to focus on the consequences of arbitrary power for its subjects rather than assume that the rule of law applies to a specific category of actors. Although rule of law principles are most easily achievable through state institutions, these principles also have meaning for non-state actors. This paper zooms in on the arbitrary actions of large private actors, multinational companies, because these exemplify the problem of private power beyond the reach of nation states. The paper argues that these situations put the rule of law to the test, because there are no obvious resources for rule of law limits on such private actors. The question to be addressed then is how the rule of law idea needs to be reconstructed to bring the power of private actors beyond the state within its scope.
The rule of law is conventionally cast as an ideal for law and applied to states. But the ideal is relevant to all entities in a position to exercise untempered power with harmful effect. And its partisans should be open to any remedies that might help avoid or reduce such dangers. If untempered, arbitrary, power is harmful, then the ideal of the rule of law must follow the power, whatever its source, so long as the harms it can do are significant. And they often are. Significant power can be found in many places, and if one seeks to approach the ideal, one should explore them. And one will need all the help one can get, both to make laws effective, and beyond the law. With the important qualification that ought implies can, and subject to potentially competing values, there is no prima facie reason why non-state power or non-state responses to power should lie outside the domain of the ideal of the rule of law.
If private arbitrary power is equivalent to state arbitrary power, and if state arbitrary power is a Rule of Law problem, then private arbitrary power is a Rule of Law problem. In accepting state arbitrary power as a Rule of Law problem and in questioning whether private arbitrary power is equivalent to state arbitrary power, I explore a minimalist, yet extreme, departure from the state-based concept: giant global tech companies. The departure is minimalist as these corporations exert state-like control within their (virtual) territorial spheres. The example is extreme as if the Rule of Law is to apply to any aspect of private power, it applies to these companies. In considering Google, I suggest that, despite the minimalist departure, dissimilarities in the private/public exercise of arbitrary power temper claims that private arbitrary power is a Rule of Law problem and, given the extreme nature, this can be extended to any claim that private arbitrary power is a Rule of Law problem.