This paper addresses issues that arise from the recognition of private arbitrary power as a rule of law problem. It contrasts public with private arbitrary power, arguing that both ought to be a central preoccupation of any compelling conception of the rule of law. The paper 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 makes the case for a pro-regulatory conception of the rule of law. That conception has been criticised as entailing intellectual sleight of hand, or as being ‘unnecessary’ where other values support the regulatory and welfare state. The paper illustrates by reference to the lack of regulation during the Covid-19 pandemic, and the latent state-scepticism in rule of law commentary during the pandemic, why both objections are misguided. Recognising the rule of law’s social dimension is a very ‘necessary’ turn in public 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. This paper focuses on transnational corporate actors, who exemplify the relevance of the analytical question about private power and its limitations. As part of the inquiry on the sources of such private power, the paper explores the function of the rule of law in both generating and mitigating private power. Furthermore, the absence of obvious resources for rule of law limits on transnational corporate power prompts the question of how to reconstruct the ideal of the rule of law 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.